MEMBERSHIP AGREEMENT & RELEASE OF LIABILITY

 

THIS MEMBERSHIP AGREEMENT (this “Agreement”) is entered into between

Premier Upgrade Investments, LLC, located at 8941 Metcalf , Overland Park, Kansas

66212 (“Upgrade”), and  (“you,” “your,”

or “Member”) as of the Effective Date (as defined below).

1. Enrollment Fee; Membership. This Agreement governs the purchase and sale

of your membership and services at the facilities owned and operated by Upgrade. If you

are a new Member, you agree to pay an enrollment fee applicable to the membership

type of your choice. You understand and agree that the enrollment fee is a one-time,

non-refundable fee if your membership remains active and current without any

membership interruptions, unless otherwise provided herein. Upgrade expressly reserves

the right to add, eliminate, modify, and/or reschedule any and all group classes and

equipment at Upgrade facilities. By entering into this Agreement, you agree, on behalf of

yourself, your Additional Members (as defined in Schedule 1), and your guest(s), that

your (and their) access and use of Upgrade’s facilities shall be subject to all rules and

regulations of Upgrade, whether posted or un-posted, which Upgrade may change from time

to time and at any time. Upgrade reserves the right to add, eliminate, and/or relocate any

and all Upgrade locations, subject to applicable law. You understand and agree that your

membership with Upgrade does not give you any voting, proprietary, or any other rights in

Upgrade as a result of this Agreement.

 

2. Types of Membership. You agree to purchase the membership type selected

below by denoting an “X” next to your selected membership type. The benefits of each

membership type are contained in Upgrade Document ID Number 200-018, the receipt of

which you hereby acknowledge, and such document being incorporated herein by

reference. By selecting the membership type selected below, you agree to the terms

specific to that membership type as set forth on Schedule 1 attached hereto and

incorporated herein by reference.

 

Upgrade Unlimited

Upgrade Basic

Upgrade Package

 

3. Payment Method. You shall make membership payments (or any required

payments to place a hold on your membership) at the interval(s) and in the amounts

specified in the terms relating to your selected membership type as set forth in Schedule

1, via one of the following automatic payment methods: (i) credit card; (ii) debit card,

 

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Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

your membership with Upgrade will be immediately suspended until you update your

payment information and your applicable membership dues are paid in full. You

expressly authorize Upgrade to attempt to collect payment via automatic debited payment

to resolve any unpaid and outstanding balance.

4. Auto-Debit. You may elect to pay membership payments via credit card or debit

card on file with Upgrade by adding a credit card or debit card to your online Upgrade

account. By placing a credit card or debit card on file with Upgrade, you and the

cardholder or account holder authorize Upgrade to charge the credit card or debit card for

any auto-debit payments and/or cancellation fees (if any) in an amount equal to the

monthly or weekly payments on the date such monthly or weekly payments become due.

By choosing to pay membership payments via automatic checking account draft, you

authorize Upgrade, and irrevocably instruct the bank or financial institution at which such

account is held, to deduct from your checking account monthly or weekly payments to

Upgrade an amount equal to the monthly or weekly payments on the date such monthly or

weekly payments become due.

Upgrade shall not be held responsible for errors in

processing due to expired or inaccurate payment information provided to Upgrade by you.

5. Member’s Right to Cancel/Terminate. You may cancel this Agreement at any time

without a cancellation fee. To cancel your membership, you must provide Upgrade written

notice via electronic mail, or a letter mailed first-class of your intent to cancel no less

than ten (10) business days prior to the due date of your next membership payment.

Failure to provide timely notice within such period will result in a charge for the full

amount of your next membership payment with the cancellation to take affect the

subsequent week / month. If, at the time of receipt of your cancellation notice, you owe

membership payments to Upgrade, these payments must be made in full for this

Agreement to terminate. In the event that you fail to pay outstanding amounts owed,

your membership will be considered suspended, this Agreement will not be terminated,

and Upgrade will have the right to pursue additional remedies or means to collect monies

owed. Termination or cancellation of your membership under this Agreement shall also

terminate and cancel the membership of your Additional Members.

This Agreement will immediately terminate if you die or become permanently

disabled and unable to use a substantial portion of the services offered by Upgrade

hereunder for a period of sixty (60) or more consecutive days. Upgrade must receive

notice of your death or disability. Upon Upgrade’s receipt of such notice, Upgrade will

reimburse funds paid or accepted during the period of disability or the period between

your death and Upgrade’s receipt of notice thereof, if required by applicable law. You, or

your estate, shall be relieved from obligation of making payment for services other than

those received or obligated prior to the death or onset of the disability; provided,

however, that, in the case of disability, you must provide a doctor’s note regarding the

nature and extent of your claimed disability. You may also terminate this Agreement if

you move further than twenty-five (25) miles from the location of Upgrade; provided,

however, that you must provide Upgrade proof of new residence to terminate.

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Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

6. Member’s Statutory Right to Cancel. If you wish to cancel this Agreement, you

may cancel by delivering written notice to Upgrade by certified mail, return receipt

requested. The notice must say that you do not wish to be bound by this Agreement and

must be delivered or mailed before midnight of the third (3 rd ) business day after you sign

this Agreement. The notice must be delivered or mailed to the Upgrade’s address set

forth herein. In the event you cancel this Agreement pursuant to this Section 6, Upgrade

will reimburse you all funds paid to Upgrade as of the date of such cancel.

7. RELEASE OF LIABILITY; INDEMNIFICATION. IN CONSIDERATION OF YOUR USE

OF THE EXERCISE EQUIPMENT AND FACILITIES PROVIDED BY UPGRADE, YOU

EXPRESSLY AGREE, WITH THE INTENT TO BE LEGALLY BOUND, ON BEHALF OF

YOURSELF, YOUR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND

ASSIGNS, THAT UPGRADE AND ALL OF UPGRADE’S CURRENT AND FORMER AGENTS,

SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, ASSOCIATES,

EMPLOYEES, CONTRACTORS, REPRESENTATIVES, PARENT ORGANIZATIONS,

SUBSIDIARIES, AFFILIATES, INSURERS AND ALL OF THEIR HEIRS, EXECUTORS,

SUCCESSORS AND ASSIGNS (HEREINAFTER THE AFOREMENTIONED ENTITIES AND

PERSONS ARE COLLECTIVELY REFERRED TO AS “RELEASEES”), SHALL NOT BE

LIABLE FOR ANY DAMAGES ARISING FROM PERSONAL INJURIES (INCLUDING DEATH)

SUSTAINED BY YOU, YOUR ADDITIONAL MEMBERS, OR YOUR GUEST(S) IN, ON, OR

ABOUT THE PREMISES OF UPGRADE, OR AS A RESULT OF THE USE OF THE EQUIPMENT

OR FACILITIES, REGARDLESS OF WHETHER SUCH INJURIES RESULT, IN WHOLE OR IN

PART, DIRECTLY OR INDIRECTLY, FROM THE NEGLIGENCE OR FAULT OF UPGRADE OR

ANY RELEASEE.

BY EXECUTING THIS AGREEMENT CONTAINING THIS LIABILITY WAIVER &

RELEASE OF LIABILITY, YOU ACCEPT AND ASSUME FULL RESPONSIBILITY FOR ANY

AND ALL INJURIES, DAMAGES (BOTH ECONOMIC AND NON-ECONOMIC), AND LOSSES

OF ANY KIND, WHICH MAY OCCUR TO YOU, YOUR ADDITIONAL MEMBERS, OR YOUR

GUEST(S), AND YOU HEREBY FULLY AND FOREVER RELEASE AND DISCHARGE

RELEASEES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, RIGHTS OF ACTION,

CAUSES OF ACTION, PRESENT OR FUTURE, KNOWN OR UNKNOWN, ANTICIPATED OR

UNANTICIPATED, RESULTING FROM OR ARISING OUT OF THE USE OF SAID

EQUIPMENT AND FACILITIES, OR RESULTING FROM OR ARISING OUT OF THE

NEGLIGENCE OR FAULT OF UPGRADE OR ANY RELEASEE.

YOU HEREBY AGREE TO INDEMNIFY AND HOLD UPGRADE AND RELEASEES

HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, RIGHTS OF ACTION,

AND CAUSES OF ACTION, BROUGHT BY ANY PERSON OR ENTITY, WHICH MAY ARISE

FROM INJURIES OR DAMAGES SUSTAINED BY YOU, YOUR ADDITIONAL MEMBERS, OR

YOUR GUEST(S), INCLUDING ANY SUCH INJURIES OR DAMAGES RESULTING FROM

THE NEGLIGENCE OR FAULT OF UPGRADE OR ANY RELEASEE.

YOU AGREE TO BE SOLELY RESPONSIBLE FOR THE SAFETY AND WELL-BEING

OF YOURSELF, YOUR ADDITIONAL MEMBERS, AND YOUR GUEST(S). YOU

UNDERSTAND AND ACKNOWLEDGE THAT UPGRADE DOES NOT PROVIDE SUPERVISION,

INSTRUCTION, OR ASSISTANCE IN CONNECTION WITH THE USE OF ITS FACILITIES

AND EQUIPMENT.

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Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

YOU AGREE TO COMPLY WITH ALL RULES IMPOSED BY UPGRADE REGARDING

THE USE OF THE FACILITIES AND EQUIPMENT. YOU AGREE TO CONDUCT YOURSELF

IN A CONTROLLED AND REASONABLE MANNER AT ALL TIMES, AND TO REFRAIN FROM

USING ANY EQUIPMENT IN A MANNER INCONSISTENT WITH ITS INTENDED DESIGN,

PURPOSE AND USE.

YOU ACKNOWLEDGE THAT THE USE OF UPGRADE’S FACILITIES AND EQUIPMENT

INVOLVES AN INHERENT RISK OF PERSONAL INJURY TO YOU, YOUR ADDITIONAL

MEMBERS, AND YOUR GUEST(S). YOU VOLUNTARILY AGREE TO ASSUME ALL RISKS

OF PERSONAL INJURY TO ME AND MY GUEST(S) ARISING OUT OF THE USE OF THE

COMPANY’S FACILITIES AND EQUIPMENT.

YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE

FOR PROPERTY THAT IS LOST, STOLEN, OR DAMAGED WHILE IN, ON, OR ABOUT THE

COMPANY’S PREMISES.

YOU HAVE CAREFULLY READ THE FOREGOING LIABILITY WAIVER & RELEASE

OF LIABILITY AND FULLY UNDERSTAND ITS TERMS. YOU HAVE VOLUNTARILY

EXECUTED THIS AGREEMENT WITH FULL KNOWLEDGE AND UNDERSTANDING OF ITS

CONTENT.

8. Media Consent, Release and Waiver. You hereby grant your full consent and

permission to Upgrade and its parent organizations, affiliates, and subsidiaries, and all of

their employees and agents, to photograph, videotape, or otherwise digitally record and

use images and/or sound recordings of yourself and your Additional Members or guests

(herein “Materials”) to use in any public media, including without limitation, radio,

television, website, social media, print, or in any publications, productions, or posts of

Upgrade or its parent organizations, affiliates, and subsidiaries. You further grant my full

consent and permission to Upgrade to post Materials created or posted on social media by

you, your Additional Members, or your guest(s) on Upgrade’s website, YouTube

account/page, Instagram account/page, Facebook account/page, Twitter account/page

and any other social media account/page used by or in connection with Upgrade. You

understand that the intended use of Materials is solely for purposes of advertising,

marketing, fundraising and/or the promotional and public awareness purposes of Upgrade,

its parent organizations, affiliates, and subsidiaries. You hereby waive any rights or

interest in the Materials contemplated in this Website and Social Media Release.

You hereby release and forever discharge Upgrade and its current and former

agents, shareholders, members, managers, directors, officers, associates, employees,

contractors, parent organizations, subsidiaries, and affiliates from any and all claims,

liability, actions, suits, demands, costs, expenses or indebtedness arising out of or in

connection with the use of Materials by Upgrade or its parent organizations, affiliates, and

subsidiaries, including, without limitation, any claims for invasion of privacy, infringement

of any right of publicity, defamation and any other personal and/or property rights. You

hereby waive all rights and interest in and to the Materials.

You acknowledge and agree that no compensation whatsoever will be due to you

as a result of the use and/or publication of the Materials or the exercise of any of Upgrade’s rights therein. You further acknowledge and agree that Upgrade is in no way

guaranteeing that any Materials depicting or otherwise relating to you will be used in

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Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

released media. To the extent that any benefit accrues or might accrue to Upgrade from

the use of Materials, you hereby and forever waive any interest in or claim to such

benefits.

You fully understand the contents, meaning and impact of this Media Consent,

Waiver and Release. You understand and acknowledge that this consent, waiver, and

release is voluntary, and your execution of this document is an act of your own free will.

You acknowledge and agree that you have been informed that you may revoke the

consent at any time, except when action has been taken in reliance of this Media

Consent, Release and Waiver, and understand that you have the right to notify Upgrade of

such revocation.

9. COVID-19 WARNING. Under Missouri law, any individual entering the premises or

engaging the services of Upgrade waives all civil liability against Upgrade for any damages based

on inherent risks associated with an exposure or potential exposure to COVID-19, except for

recklessness or willful misconduct.

10. Miscellaneous.

a. Upgrade Rules; Damages. You agree to abide by all rules and regulations,

posted or un-posted, of Upgrade at all times. Members who do not observe Upgrade’s rules

and regulations or who abuse or misuse equipment in any fashion will be asked to leave.

Upgrade has the right to judge behavior and respond accordingly in its sole and absolute

discretion. This right includes, but is not limited to, termination of membership without

refund to any member engaging in unacceptable behavior. You shall pay for any

damages to Upgrade property which results from your willful or negligent conduct, or the

willful or negligent conduct of any of your guests or Additional Member(s), or your

child(ren). Not all rules and regulations are listed in this Agreement. Upgrade reserves the

right to add, change, or remove rules and regulations, conditions of membership,

opening and closing hours, and all services and facilities offered by Upgrade from time to

time and at any time in its sole and absolute discretion.

b. Assignment. Upgrade may assign its interest(s) in this Agreement without

your consent: provided, however, that any subsequent holder of this Agreement is

subject to all claims and defenses you could assert against Upgrade. You understand and

agree that you have no right to assign or otherwise transfer any of your rights under or

interest in this Agreement except as otherwise expressly provided herein.

c. Governing Law. This Agreement shall be governed by the internal laws of

the State of Kansas, without regard to its choice of law provisions.

d. Severability. In the event any one or more of the provisions of this

Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any

respect, such invalidity, illegality, or unenforceability shall not affect any other provision

of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or

unenforceable provision had never been contained herein.

e. Integration; Modification. This Agreement may not be changed,

amended, or modified except by agreement in writing signed by both you and Upgrade.

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Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

f. Cumulative Rights. If more than one person or entity executes this

Agreement as Member, all of said parties shall be jointly and severally liable for payment

of the membership fees and other sums that may become due and owing hereunder.

g. Notices. Unless you notify Upgrade in writing of any change in your

address or email address, any notices Upgrade sends to you are sufficient if sent to your

address or email address shown on this Agreement. You must notify Upgrade within 30

days of any change in your address, email address, or payment information.

11. Effective Date. This Agreement shall become effective on the date that you sign

this Agreement (the “Effective Date”). Upgrade agrees to provide you an executed copy of

this Agreement upon request during normal business hours; provided, however, that

nothing in this Section X obligates Upgrade to provide you an original executed copy of

this Agreement unless otherwise required by applicable law.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. THIS AGREEMENT FORMS A

LEGALLY BINDING AGREEMENT AND CONTAINS A RELEASE, DISCLAIMER, AND

LIMITATION OF LIABILITY. BY SIGNING THIS AGREEMENT, YOU AGREE TO BE

LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT.

IN WITNESS WHEREOF, Member and Upgrade have executed this Agreement

intending to be legally bound as of the Effective Date.

Upgrade Group Training Membership Agreement: Version 1.0

Identification Number: 200-019

 

SCHEDULE 1

Membership Types

 

Upgrade Unlimited: You agree to pay to Upgrade a $100.00 enrollment fee to obtain an Unlimited Membership with Upgrade.

You agree to pay $34.50 to Upgrade on the Effective Date on the same day of each week thereafter (the “Unlimited

Membership Fee”) until this Agreement terminates as provided herein. You agree that this Agreement shall become

effective on the Effective Date and continue in effect until unless terminated in accordance with the terms of this Agreement. While this Agreement is in effect, you have the

right to place a hold on your membership for up to one (1) week out of every month, during which time you will not be obligated to pay

the Unlimited Membership Fee, except as otherwise provided herein. The Unlimited Membership gives you the right to add

additional individuals to your membership (“Additional Members”) at the following rates, which shall be paid in addition

The UGT Membership gives you the right to add Additional

Members to your membership for $29.50 per week per Additional Member, which shall be paid in addition to the UGT

Monthly Membership Fee.

Weekly UGT Membership: You agree to pay $34.50 to

Upgrade on the Effective Date and on the same day of each week thereafter (the “Weekly UGT Membership Fee”) until

this Agreement terminates as provided herein.

Special Rate Membership: The Special Rate Membership is available only to healthcare professionals, first

responders, students, and active-duty military personnel. By selecting the Special Rate Membership, you represent

and warrant to Upgrade that you are a healthcare professional, first responder, or active-duty military personnel as of

the Effective Date. No enrollment fee applies to the Special Rate Membership. You agree to pay the decided amount on

the Effective Date and on the same day of each week thereafter (the “Special Rate Membership Fee”) until this

Agreement terminates as provided herein. While this Agreement is in effect, you have the right to place a hold on your

Special Rate Membership at no cost for up to one (1) week out of every month, during which time you will not be

obligated to pay the Special Rate Membership Fee.

 

NOTICE

 

ANY HOLDER OF THIS CONTRACT OR NOTE IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR

COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF.

RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

Do you have a doctor’s permit to participate in intense physical activities? By choosing "No" you're not under the care of a doctor for any reason that would impair your level of activity and to your knowledge healthy enough to exercise.

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