Terms of Service

Last updated: July 29, 2024

IMPORTANT NOTICE: PLEASE READ THESE TERMS OF USE CAREFULLY—THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, AND INCLUDE WAIVERS OF RIGHTS AND LIMITATIONS OF LIABILITY. THEY ALSO REQUIRE DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AND TO WAIVE ANY RIGHT TO A JURY TRIAL, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ANY OTHER COURT PROCEEDING OF ANY KIND, SUBJECT TO LIMITED EXCEPTIONS. UNLESS YOU OPT OUT IN ACCORDANCE WITH THE OPT-OUT PROCEDURES DESCRIBED BELOW, YOU WILL BE BOUND BY THESE TERMS. THE FULL TERMS OF THE ARBITRATION AGREEMENT ARE BELOW.

I.     INTRODUCTION

Welcome to EGYM Wellpass!

These Terms outline the rules and guidelines governing your use and access of our Services and define the relationship between you (the user) and us (the service provider). For example, these Terms explain: (1) what you can expect from us; (2) what we expect from you; (3) who can do what with Your Content and on the Services; and (4) how we will resolve disputes between us.

By registering with us and otherwise using the Services, you are entering into a binding contract with Company that includes these Terms. Other Terms may govern certain features or content on the Service, such as free trial and reward programs, subscription programs, offers, sweepstakes and contests. By participating in any activity on the Services governed by Other Terms, you agree that you will be subject to those Other Terms in addition to these Terms.

For information on how we collect, use and protect personal data, please refer to our Privacy Policy. By using our Services, you also agree to our Privacy Policy.

In this document, capitalized words not otherwise defined have the meanings given to them in the Certain Definitions section or where otherwise defined. The Certain Definitions section also includes explanations for certain lowercase words.

II.     CERTAIN DEFINITIONS

“App Store” means the third party from whom you received the Mobile Application license, e.g., the Apple or Google app stores.

“App Store Sourced Application” means a Mobile Application accessed through or downloaded from the Apple App Store.

“Company,” “we,” “our,” and “us” means and refers to EGYM Inc..

“Company Parties” means Company and Company’s predecessors in interest, successors, and assigns, as well as its respective past, present, and future parents, subsidiaries and affiliates.

“Content” means graphics, pictures, images, artwork, videos, animations, audio, sounds, music, audio-visual effects, text, titles, names, themes, dialogue, characters, stories, concepts, objects, virtual items, patterns, textures, designs, models, concepts, interactive features, code, scripts, software, metadata, digital works, suggestions, feedback, messages, reviews, files, documents, and all other content.

“Dispute” means any dispute, claim, or controversy between you and Company Parties, including but not limited to disputes, claims, or controversies related to or arising from the Services, or these Terms or Other Terms, including, without limitation, those relating to the formation, breach, termination, enforcement, interpretation, validity, scope, or applicability of the Terms, Other Terms, and the Arbitration Agreement included herein.

“Google Play Sourced Application” means a Mobile Application accessed through or downloaded from the Google Play Store.

“IP” means any intellectual property or intellectual property rights, including any copyright, trademark, patent, trade secret, or other proprietary interests, whether registered or unregistered, under the Laws of any jurisdiction.

“Laws” means all laws, rules, codes, statutes, ordinances, regulations, treaties, directives, and legal or regulatory requirements or guidance and agreements that apply to the Service or Content.

“Licensed Parties” means Company Parties and their respective partners, representatives, agents and licensees.

“Mobile Application” or “App” means a software application designed to run on mobile devices, such as smartphones and tablets, that provides access to our Services.

“Mobile Services” refer to services or functionality we provide, if any, that are accessible via mobile devices, including apps (if any), mobile-optimized versions of our website, push notifications, location-based services, and SMS, MMS, iMessage and other mobile-based communications.

“Network Partners” means the sports and wellness facilities participating in the Wellpass Program in the United States.

“Notice of Dispute” or “Notice” means a notice of Dispute from you to any Company Party.

“Notice Address” means EGYM Inc., 2530 Frontier Avenue, Boulder, CO 80301, Attn: Legal Department, to which a Notice of Dispute from you to Company Parties must be emailed.

“Other Terms” means individually or collectively, as applicable, the Privacy Policy, or any other agreements, addenda, or terms entered into by you and Company or any other Licensed Party that are governed by, or otherwise incorporate by reference, these Terms.

“Our Content” means the Services, and any IP or Content owned or provided by or on behalf of Company Parties, including any software, technology, tools, designs, templates or tools provided to users.

“Persona” means, collectively, name, brand, likeness, image, likeness, social-media handle(s), avatars, signature, voice, performance, profile and biographical information.

“Products” means products made available for purchase through the Services.

“Services” means the Wellpass Program and the Mobile Applications, websites, and any other programming, tools, applications, technical products, features, software, games, experiences, or documentation provided by Company that allow you to participate in the Wellpass Program.

“Review” means a review about us or our products or services.

“Membership” means a recurring plan that grants you access to the Services (including the Wellpass Program) for a defined period until terminated as set forth herein.

“Terms” means these Terms of Service, as updated from time to time.

“Wellpass Program” means the subscription program offered by the Company within which users can use the facilities of Network Partners or take online fitness courses from the App.

“You,” “your,” or “user” means the person entering into these Terms with Company.

“Your Content” means any Content you create, submit, store, upload, broadcast, provide or share using the Services, or otherwise provide to Company or any other Licensed Party, including any Persona (to the extent incorporated therein), but excludes Our Content or Content provided by other users.

III.    YOUR RELATIONSHIP WITH US

A.          What you can expect from us

Services. We may offer a range of Services, your use of which is governed by these Terms.

Update, develop, and enhance Services. We may develop new technology or features that improve or modify the Services. To that end, we may add or remove certain features, functionalities, or Services. If we make a significant change that impacts your use of the Services, or if we stop offering a service altogether, we will endeavor to notify you unless the situation is urgent (for example, to prevent abuse, address security issues, or respond to legal requirements).

Update, clarify, or amend these Terms. If we make a change to these Terms or any Other Terms that materially affects your rights, we will endeavor to give you advance notice and an opportunity to review the change unless the situation is urgent.

If you don’t agree, stop using the Services. If you don’t agree with any Terms, including any updated or amended terms, you should terminate your account and stop using the Services.

B.         What we expect from you

Follow all applicable rules. The permission we give you to use the Services lasts as long as you comply with: (1) these Terms; and (2) any Other Terms—which will be controlling if there is any conflict with these Terms—that may apply to specific uses of the Services. We will let you know when Other Terms apply to your use of the Services.

Provide true information. We may ask you for certain information from time to time, including to open an account with us, and when the law says we have to. You agree to give us true information only, and you understand that lying or not providing certain information may mean that you won’t be able to access or use certain Services.

Give feedback or suggest improvements, if you want. If you give us any comments, feedback, or suggestions, you agree that Licensed Parties may use those submissions without notice, payment, or any other obligation to you.

Pay any fees that you owe. You agree to pay the applicable membership price, fees, and any taxes that you may owe as determined by the Company, your employer, or third party service providers and under any applicable law. All payments and fees are final and non-refundable.

Payment for the Services is divided into an employer's share and an employee's share. Your payment may be made in different ways (including direct deduction from your salary or direct payment to the Company through a payment method you provided (e.g. credit card or mobile pay)), depending on the payment process chosen by your employer. If using direct payment, your payment of the employee's share is made by the payment method chosen by you and is collected on the 1st of the respective month or on the first working day of the month. Payment may also be made by direct deduction from your monthly salary, if agreed upon with your employer.

If a payment cannot be successfully processed because the respective payment method has expired, you do not have sufficient credit, or the payment fails for any other reason, and you do not cancel your Membership in due time, your Membership may be deactivated until we have successfully charged a valid payment method and you have re-subscribed. You can update your payment methods at any time in our login area at app.egym-wellpass.com/nav/payment-details.

We may adjust the Membership costs at our reasonable discretion, which may include increases or decreases. Any cost adjustment will only be made for employees of Wellpass corporate customers if such adjustment is covered by the corresponding contract between Wellpass and the employer. All price changes apply at the earliest at 60 days after notification to you. You will always have the right to terminate your Membership in accordance with Section V.C. below; if the Membership is not terminated by you before the price adjustment comes into effect, the price adjustment is deemed to have been accepted.

Make certain promises, also known as representations and warranties. By using the Services, you represent and warrant that:

• you have the rights and ability to enter into these Terms and any Other Terms;

• your use of the Services and performance under any Other Terms won’t violate any third party’s rights or applicable Laws;

• your use of the Services will be for your personal enjoyment only or for use as outlined in any Other Terms, but not for any commercial purposes;

• you exclusively own the rights in Your Content or, if not, you have obtained all rights necessary to grant Company and the other Licensed Parties the rights granted hereunder (including all sublicense rights);

• the use of Your Content as set forth herein or in any Other Terms will not violate these Terms, Other Terms, or any Laws, or any rights (including any IP, privacy rights, or rights of publicity) of any third party, or cause Company or any other Licensed Parties to incur any additional fees; and

• If Your Content uses any third party’s IP (like logos, designs, brand names), such use is expressly permitted by the applicable rights holder or otherwise is permitted by fair use or other applicable Laws.

  Acknowledge Health and Safety Concerns and Risks. You hereby acknowledge and agree that the Services include features that promote physical exercise, sport, and other activities that may cause injury. Any recommended workout plans and exercises, even if they are tailored to individual users, should not be misconstrued as medical advice, diagnoses or treatment. You should consult your physician or other health care practitioner before engaging in any exercise program or other physical activity, and you should immediately discontinue exercise in cases where it causes pain or severe discomfort.

  You certify that: you are in good health and sufficient physical condition to properly participate in fitness activities and to use the Services; that you are knowledgeable about the proper use of any equipment that you will use and the rules of any activities that you will participate in; and that you will carefully read the operating instructions for any equipment prior to use and will operate such equipment in strict accordance with instructions.

  You understand that there is an inherent risk of injury when choosing to participate in any physical exercise, sport or wellness activities. You acknowledge that your participation is voluntary in all respects, and you hereby assume all risks of injury, illness, death, loss, property damage and/or any other personal or financial injury to you or to others (collectively, “Injury”) that may result from your use of the Services, however caused, even if caused in whole or in part by the action, inaction or negligence of Company, its parent, subsidiaries, or affiliates (the “Released Parties”), to the fullest extent allowed by law. On behalf of yourself and anyone entitled to act on your behalf (including your heirs, estate, insurers, successors and assigns), you hereby agree to forever release and discharge the Released Parties from any and all liabilities, claims, demands, or causes of action that you may hereafter have for any Injury in connection with the Services, however caused, even if caused in whole or in part by the action, inaction or negligence of the Released Parties, to the fullest extent allowed by law.

IV.     THE WELLPASS PROGRAM

A.           Use and Facilities

Membership in the Wellpass Program gives you access to use the Network Partners and access to the App. The prerequisite for membership in the Wellpass Program is the participation of your employer in the Wellpass Program. Your employer defines the group of people eligible to participate. We have the right to turn down any potential members for the Wellpass Program.

You will have the ability to select the training facilities from the Network Partners and generally receive the service that corresponds to a basic membership of the respective Network Partner. You will need to use the App to verify membership when checking in with the Network Partners. Details, availability, restrictions, and special extensions of the usage options are listed on the respective Network Partner page available at www.egym-wellpass.com/locations. Additional services offered on-site by the respective Network Partner (e.g., food and beverages, massages, and physical therapy services) are not included in the Wellpass Program.

Access to the training facilities of the Network Partners is provided by one of the following options, which depend on the agreement between your employer and the Network Partner: (a) check-in via the App; or (b) check-in using a studio access card (RFID), provided that the studio administration from the Network Partner is connected to Company via a separate interface.

You will be able to register for classes in advance for which you do not have to pay an additional fee via the App. You will also be able to cancel such registration free of charge before the cancellation deadline specified in the App. To attend any such classes, mandatory on-site check-in at the Network Partner facility is required (e.g. via QR code scan).

Please be aware that, as the Network Partner is compensated for classes booked but not attended and/or canceled in an untimely manner, you must reimburse Company for this expense. You are obligated to pay Company an amount of $10 for each class for which you register but do not attend and not canceled in a timely manner. This amount may be reduced to $5 in the event that the booking is canceled but in an untimely manner. However, in order to avoid this reimbursement, you are permitted to show that Company was not charged with any or only lower expenses. The foregoing reimbursement amounts will be debited via the payment details provided by you.

Class bookings made via the App are personal and non-transferable. The member must identify himself/herself upon request and access to the Network Partner facility may be denied in the event of misuse.

V.     USING THE SERVICES

A.         Age Requirements

To use the Services, you have to be at least 18 years old. If you are not legally considered an adult where you live, please talk to your parent or legal guardian and ask them for help; only they are allowed to agree to these Terms for you. If you’re a parent or legal guardian allowing a minor to use the Services, then you agree these Terms apply to you and that you’re responsible for their and your activity on the Services. You also are responsible for any transactions undertaken by you or the minor. We have the right to terminate the use of these Services by a minor without further contact with the person concerned if the authorization of the parent or legal guardian is not properly granted.

B.         Your Account

You will need an account with us to access and use certain parts of the Services. Only you are responsible for what happens on your account and for keeping your passwords and other account information private and safe. You are only allowed to have one account with us. If you think your account was hacked, stolen, or used without your permission, please email us at privacy@egym.com.

Your employer will provide you with a link from which you can use to register yourself on your employer's Wellpass Program registration page. For the account, you will need to create a new log-in identification or use an existing EGYM ID and you will need to truthfully include your first and last name, your date of birth, your email address, and your residential address. The use of the same e-mail address by several users will be prohibited.

C.         Commencement/Termination of Your Membership

You can register up to the deadline set by your employer (e.g., by the 20th of each calendar month). The deadline applicable to your company is shown on your company's registration page. Following successful verification by your employer, your Membership agreement will commence at the earliest from the following calendar month or from the start date selected by you in the registration process and will run until terminated as set forth herein.

You may terminate your Membership in writing by the 15th of the current month for the following calendar month (e.g. via the following form https://egym-wellpass.com/kuendigung/). Note that termination of your existing employment relationship does not necessarily lead to automatic termination of your Membership; your Membership must be terminated by the now prior employer or by you in writing. Further, note that your Membership ends automatically as soon as your employer leaves the Wellpass network. If your employer's HR system is connected to Wellpass, notice of termination of your Membership will be automatic when you leave your employer or if your eligibility expires in accordance with the eligibility rules set by your employer. In either case, you will receive a notice of termination of Membership in writing.

D.         Mobile Application.

License. Subject to your compliance with these Terms, Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mobile Application on a mobile device that you own or control and to run such copy of the Mobile Application solely to access the Mobile Services for your own personal non-commercial purposes. Furthermore, (a) with respect to any App Store Sourced Application, you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service; and (b) with respect to any Google Play Sourced Application, you will only use the Google Play Sourced Application: (i) on a product that runs Android OS (Google’s proprietary operating system for Android devices); and (ii) as permitted by the “Usage Rules” set forth in the Google Play Store Terms of Service.

The necessary technical requirements, e.g. required storage space on your mobile device and required software version, can be found in the description of the App available in the respective App Store. You are responsible for the maintenance of the end devices and for installing and updating the App on the devices, insofar as this is necessary for accessing and using the App. A further prerequisite for installation and use on your mobile device is a current and valid user account for the respective App Store and a mobile internet connection. The installation and use of the App requires regular data transmission from your mobile device. The scope and frequency of data transmission depend, among other things, on the type and scope of use of the App by you. The connection costs incurred for data transmission shall be borne by the user in accordance with the existing contract between you and your Internet access provider.

App Stores. You acknowledge and agree that the availability of the Mobile Application and the Mobile Services is dependent on the App Store. You acknowledge that these Terms are between you and Company and not with the App Store. As between Company and the App Store, Company, not the App Store, is solely responsible for the Mobile Application and the Mobile Services, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g. product liability, legal compliance, or IP infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Application and the Mobile Services. You agree to comply with, and your license to use the Mobile Application and the Mobile Services is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Application and the Mobile Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce them. Any updates to the App will be displayed to the user in the App or via the functionalities of the respective App Store.

Accessing and Downloading the Mobile Application from the Apple App Store. The following applies to any Mobile Application accessed through or downloaded from the Apple App Store:

• You acknowledge and agree that: (i) these Terms are concluded between you and Company only, and not Apple; and (ii) as between Company and you, Company not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Apple App Store terms of service.

• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

• In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if applicable) for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.

• You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

• You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s IP rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such IP infringement claim to the extent required by these Terms.

• You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.

Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

Accessing and Downloading the Mobile Application from the Google Play Store. The following applies to any Mobile Application accessed through or downloaded from the Google Play Store (the “Android Version”):

• You acknowledge that these Terms are between you and EGYM only, and not with Google, Inc. (“Google”).

• Your use of the Android Version must comply with Google’s then-current Google Play Terms of Service.

• Google is only a provider of the Google Play Store where you obtained the Android Version. We, and not Google, are solely responsible for our Android Version and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android Version or these Terms.

• You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android Version.

E.         Mobile Services

Data Usage and Charges. To the extent you access the Services through a Mobile Device, your mobile carrier’s standard charges, data rates and other fees may apply.

Compatibility. Though our Services are designed to be accessible on Mobile Devices, we do not guarantee full functionality or optimal user experience on all devices. Users are responsible for ensuring their Mobile Device are compatible with our Services.

Security. Accessing the Services via a Mobile Device may introduce additional security risks. Users are responsible for maintaining the security of their Mobile Devices, including keeping software up to date and protecting against unauthorized access.

F.         Notifications and Messages

Notifications and Messages. By opting in to receive communications via the Services (which may include our Mobile Application or specific features that require communication), you agree to receive messages via email or via push notifications for both transactional and marketing purposes. You can opt-out of receiving these messages at any time by contacting us as outlined in our Privacy Policy.

G.         Using Services Responsibly

You are responsible for your interactions with other users on the Services. We reserve the right to monitor interactions between users, but we are not obligated to do so, and cannot be held liable for your interactions with other users, or for any user’s actions or inactions. If you have a dispute with one or more users, you release Company and any other Licensed Parties from claims, and damages of every kind, arising out of or in any way connected with such disputes. In entering into this release, you waive any protections that would otherwise limit the coverage of this release.

The Services are controlled and operated from the United States, and we do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations.

We have to set some ground rules for the Services so that everyone can enjoy them and we can protect peoples’ rights. Therefore, you agree that:

You WILL:

•       treat Company and any other Licensed Parties and all users of the Services with respect; and

•       comply with all applicable Laws.

You may not do any of the following, unless laws prohibit these restrictions or you have our advance written permission to do so:

• a.    share, download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;

• b.    duplicate, change, break, decompile, reverse engineer, disassemble or decode the Services or any part thereof (including any underlying idea or algorithm), or attempt to do any of the same;

• c.    share, upload, distribute, transmit, display, perform, reproduce, duplicate or publish files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network, or the Services;

• d.    use, reproduce or remove any proprietary notations displayed on or through the Services (e.g., trademark or copyright notices);

• e.    use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;

• f.    exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;

• g.    use the Services or any part thereof in any manner that could disable, overburden, damage, disrupt or impair the Services or any part thereof or interfere with any other party’s use of the Services or any part thereof, or use any device, software or routine that causes the same;

• h.    attempt to gain unauthorized access to, interfere with, overwhelm, burden, damage, disrupt, impair damage or disrupt or negatively impact the Services, Accounts registered to other users, or the computer systems or networks connected to the Services or any part thereof;

• i.    use or attempt to use another person’s Account or device without their permission;

• j.    circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services or any part thereof;

• k.    use any robot, mods, hacks, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services or any part thereof to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same (in no event shall any robots.txt file or other such protocol be construed as granting written permission to engage in the conduct prohibited by this paragraph);

• l.    introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;

• m.    use the Services for or post Content that is harmful, harassing, unethical, fraudulent, obscene, vulgar, abusive, profane, harmful, disruptive or otherwise objectionable or offensive purposes, violates other contractual or fiduciary rights, duties, or agreements;

• n.    share, upload, distribute, transmit, display, perform, reproduce, duplicate or publish deceptive, unfair or misleading statements, or unauthorized promotion (including, without limitation, chain letters or pyramid schemes, statements or material that constitutes junk mail, spam, or unauthorized advertising or promotional materials);

• o.    impersonate any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of any Company Parties, or misrepresent your affiliation with any entity and/or any Company Parties;

• p.    violate any applicable “Laws” (i.e. any and all laws, rules, codes, statutes, ordinances, regulations, treaties, directives, and legal or regulatory requirements or guidance and agreements that apply to the Services or Content) in connection with your use of the Services;

• q.    use the Services in any way not expressly permitted by these Terms or Other Terms; or

• r.    Encourage or enable any other person or entity to do any of the foregoing.

VI.    CONTENT ON THE SERVICES

A.         Our Content

The Services include Our Content, which belongs to the Company Parties (as applicable). As between you and Company Parties, the applicable Company Party shall be and remain the sole owner of Our Content. We give you permission to use Our Content solely to use the Services, subject to these Terms and any Other Terms, but we (or other Licensed Parties, as applicable) retain all IP in Our Content. You agree not to do anything to violate, infringe upon, or misappropriate our IP/Our Content.

B.         Your Content

You own the IP in Your Content, and you can share Your Content with the world. However, you grant Company and all other Licensed Parties, including our users / users of the Service, permission to use Your Content as set forth in the license below.

Unless otherwise agreed by Company in writing, the scope of the license you grant to Your Content hereunder is:

• worldwide, meaning it’s valid all over the world;

• non-exclusive, meaning you can give the same license to others;

• royalty-free, meaning there are no royalties owed to you for this license (and, for the sake of clarity, Company Parties may, but have no obligation to, provide or offer you compensation for, or opportunities for you to monetize, Your Content); and

• irrevocable, meaning you can’t take it back.

Company and all other Licensed Parties may (but are not obligated to):

• copy, use, transmit, broadcast, reproduce, publicly perform, and publicly display Your Content, including to save on the Service and its systems and show or make publicly available to other users;

• modify and prepare derivative works based upon Your Content, including to edit them or make new versions of them;

• otherwise use, distribute, commercialize, and exploit Your Content; and

• sublicense, meaning grant any or all of these rights to other Company users / users of the Services or other third parties.

Company and all other Licensed Parties may exercise these rights for any lawful purpose including, without limitation, the purposes of:

• operating and improving the Services, including to provide the Services to you and others, allow the Services to work as intended, and create new features and functionalities; and

• promoting and marketing Company and all other Licensed Parties, the Services, their businesses, Our Content and Your Content.

The license above continues for as long as Your Content is protected by IP Laws.

C.         Other People’s Content

The Services may give you access to Content that belongs to others. You can use Content that belongs to others in and as permitted by the Services, these Terms and any Other Terms, but you can’t use it in any other way without the applicable rights’ holder’s permission.

D.         Infringing Content

If you believe that any user-generated Content or other material made available through the Services violates your copyright, please submit a notification in accordance with the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, to Company’s DMCA Agent:

Email: legal@egym.com

EGYM Legal Department

EGYM Inc.

2530 Frontier Avenue

Boulder, CO 80301

Notices related to trademarks, right of publicity, or IP matters may be sent to the same recipient.

If any of Your Content is taken down after we receive a DMCA notice, you can send a counter-notification as laid out in section 512(g) of the DMCA, and we may re-post Your Content in question.

We, in our discretion, when it’s appropriate, will disable or terminate the accounts of users who repeatedly infringe IP.

E.         Reviews

We love when Your Content is feedback about experiences with us and/or our Services, as customer feedback helps us to improve our offerings and connect with our community. By submitting Your Content that contains a Review, you agree that:

• The Review complies with these Terms

• You are actually a user of the product or service being reviewed

• The Review reflects your honest opinions, findings, beliefs, or actual experience using the product(s)

• You will disclose in the Review (in easy-to-understand language and in an unavoidable place) if you received any Services mentioned in your Review for free, or if you have any other connection to Company Parties that might materially affect the weight or credibility of your Review.

We reserve the right not to post or delete any Review that:

• We reasonably believe is fake or is:

  • unlawful
  • unrelated to the products or services offered by us
  • clearly false or misleading
  • harassing or abusive, inappropriate with respect to race, gender, sexuality, ethnicity or another intrinsic characteristic
  • defamatory, libelous, or slanderous
  • violative of the Terms or applicable Laws

• Contains:

  • unlawful material
  • personal information
  • trade secrets, or privileged information
  • confidential commercial or financial information
  • personnel and medical files or similar information
  • records or information compiled for law enforcement purposes

We try to check and publish Reviews after successful submission to us. If a Review is not published after you submitted it to us, it may have violated the Terms.

Please be aware that Reviews on the Services may be viewable by others. We cannot guarantee that you will have any recourse through our Services or Company generally to edit or delete any Review.

VII.    ISSUES, CLAIMS, RISKS, AND DISPUTES

A.          Warranty Disclaimer

We work continuously to improve the Services and meet your needs. However, for legal reasons, we offer the Services without warranties unless specifically stated in Other Terms. The law says we need to explain this with specific language in capital letters. Here is that explanation:

WE PROVIDE THE SERVICES AS IS AND AS AVAILABLE WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR GOAL, AND NON-INFRINGEMENT. FOR EXAMPLE, WE DON’T MAKE ANY WARRANTIES ABOUT ANY CONTENT OR FEATURES OF THE SERVICES, INCLUDING THEIR ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS.

B.         Assumptions of Risk

You understand that certain portions of the Services are made possible by third parties. You agree that Company Parties do not control any third parties and won’t be responsible for any losses or harm that they cause either directly or indirectly.

This includes facilities provided by the Network Partner. The applicable Network Partner, not Company, is responsible for safety in the Network Partner’s facilities. IN NO EVENT COMPANY BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY ACT, ERROR OR OMISSION THAT ARISES OUT OF OR IS ANY WAY CONNECTED WITH YOUR ATTENDANCE, USE OF, OR PARTICIPATION IN NETWORK PARTNER FACILITY OR A CLASS PROVIDED THEREIN. COMPANY IS NOT AN AGENT OF ANY THIRD PARTY, INCLUDING NETWORK PARTNERS.

Content is for informational purposes only. The content provided on the Services is for informational and entertainment purposes only and should not be relied upon for making significant decisions regarding your personal, professional, or medical matters. The information presented here is not intended to replace professional advice, diagnosis, or treatment from qualified experts in various fields. We strongly advise you to consult with a certified professional before making any major decisions or changes based on the content provided on this Services. By using the Services, you acknowledge and agree that any reliance on the information provided is at your own risk. The Company Parties are not liable for any damages or losses resulting from the use or misuse of the information on this site.

C.         Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE LICENSED PARTIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR INDEPENDENT CONTRACTORS BE LIABLE (JOINTLY OR SEVERALLY) FOR: (1) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES, OR (2) DAMAGES ARISING FROM INTERRUPTIONS; DELETION OF FILES, EMAIL, OR DATA; SYSTEM ERROR, FAILURE OR MALFUNCTION; VIRUSES; DELAYS IN OPERATION OR TRANSMISSION; OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL; OR (3) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

D.         What Happens if You Break Our Rules

Before we take any action described herein, we may try to give you notice unless doing so would cause someone else harm, compromise the Services, or violate any Law. If you violate the Law, these Terms or any Other Terms and we don’t take action right away, that doesn’t mean we give up any rights that we may have. We may take appropriate action in the future.

If Your Content violate these terms, any Other Terms or Law, or the rights of another person, we may remove Your Content.

E.         Termination

We have the right to terminate your Membership. We may terminate your Membership and your access to the Services if you violate these Terms, Other Terms, or Law, or the rights of another person, or for any other reason in our sole discretion. If this happens, any license granted to you in connection with the Services are terminated immediately, and you won’t be entitled to any refunds. We also reserve the right to terminate any other accounts you may create or have created.

F.         Indemnification

If someone sues Company or any other Company Party or Licensed Party, you may have to pay for defense and legal fees. You agree to defend, indemnify and hold Licensed Parties and any of their respective officers, directors, shareholders, employees, or independent contractors harmless from and against any claims asserted against any of them arising out of or relating to your use or actual or alleged misuse of the Services, violation of these Terms or any Other Terms, Your Content, or your negligence or misconduct. This applies to all liabilities or expenses arising from claims, losses, damages, judgments, fines, litigation costs, and legal fees. You shall cooperate as fully as reasonably required in the defense of any such claim. Any Company Party reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

G.         Resolving Disputes; Agreement To Arbitrate; Class Action and Jury Waiver

Last Updated: July 29, 2024

PLEASE READ THIS SECTION (THE “ARBITRATION AGREEMENT”) CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN CLASS, COLLECTIVE, CONSOLIDATED (OTHER THAN ANY BATCHING PROCEDURES CONDUCTED BY THE ARBITRAL FORUM), PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION IN ARBITRATION OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

• 1.     Definitions Related to this Section

  • “ADR Services” means ADR Services, Inc., www.adrservices.com.

  • “ADR Services Batching Procedure” means for the ADR Services to (i) administer Claims in at least 20 batches, with the discretion to create additional batches if ADR Services finds that they are necessary to facilitate the efficient resolution of demands; and (ii) apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in ADR Services’ then-current Mass Consumer Non-Employment Arbitration Fee Schedule.

  • “ADR Services Rules”, means ADR Services rules and procedures then in effect.

  • “FAA” means that Federal Arbitration Act, 9 U.S.C. § 1 et seq.

  • “NAM” means National Arbitration and Mediation (www.namadr.com).

  • “NAM Rules” means NAM rules and procedures, including any supplementary rules and fee schedules, then in effect.

  • “Opt-Out Notice” means the written opt-out notice to opt out of the Arbitration Agreement.

  • “Opt-Out Period” means within 30 days from the earlier of the date that you: (1) first accessed the Services or (2) first provided information to the Services after the posting of these Terms.

• 2.     Mandatory Individual Arbitration

Any Dispute, whether such Dispute arose before, on, or subsequent to you entering these Terms, and if not resolved through the informal dispute resolution procedure set forth below, shall be exclusively resolved by individual, binding arbitration in accordance with this Arbitration Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory, in whole or in part, and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding the foregoing and the Class Action/Jury Trial Waiver below, you and Company Parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other IP rights. Any legal action by Company Parties against a non-consumer or its interactions with governmental and regulatory authorities shall not be subject to arbitration. Either party may also elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.

To the fullest extent permissible by applicable law, all claims against Company Parties, including but not limited to claims arising out of or relating in any way to the Services or the Terms, must be filed within one year after such claim or cause of action arose or it will be forever barred.

If any court or arbitrator determines that this Arbitration Agreement is void or unenforceable for any reason as to Disputes arising before the date of posting of this Arbitration Agreement, then you may still be bound to previous versions of this Arbitration Agreement by reason of your separate agreement to those previous versions.

If any Dispute is determined not to be subject to arbitration or resolution in small claims court, the exclusive jurisdiction and venue for proceedings concerning such Dispute shall be the federal or state courts of competent jurisdiction in Colorado, and shall be interpreted, governed, and enforced in accordance with substantive and procedural law of the State of Colorado, without regard to choice of law or conflict of law provisions.

• 3.     Class Action / Jury Trial Waiver

You and Company Parties agree that, to the fullest extent permitted by law, each party is waiving the right to a trial by jury or to participate as a plaintiff, claimant, or class member in any class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), private attorney general, or representative proceeding. This means that you and Company Parties may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Company Parties may not participate in any class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), private attorney general, or representative proceeding brought by any third party.

Unless both you and Company Parties agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), or representative proceeding. If any court or arbitrator determines that this Class Action/Jury Trial Waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the Arbitration Agreement shall be deemed null and void in its entirety, and you and Company Parties shall be deemed not to have agreed to arbitrate Disputes.

To the extent that any claims are allowed to proceed on a class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), or representative basis, such claims must be litigated in a federal or state court of competent jurisdiction in Colorado, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Notwithstanding the foregoing, you or Company Parties may participate in a class-wide settlement.

• 4.     Opt-Out Procedures

To opt out of this Arbitration Agreement, you must send us a written Opt-Out Notice by email at legal@egym.com within the Opt-Out Period. The Opt-Out Notice must contain your full legal name, your complete mailing and email address and phone number, a clear statement that you wish to opt out of this Arbitration Agreement, and your signature. If your Opt-Out Period has passed, you are not eligible to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other provisions of the Terms will continue to apply to you. Additionally, if you opt out of this Arbitration Agreement, you may still be bound to previous versions of this Arbitration Agreement by reason of your separate agreement to those previous versions. In other words, opting out of this Arbitration Agreement shall have no effect on any previous, other, or future arbitration agreements you may enter into with Company Parties. As stated above, if you do not opt out of this Arbitration Agreement within the Opt-Out Period, then you will be bound to the terms and conditions of this Arbitration Agreement which shall supersede and replace in its entirety all previous versions of Company Parties’ arbitration agreements and class action provisions. If you timely provide Company Parties’ with a valid Opt-Out Notice, all Disputes shall be subject to the exclusive jurisdiction of, and you consent to venue in, the state and federal courts located in Colorado.

• 5.     Rules and Governing Law

Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, in the event of a Dispute, you and Company Parties each agree to send the other party a written Notice of Dispute. A Notice of Dispute from you to Company Parties must be emailed to the Notice Address. Any Notice of Dispute must include (i) the claimant’s full legal name, complete mailing address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) any relevant facts regarding claimant’s use of the Services, including whether claimant receives any emails associated with the Services, whether claimant has made a purchase from Company Parties, and if so, the date(s) of the purchase(s); and (iv) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute. Company Parties will send any Notice of Dispute to you at the email address or mailing address it has for you, if any.

After receipt of a Notice of Dispute, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the Notice of Dispute, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution.

Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Company Parties have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, the parties agree that a court of competent jurisdiction may enjoin the filing or stay the prosecution of an arbitration. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.

If the parties cannot resolve the Dispute through the Informal Dispute Resolution Procedures above, you and Company Parties each agree that all Disputes shall be resolved exclusively through final and binding individual arbitration, rather than in court. The parties may agree to waive hearings and resolve Claims through submission of documents. Any arbitration hearing will be conducted remotely by telephone or video conference to the extent possible, but if the arbitrator determines, or the parties agree, that a hearing should be conducted in person, the arbitration hearing will take place as close to your residence as practicable, or another agreed upon locale, and shall be before one arbitrator.

All Disputes shall be submitted to NAM, for arbitration before one arbitrator. The arbitration will be administered by NAM in accordance with the NAM Rules, except as modified by this Arbitration Agreement. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the NAM Rules. A form for initiating arbitration proceedings is available on NAM’s website at https://www.namadr.com/resources/rules-fees-forms/. You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented). The parties agree that submission of the certification shall be required for the claim to be deemed properly filed. For additional information on how to commence an arbitration proceeding, you can contact NAM at customerservice@namadr.com.

If NAM determines that 25 or more substantially similar arbitration demands presented by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization are allowed to be submitted for arbitration, NAM’s mass filing fee structure shall apply and the parties agree that the arbitrations will proceed in accordance with the batching process as follows: (i) NAM shall administer the arbitration demands in batches of at least 25 claims, with the discretion to create additional batches if NAM finds that they are necessary to facilitate the efficient resolution of demands; (ii) NAM shall provide for the resolution of each batch as a single consolidated arbitration with one procedural calendar and one hearing (if any) and one final award; and (iii) NAM shall apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in NAM’s fee schedule. You agree to cooperate in good faith to implement this batch approach to facilitate the efficient resolution of these Claims. All parties agree that arbitrations are of a “substantially similar nature” for purposes of this batching procedure for claims administered by NAM if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. This batching procedure for claims administered by NAM shall in no way be interpreted as authorizing class arbitrations of any kind. Company Parties reserve all rights and defenses as to each and any demand and claimant. If any court or arbitrator determines that this batching procedure for claims administered by NAM and the ADR Services Batching Procedure (see below) are both void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the Arbitration Agreement shall be deemed null and void in its entirety, and you and Company Parties shall be deemed not to have agreed to arbitrate Disputes.

If NAM notifies the parties in writing that it is not available to arbitrate any Claim, or if NAM is otherwise unable to arbitrate any Claim, that Claim shall be submitted to ADR Services, for final and binding individual arbitration before one arbitrator. The arbitration will be administered by ADR Services in accordance with the ADR Services Rules, except as modified by this Arbitration Agreement. If there are 20 or more substantially similar Claims that are allowed to be submitted for arbitration but cannot be arbitrated by NAM, and are presented to ADR Services by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization, ADR Services shall (i) administer those Claims in at least 20 batches, with the discretion to create additional batches if ADR Services finds that they are necessary to facilitate the efficient resolution of demands; and (ii) apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in ADR Services’ then-current Mass Consumer Non-Employment Arbitration Fee Schedule. You agree to cooperate in good faith to implement this ADR Services Batching Procedure to facilitate the efficient resolution of these Claims. This ADR Services Batching Procedure shall in no way be interpreted as authorizing class arbitrations of any kind. Company Parties reserve all rights and defenses as to each and any demand and claimant.

Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the FAA, will govern its interpretation and enforcement and any proceedings under it. It is the intent of the parties that the FAA and the NAM Rules or ADR Services Rules (as applicable) shall preempt all state laws to the fullest extent permitted by law. If the FAA and the NAM Rules or ADR Services Rules (as applicable) are found to not apply to any issue that arises under this Arbitration Agreement, then that issue shall be interpreted, governed, and enforced in accordance with substantive and procedural law of the State of Colorado, without regard to choice of law or conflict of law provisions.

At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. An arbitrator’s award that has been fully satisfied shall not be entered in any court.

As in court, you and Company Parties agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b) and any applicable state laws of similar import, including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules or ADR Services Rules (as applicable), Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.

Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law.

Arbitrator’s Fees: You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM, ADR Services (as applicable), and/or the arbitrator to address the apportionment of the arbitrator’s fees.

Confidentiality: The parties agree that the arbitrator is authorized to issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.

Requirement of Individualized Relief: The parties agree that the arbitrator is authorized, upon either party’s request, to award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If any of the prohibitions on non-individualized declaratory or injunctive relief, class, representative, and private attorney general claims, or consolidation set forth under this Arbitration Agreement are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then, after exhaustion of all appeals, the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated.

You agree that any arbitrations between you and Company Parties will be subject to this Arbitration Agreement and not to any prior arbitration agreement you had with Company Parties, and, notwithstanding any provision in these Terms to the contrary, you agree that this Arbitration Agreement replaces any prior arbitration agreement you had with Company Parties, including with respect to claims that arose before this or any prior arbitration agreement.

• 6.     Opt-Out of Future Changes to Arbitration Agreement

Notwithstanding any provision to the contrary, if Company Parties make any future change to this Arbitration Agreement (other than a change to the Notice Address or other non-material changes), you may reject any such change by sending Company Parties an email to legal@egym.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) the change(s) you are rejecting, (v) and, if applicable, the username or email address associated with any purchase from or membership with Company Parties. It must include a statement, personally signed by you, that you wish to reject the specified change to the Arbitration Agreement. This is not an opt out of arbitration altogether.

• 7.     Severability & Survival

If any provision of this Arbitration Agreement, or a portion thereof, is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.

Notwithstanding the foregoing, if any court or arbitrator determines that the batching procedure for claims administered by NAM (set forth above) and the ADR Services Batching Procedure are both void or unenforceable for any reason or that an arbitration can proceed on a class basis, then, after exhaustion of all appeals, the Arbitration Agreement shall be deemed null and void in its entirety.

This Arbitration Agreement shall survive termination of these Terms. Except as provided in the opt-out provisions set forth in subsections G (3) and G (5) above, the terms and conditions of this Arbitration Agreement shall supersede and replace any and all previous arbitration and class action/jury waiver agreements you may have entered into with Company Parties.

VIII.   NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

IX.     NOTICE TO NEW JERSEY USERS

The sections on indemnification and limitation of liability may not apply to New Jersey residents.

X.     MISCELLANEOUS

You may not assign or transfer any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without our prior written permission. We may assign or transfer any of our rights or obligations hereunder without your permission and without notice to you.

If any clause within these Terms is found to be invalid, unenforceable, void, voidable, or illegal, that clause will be severed and the remainder of the Terms will be given full force and effect.

These Terms, together with Other Terms, represent the entire agreement between you and us and supersede any prior agreements or understandings, whether written or oral, between you and us.

All provisions of these Terms that would reasonably be expected to survive the termination of this agreement including, without limitation, those related to IP, limitation of liability, and indemnification, will do so.

Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our authorized representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

We will be excused from performance under these Terms, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond our reasonable control.

This Agreement is between you and us. There are no third-party beneficiaries.

If you have questions about these Terms, please email: service@egym-wellpass.com.