Terms And Conditions
IMPORTANT TERMS
•Please read this Agreement carefully, as it contains important information regarding your legal rights, including without limitation your RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY (as detailed in Section 4 of this Agreement) and your agreement to MANDATORY ARBITRATION AND WAIVER OF CLASS RELIEF (as detailed in Section 7 of this Agreement).
•Monthly membership will automatically renew on a month-to-month basis at the end of the obligation period, unless cancelled under Section 3 of this Agreement. Paid-in-full memberships automatically expire unless renewed. See Section 1.3 of this Agreement for more information.
•You may choose to cancel this Agreement at any time prior to midnight of the fifth (5th) business day of your Home Club (as identified on page 1) after the date of this Agreement, excluding Sundays and holidays. To cancel this Agreement, mail, email or deliver a signed and dated notice that states you, the buyer, are canceling this Agreement, or words of similar effect. The notice shall be sent via first-class mail, via email from an email address on file with Equinox, or delivered in person to 440 Portage Avenue. Palo Alto, CA94306, Palo Alto, CA 94306. Email cancellations shall be sent to eqxcacancel@equinox.com. See Section 3.1 of this Agreement for additional information.
By signing this Agreement, I understand that I am committing to a twelve (12) month obligation period which I cannot cancel early, except for the limited reasons described in Section 3.1 and Section 3.2 of the Agreement.
By signing below, I am acknowledging that I have received and read and understand this Agreement and the following membership terms, and I am hereby agreeing to all terms and conditions of this Agreement, including without limitation, my compliance with this Agreement, MY RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY (as detailed in Section 4 of this Agreement) and my compliance with the Equinox Policies described in this Agreement.
MEMBERSHIP TERMS
1.YOUR MEMBERSHIP
1.1Overview: This Agreement sets forth the terms and conditions that apply to your membership (“Membership”) to Equinox Fitness Clubs and, if included within your Membership class, Equinox Sports Clubs (collectively, “Clubs”). You are responsible for complying with this Agreement. A copy of your Agreement is available in your account on http://www.equinox.com and, if you provided an email address, will be e-mailed to you upon joining. You may also contact Membership Administration if you need to obtain another copy of your Agreement.
1.2Minimum Commitment: Your Membership is for an initial twelve (12) month commitment period (the “Initial Period”) and, except for those limited cancellation rights expressly set forth in Section 3.1 and 3.2 below, you may not cancel your Membership or otherwise terminate this Agreement during the Initial Period.
1.3Renewals: If you have a monthly Membership, your Membership and this Agreement will automatically renew at the end of the Initial Period and continue on a month-to-month basis until your Membership is cancelled by you or Equinox, as described in Section 3. If you have a paid-in-full annual Membership, your Membership and this Agreement will automatically expire at the end of the Initial Period, unless you renew your Membership. Equinox reserves the right to contact you, using any contact information on-file with Equinox, to discuss your renewal options. You may also visit or contact your Home Club to renew your Membership. Membership Dues for all for monthly and paid-in-full Membership renewals are subject to pricing changes, as described in Section 2.1.
1.4Membership Freezes: You have certain rights to temporarily suspend or “freeze” your account for up to three (3) months, or longer for medically-necessitated freezes, as further described in the Equinox Policies (as defined in Section 5.1). Non-medical freezes are subject to an additional fee.
1.5Non-Transferable: Your Membership is personal to you and is non-transferable and non-descendible. Only you may use your Membership, and you may not permit any other individual to access and use any Club under your Membership.
1.6Changes to Membership Class: You may change your Membership class at any time, subject to the following conditions. Your Membership Dues (as defined in Section 2.1) will be increased (or decreased) to the then-current membership rate for your new Membership class, and you will be required to sign a new Payment/Electronic Funds Transfer Authorization form and, in Equinox’s discretion, a new membership agreement. Equinox also reserves the right to charge you an upgrade fee. Equinox reserves the right to, in its discretion at any time, modify the names of and/or service offerings provided within one or more of its Membership classes.
1.7Home Club: Your “Home Club” is the Club at which your Membership was purchased and is listed at the beginning of this Agreement. You may transfer your Home Club to another Club, subject to the following conditions. You may only transfer your Home Club to another Club within your Membership class. If you have a “Select” Membership, this means you may only transfer to another Club that offers “Select” membership (and your Membership Dues will be adjusted to the then-current membership rate for such other Club). If you want to transfer to a Club that does not offer “Select” membership, you will need to upgrade your Membership class in order to do so. Equinox reserves the right to charge you a fee for transferring your Home Club.
1.8Club Exclusions: You may only access and use the Club(s) within your purchased Membership class. During your Membership, Equinox may, in its discretion, exclude certain Clubs from various Membership classes or otherwise limit your access to certain Clubs. Once Equinox implements an exclusion or limitation, you will no longer have the right to access or use such affected Club(s), notwithstanding any “All Access” or other similar designation of Membership class and/or notwithstanding that such Club(s) may be located within your regional area. Contact Membership Administration for a current list of excluded Clubs.
1.9Club Closures: During your Membership, Equinox may, in its discretion, temporarily close or suspend or limit your access to certain Clubs or areas, features or amenities of a Club, for purposes of renovation, special events or otherwise, at any time and in its sole discretion.
1.10Corporate Members: If you join Equinox under an arrangement between your current employer and Equinox, additional or alternative, pricing, benefits, terms and conditions may apply to your Membership, as agreed in the terms between your employer and Equinox. Depending on the terms between your employer and Equinox, your Membership may automatically cancel once you leave your employment. If there is a conflict between this Agreement and the terms between your employer and Equinox, those terms between your employer and Equinox will control. Contact your employer with any questions regarding any special terms that may apply to your corporate Membership.
1.11Home Club Offerings. Equinox Clubs provide a variety of recreational services, including providing strength equipment, free weights, and cardiovascular machines for your use, as well as group fitness classes, yoga, personal training services, Pilates services, indoor cycling classes, locker rooms, spa treatments, retail, juice bars, and at certain Clubs steam rooms, boxing studios and/or childcare services. A description of the services, facilities and hours of access for your Home Club, and each other Club, is available at: http://www.equinox.com/clubs. Additional details surrounding Equinox’s group fitness classes, personal training, Pilates and spa offerings are also available on http://www.equinox.com. Equinox reserves the right to make reasonable changes to the type or quantity of classes or equipment offered at its Clubs, including your Home Club.
2.PAYMENT POLICIES
2.1Initiation Fee; Membership Dues: Unless expressly waived by Equinox, you will be required to pay a one-time initiation fee, which is due and payable as of the date you sign this Agreement. During the Initial Period, your monthly (or, for paid-in-full memberships, annual) membership dues (“Membership Dues”) will remain at the rate set forth on page 1 of this Agreement (unless you change your Membership class or Home Club, as described in Section 1.6 and Section 1.7.) After the Initial Period, Equinox may, in its discretion, increase or otherwise modify your Membership Dues, upon at least thirty (30) days’ notice to you. Equinox may also, in its discretion and at any time, change the date on which electronic funds transfers are processed, upon at least thirty (30) days’ notice to you. Notices under this Section 2.1 will be provided as described in Section 6. Membership Dues are not based on or related to actual usage of Clubs and, unless you have frozen your Membership in accordance with Equinox Policies, you are responsible for the payment of your Membership Dues in full regardless of your use of, or failure to use, any Clubs.
2.2Ancillary Charges: You are responsible for paying all amounts you incur during your Membership, including without limitation fees for personal training and Pilates sessions, spa treatments and other ancillary services, as well as purchases of retail or other items (collectively, “Ancillary Charges”). Payment for Ancillary Charges is due in full at the time of purchase, and Equinox has no obligation to provide you with any ancillary service or good until it has received such payment. Pricing for all Ancillary Charges is in Equinox’s discretion and may be prospectively modified by Equinox at any time, with or without notice to you.
2.3Non-Refundable: Your initiation fee, Membership Dues and Ancillary Charges are non-refundable and, unless otherwise expressly set forth in Section 3, you will not receive a refund of any initiation fee, Membership Dues or Ancillary Charges as a result of Membership cancellation or otherwise. From time to time Equinox may provide you with certain complimentary or promotional items, as further described in the Equinox Policies. Complimentary items have no cash value and you are not entitled to any refund or other amount for any complimentary item.
2.4Good Standing: You are required to keep your Membership in good standing by ensuring all Membership Dues and any Ancillary Charges are paid on time. You are responsible for promptly notifying Equinox of any changes to your credit card, checking account or other payment account information (“Payment Information”).
2.5Separate Buyer: If another individual (a “Buyer”) purchased your Membership on your behalf and agreed to have their Payment Information retained on-file with Equinox, you, not Buyer, are ultimately liable for all Membership Dues and Ancillary Charges payable hereunder and you agree to make all payments hereunder in the event Buyer fails to do so. This Agreement does not provide Buyer with any rights of Membership and Buyer may not access and use Clubs under your Membership.
2.6Past-Due Balances: Equinox reserves the right to take any lawful action in response to any past-due Membership Dues and/or Ancillary Charges, including, without limitation: (1) charging the Payment Information then on-file with Equinox; (2) cancelling your Membership or otherwise suspending your access to Clubs until all past-due amounts are paid; (3) charging you interest on past-due amounts; and/or (4) providing your information, including without limitation name and contact information, to a collections agency who will attempt to collect your past-due amounts on behalf of Equinox. You will be responsible for any collection and/or legal costs incurred by Equinox in collecting any past-due amounts associated with your Membership. Equinox may charge you a $20 fee for each credit card charge or check that is dishonored or rejected as invalid. Please note that cancellation of your Membership will not relieve you of your obligation to pay any past-due or outstanding amounts.
3.CANCELLATION RIGHTS
3.1INITIAL RIGHTS OF CANCELLATION: You may cancel this Agreement without any penalty or further obligation prior to midnight on the fifth (5th) business day of your Home Club after the date of this Agreement (excluding Sundays and holidays). In addition:
(1)If the total Membership Dues for your Initial Period, together with any initiation fee you paid, is between $1,500 and $2,000, you may cancel this Agreement within twenty (20) days after the date this Agreement is executed.
(2)If the total Membership Dues for your Initial Period, together with any initiation fee you paid, is between $2,001 and $2,500, you may cancel this Agreement within thirty (30) days after the date this Agreement is executed.
(3)If the total Membership Dues for your Initial Period, together with any initiation fee you paid, is between $2,501 or more, you may cancel this Agreement within forty-five (45) days after the date this Agreement is executed.
To exercise either of the cancellation rights under this Section 3.1, you must notify Equinox in accordance with Section 3.4 below. Notice should be accompanied by a copy of your Agreement, as well as any membership cards or fobs or other membership documentation given to you by Equinox. Within ten (10) days after Equinox receives notice of such cancellation, it will refund all amounts previously paid under this Agreement to the original method of payment, less an amount reflective of the services received or available for use by you, based upon a pro-rata calculation over the term of the Initial Period.
3.2ADDITIONAL RIGHTS OF CANCELLATION: You may also cancel your Membership and this Agreement, at any time during or after the Initial Period, for any of the following reasons:
(1)If you are no longer able to receive the services as a result of a condition that precludes you from physically using the facilities, as evidenced by a signed letter from your physician or other reasonable proof of your disability, which such evidence we may then verify;
(2)If you die, as evidenced by a death certificate or other reasonable confirmation of death provided by your estate;
(3)If you move more than twenty-five (25) miles from any comparable Club operated by Equinox, as evidenced by reasonable proof of your new residency; or
(4)If your Home Club eliminates or substantially reduces the scope of its facilities available to you upon execution of this Agreement (as such facilities described in Section 1.11 of this Agreement or in any advertisement relating to your Home Club or a written offer from Equinox), except that this cancellation right does not apply if your Home Club, after giving reasonable notice to you, temporarily takes facilities out of operation for reasonable repairs, modifications, substitutions or improvements or if your Home Club makes reasonable changes to the type or quantity of classes or equipment it offers.
You or your estate may exercise these rights to cancel your Membership and this Agreement by notifying Equinox in accordance with Section 3.4 below. Promptly after Equinox receives notice of such cancellation, you or your estate will be relieved of your obligation to pay for services other than those received or made available for use and Equinox will refund, using the Payment Information on-file, any prepaid unused Membership Dues and any prepaid unused Ancillary Charges, based upon a pro-rata calculation over the term of this Agreement. If this Agreement is cancelled under this Section 3.2 during the Initial Period, you will also receive a pro-rata portion of any initiation fee you paid. If you cancel under Section 3.2(3) because you have moved, Equinox reserves the right to charge you its then-current processing fee (not to exceed $100 if you cancel during the first six (6) months of your Initial Period or $50 if you cancel thereafter).
3.3Cancellation after Initial Period: If you do not wish to continue your Membership after Initial Period, you may cancel your Membership and this Agreement upon thirty (30) days’ prior written notice to Equinox. For clarity, your cancellation will go into effect thirty (30) days after Equinox receives your cancellation notice; however, if you provide cancellation notice more than thirty (30) days before the end of the Initial Period, your cancellation will not go into effect until the last day of the Initial Period. You must provide notice of cancellation in accordance with Section 3.4. Equinox reserves the right, in its discretion, to require you to pre-pay all Membership Dues through the date your cancellation goes into effect. Please note you will not receive a refund of any Ancillary Charges, including without limitation for any sessions which remain unused at the time your cancellation goes into effect.
3.4How to Cancel Your Membership: You may cancel your Membership and Agreement by any of the following methods:
(1)In-person at any Club in your Membership class. You will be required to complete a cancellation form and provide it to the Club General Manager or Assistant General Manager.
(2)By first-class United States mail to either 440 Portage Avenue. Palo Alto, CA94306, Palo Alto, CA 94306 or Equinox - Membership Administration, One Park Avenue, Mezz. Floor, New York, NY 10016. Your cancellation notice must include your full name, membership ID number, and contact information.
(3)By email to eqxcacancel@equinox.com. You must send the cancellation email from your email address on-file with Equinox. Your cancellation notice must include your full name, membership ID number and contact information.
(4)For cancellations after the Initial Period, you may call Equinox Membership Administration to cancel your Membership over the telephone. Visit http://www.equinox.com to find the current phone number for Membership Administration.
You are responsible for retaining (and presenting, if necessary) all records relating to your cancellation of Membership. In the event of a dispute as to whether and when notice of cancellation was received, Equinox’s records will control.
3.5Revocation of Membership: Equinox may, in its discretion, revoke or suspend your Membership, or limit your right to access certain Clubs or participate in certain Club offerings or ancillary services, upon notice to you provided at any time and for any reason, including without limitation failure to pay Membership Dues or Ancillary Charges or failure to comply with Equinox Policies (as defined in Section 5.1). In some cases, notice of revocation or suspension may be provided orally by a Club General Manager, Membership Administration or Equinox Regional or Corporate management. If Equinox revokes your Membership, it will promptly refund, using the Payment Information on-file with Equinox, any prepaid unused Membership Dues and any prepaid unused Ancillary Charges, less any outstanding amounts which may be owed to Equinox hereunder. Revocation or suspension of Membership will be without limitation to any other rights or remedies which Equinox may have at law or in equity, and Equinox reserves the right to, in its discretion, prohibit you from rejoining Equinox in the future.
4.YOUR HEALTH, RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY.
4.1Health Warranty: By signing this Agreement and using any Club, you are representing and warranting to Equinox that you are in good health and have no injury, impairment, disability, disease, ailment or condition that prevents you from safely engaging in exercise or that increases your risk of injury or adverse health consequences as a result of your using any Club or, as applicable, participating in certain group fitness classes or training. We encourage you to see your doctor on a regular basis and seek their advice prior to engaging in any new or modified fitness or nutrition regimen or if you have any questions or concerns regarding your health and fitness regimen or the diagnosis of any medical conditions.
4.2Responsibility to Notify: You are responsible for notifying your personal trainer, Pilates or group fitness instructor, or spa therapist before any session or class of any limitation to your ability to participate, including without limitation if you are starting a new or modified fitness regimen or if have any pre-existing or current injuries, impairments, disabilities, diseases, ailments or conditions that may prevent or effect your participation. You are also responsible for immediately informing your trainer, instructor or therapist if you experience any pain or discomfort and/or if you cannot or do not wish to continue your session or class. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS OR DISCOMFORT WHEN ENGAGING IN ANY SESSION, CLASS, ACTIVITY OR EXERCISE OR OTHERWISE USING ANY CLUB, STOP AND CONSULT YOUR DOCTOR OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY. You hereby consent to receive any medical treatment which may be deemed advisable by Equinox and/or any emergency professionals in the event of injury, accident, illness and/or other incapacitation while at any Club.
4.3Covenant of Due Care: By signing this Agreement and using any Club, you are also acknowledging that the recreational services in which activities and exercises you may engage in at the Club, including without limitation when using equipment or machines, participating in any session or class or otherwise engaging in strength, flexibility, aerobic, cardio, meditation, regeneration or other exercises, may be physically strenuous and potentially hazardous activities and involve risks and danger inherent in engaging in such activities and exercises. Specific risks vary from one activity to another, and range from minor injuries to major injuries, including death. In consideration of the Membership privileges provided to you hereunder and on behalf of your heirs, beneficiaries, distributees, legal representatives, successors, assigns and guests, you understand and hereby voluntarily and knowingly acknowledge and assume all risks associated with your failure to use reasonable care when using any Club or equipment and/or your use of any Club or equipment other than for its intended purpose, and you hereby agree to indemnify, defend, and hold harmless Equinox, its parents, subsidiaries and other affiliates, and its and their respective officers, directors, employees, contractors, agents, representatives, successors and assigns (collectively “Equinox Parties”) from any and all liability, damages, losses, suits, demands, causes of action or other claims of any nature whatsoever, including without limitation any property damage, personal injury, injury to others or death, to the extent any of the foregoing arise out of or relate in any way to your negligence, intentional acts and/or failure to exercise reasonable care when accessing and using the Club and equipment. Further, you acknowledge that Equinox does not manufacture the fitness and other equipment and machines provided in its Clubs and agree that Equinox is providing recreational services and may not be held liable for defective products.
4.4Waiver and Release: IN CONSIDERATION OF THE MEMBERSHIP PRIVILEGES PROVIDED TO YOU HEREUNDER, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DISTRIBUTEES, LEGAL REPRESENTATIVES, SUCCESSORS, ASSIGNS AND GUESTS, YOU HEREBY VOLUNTARILY AND KNOWINGLY, FOREVER WAIVE, RELEASE, COVENANT NOT TO SUE, DISCHARGE AND HOLD HARMLESS THE EQUINOX PARTIES (AS DEFINED ABOVE) FROM, AND SUCH EQUINOX PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR, ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY, INCLUDING WITHOUT LIMITATION FOR ANY PROPERTY LOSS OR DAMAGE, LOSS OF EARNINGS OR EARNING CAPACITY, PERSONAL INJURY, ILLNESS OR IMPAIRMENT, PHYSICAL PAIN, MENTAL ANGUISH, PARALYSIS, HEART ATTACK OR DEATH, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, YOUR MEMBERSHIP, THE USE OR NON-USE OF ANY SERVICE, PRODUCT OR EQUIPMENT PROVIDED OR OFFERED HEREUNDER, WHETHER RELATED TO EXERCISE OR NOT AND REGARDLESS OF LEGAL THEORY OR WHETHER ARISING IN OR BY STATUTE, TORT, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, INCLUDING THOSE LOSSES OR DAMAGES RESULTING FROM OR CAUSED BY, IN WHOLE OR IN PART, THE NEGLIGENCE OF ANY EQUINOX PARTY AND REGARDLESS OF AND WHETHER SUCH LOSSES OR DAMAGES ARE KNOWN OR UNKNOWN TO YOU OR ANY OTHER PERSON; PROVIDED THAT THE FOREGOING RELEASE AND WAIVER OF LIABILITY SHALL NOT APPLY TO ANY LOSSES OR DAMAGES CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF ANY EQUINOX PARTY TO THE EXTENT PROHIBITED BY LAW. NONETHELESS, THIS RELEASE IS INTENDED BY BOTH PARTIES TO BE AS BROAD IN EFFECT AS ALLOWED BY LAW AND SHALL COVER OR INCLUDE ANY CLAIM OR DEMAND YOU HAVE, HAD OR EVER WILL HAVE.
4.5Warning Regarding Steroids: Use of steroids to increase strength or growth can cause serious health problems. Steroids can keep teenagers from growing to their full height; they can also cause heart disease, stroke, and damaged liver function. Men and women using steroids may develop fertility problems, personality changes, and acne. Men can also experience premature balding and development of breast tissue. These health hazards are in addition to the civil and criminal penalties for unauthorized sale, use, or exchange of anabolic steroids.
5.MEMBERSHIP POLICIES
5.1Equinox Policies: You agree to abide by all Membership and Club rules, regulations, policies, procedures and schedules of Equinox, including without limitation those which may be posted at a Club, on Equinox’s website and/or mobile app or issued orally by a Club General Manager, Assistant General Manager or by Regional or Corporate management (“Equinox Policies”). A current copy of key Equinox Policies is attached as Annex A to this Agreement and is also available to you at any time in your digital account on http://www.equinox.com. Equinox may, in its discretion, prospectively amend or supplement the Equinox Policies at any time, with or without prior notice to you. Contact Club management or Membership Administration for questions regarding Equinox Policies.
5.2Cell Phone and Camera Use: Using cell phones, cameras or any other recording devices in Equinox locker rooms and other private spaces such as spa treatment rooms and pool areas is strictly prohibited. See Annex A to this Agreement for additional Equinox Policies regarding use of cell phones, cameras and other recording devices while at Clubs.
5.3Ancillary Services: Your purchase and use of any ancillary services and/or goods such as personal training, Pilates and spa sessions is subject to the Equinox Policies, including without limitation policies for booking, cancellation and expiration dates. See Annex A to this Agreement for additional Equinox Policies for ancillary services.
5.4Your Information: As a member, Equinox will collect, use and disclose your personal information, as further described in the Equinox Policies. Your information may be used for promotional and marketing purposes and may be disclosed to and used by Equinox’s affiliates and/or certain third parties. See Annex A to this Agreement for additional information on Equinox’s collection, use and disclosure of information.
5.5Third-Party Services: Equinox may make goods or services of certain third parties, including without limitation juice bar and café operators and cryotherapy or chiropractic providers (“Third-Party Services”) available to you. Third-Party Services are provided for your convenience and may be discontinued at any time, with or without notice to you. Third-Party Services are not controlled by Equinox and should not be viewed as any endorsement by, or affiliation with, Equinox. You may be required to acknowledge or sign additional third party terms and conditions in order to use Third-Party Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EQUINOX MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SERVICES AND HEREBY DISCLAIMS ALL LIABILITY FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF OR IN CONNECTION WITH SUCH THIRD-PARTY SERVICES, THE ASSOCIATED PROVIDERS, AND YOUR USE THEREOF.
6.NOTICES
Your notice of cancellation must be provided in accordance with Section 3.4 above. Equinox has the right to communicate with you regarding your Membership, this Agreement or otherwise by any lawful method, including without limitation by mail, courier, telephone, email, and text message, and may communicate with you using any contact information you have provided to Equinox. Equinox may also provide general member-facing or Club-facing communications or notices (if provided), including without limitation changes to Equinox Policies and notices regarding inclement weather or change to operating hours, within Clubs, on the Equinox website and/or Equinox mobile app. Notices will be deemed given by Equinox on the date deposited in the mail or given to a courier, the date a phone call is made or an email or text is sent, or the date posted in Club, online or in-app. You are responsible for providing accurate, current contact information and must promptly notify Equinox if any of your contact information changes. Equinox will not be responsible for your failure to receive any communication or notice as a result of your failure to provide accurate and current contact information or as a result of any e-mail filtering by your ISP or email provider, insufficient space in your email account or any errors or losses of any postal or delivery service. You hereby consent and give Equinox permission to use (or have a third-party provider use on Equinox’s behalf) an automated telephone dialing system and/or artificial or prerecorded voice (where applicable) to call or text you, including on or to any telephone number you provide to Equinox, including your mobile phone.
7.ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
7.1Informal Dispute Resolution: Our goal is to do our best to ensure that every experience you have with Equinox exceeds your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us by visiting http://www.equinox.com/contactus. When contacting us, we ask that you include your name, address, phone number and email address, a description of your problem or concern and any specific relief you seek.
7.2Arbitration: You agree to submit any and all Disputes (as defined in Section 7.4) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which will govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration will be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), http://www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), http://www.adr.org. If you initiate arbitration, you may choose between these two arbitration forums; if Equinox initiates arbitration, it will have the choice as between these two arbitration forums.
YOU AND EQUINOX AGREE THAT, EXCEPT AS PROVIDED IN SECTION 7.4, ANY AND ALL DISPUTES WHICH ARISE AFTER YOU ENTER INTO THIS AGREEMENT WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
7.3Class Action Waiver: You agree that the arbitration of any Dispute will be conducted on an individual, not a class-wide, basis, and that no arbitration proceeding may be consolidated with any other arbitration or other legal proceeding involving Equinox or any other person. You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Equinox, and that the arbitrator of any Dispute between you and Equinox may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action). If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable and the Dispute will be decided by a court of competent jurisdiction. Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
7.4Definition of “Dispute”: Subject to the following exclusions, “Dispute” means any dispute, claim, or controversy between you and Equinox regarding any aspect of your relationship with Equinox, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes without limitation the validity, enforceability or scope of the Agreement (except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver). However, “Dispute” will not include (1) personal injury claims or claims for lost, stolen, or damaged property; (2) claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable; and (3) any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.
7.5Arbitration Procedures and Location: Either you or Equinox may initiate arbitration proceedings. Arbitration will be conducted before a single arbitrator. If you or Equinox initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:
(1)For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at http://www.jamsadr.com or by calling 1-800-352-5267.
(2)Which particular rules apply in AAA arbitration will depend on how much money is at issue. For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at http://www.adr.org or by calling 1-800-778-7879.
If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, Equinox will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules. You and Equinox both agree to bring the arbitration in either the county in which your Home Club is located or in New York County, New York. As set forth in Section 8.5 below, the arbitrator will apply California law.
8.GENERAL TERMS
8.1Entire Agreement: This Agreement, together with the Equinox Policies, constitutes the entire and exclusive agreement between you and Equinox relating to your Membership and supersedes any prior or contemporaneous representations, inducements, promises, understandings or agreements, whether oral, written or otherwise.
8.2Modifications: No provision of this Agreement, or the enforcement thereof, may be modified or waived, except as may be stated in a writing signed by Equinox Club or corporate management. Notwithstanding the foregoing or anything to the contrary herein, Equinox may, in its discretion, modify this Agreement at any time (subject to Section 2.1), upon at least thirty (30) days’ notice to you.
8.3Interpretation: If any provision or portion of this Agreement, or the application thereof to any person, party or circumstances, is be deemed invalid or unenforceable by a court or arbitrator of competent jurisdiction, (1) that invalidity or unenforceability will not affect the remainder of this Agreement and (2) Equinox may, in its discretion, modify such provision or portion in order to render it valid and enforceable.
8.4Assignment: Equinox may assign or transfer this Agreement and your Membership, whether by operation of law or otherwise, to an affiliate of Equinox or to a third party in the event of any merger, acquisition, sale of assets, change of control or other corporate transaction between Equinox (or one of its affiliates) and such third party (or one of its affiliates), in each case without notice to you, and you hereby consent to any such assignment or transfer. You acknowledge that this Agreement is personal to you and that you have no rights to transfer or assign this Agreement to any other individual or entity.
8.5Governing Law: This Agreement, your Membership, and any claims, disputes and matters arising hereunder, will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law principles. Except for Disputes that you or Equinox submit to binding arbitration pursuant to the Arbitration Agreement, all claims, disputes and matters arising hereunder will be submitted exclusively to the jurisdiction of the federal and state courts of competent jurisdiction located in either the county in which your Home Club is located or in New York County, New York, and you and Equinox each hereby irrevocably consent to the jurisdiction of such courts and waive all objections thereto.