THIS contractor AGREEMENT (the “Agreement”)

 

BETWEEN: THE CLIENT HEREIN REFERRED TO AS Xcel Fitness NZ Ltd.

 

– AND –

 

THE contractor HEREIN REFERRED TO AS

 

(the “contractor”)

 

BACKGROUND:

 

The client is of the opinion that the contractor has the necessary qualifications, experience, abilities and insurance to provide services to the customers who comes to the gym facility of the client

 

The contractor is agreeable to providing gym related services to the customers who visit the gym of the client on the terms and conditions set out in this Agreement.

 

IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the client and the contractor (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:

 

Services Provided

 

The contractor shall be providing all gym related services for the customers who come to the gym belonging to the client as a contractor, trainer and instructor.

 

The contractor shall be bringing in its own customers for training in the facility

 

All payments in regards to the training of the customers shall be paid directly to the contractor.

 

Before signing this agreement it is agreed and expected that the contractor has the necessary liability insurance in place, on no account shall the client be responsible for the liabilities of the contractor under this agreement.

 

It is agreed and understood that the client is protected from any and all related liabilities of the customer and the contractor.

 

The Services will also include any other tasks which the Parties may agree on. The contractor hereby agrees to provide such Services to the customers.

 

Termination

 

This agreement between the client and the contractor shall be for as long as both parties chooses, however the contractor understands the client has the right to terminate the services of the contractor in the event the contractor goes against the laid down rules and regulations of the facility and the client including but not limited to issue pertaining to liability insurance.

 

 

Term of Agreement

 

The term of this Agreement (the “Term”) will begin on the date of this Agreement and will remain in full force and effect between both parties for as long as both parties decide to work together.

 

In the event that the contractor breaches a material provision under this Agreement, the client shall have the right to terminate this Agreement and require the contractor to pay all reasonable damages.

 

Performance

 

The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.

 

Payment

 

For the facility been used by the contractor under this Agreement, the contractor shall provide a fixed rate payment on a fortnightly basis (the “Payment”) to the client of a fixed amount as set out in the selected membership for the use and provision of facility to the contractor. Any defaults will incur a $15 charge per default which will be payable by the contractor.

 

Confidentiality

 

Confidential information (the “Confidential Information”) refers to any data or information relating to the client, whether business or personal, which would reasonably be considered to be private or proprietary to the client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to the client.

 

The contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the contractor has obtained, except as authorized by the client or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement.

 

All written and oral information and material disclosed or provided by the client to the contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the contractor.

 

Ownership of Property

 

All property and related material (the “Property”) that is used in the facility under this Agreement will be the sole property of the client. The use of the Property by the client will not be restricted in any manner.

 

The contractor must not use the Property for any purpose other than that for which it is initially meant for under this Agreement except with the written consent of the client. The contractor will be responsible for any and all damages resulting from the unauthorized use of the Property.

 

Return of Property

 

Upon the expiry or termination of this Agreement, the contractor will return to the client any documentation, records, or Confidential Information which is the property of the client

 

Capacity/Independent Contractor

 

In providing the Services under this Agreement it is expressly agreed that the contractor is acting as an independent contractor and not as an employee of the client. The contractor and the client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.

 

Indemnification

 

The contractor agrees to indemnify and hold harmless the client, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.

 

Dispute Resolution

 

In the event a dispute arises out of or in connection with this Agreement, the Parties will attempt to resolve the dispute through friendly consultation.

 

If the dispute is not resolved within a reasonable period then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is unavailable or is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of New Zealand. The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction within New Zealand.

 

Modification of Agreement

 

Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.

 

Time of the Essence

 

Time is of the essence in this Agreement.

 

Force Majeure

 

The client shall not be liable for failure of the contractor to perform, nor be deemed to be in default under this agreement for any delay or failure in performance resulting from causes beyond its reasonable control including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure.

 

Assignment

 

The contractor will not voluntarily or by operation of law assign or otherwise transfer its obligations under this Agreement without the prior written consent of the client.

 

Entire Agreement

 

It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.

 

Inurnment

 

This Agreement will inure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.

 

Governing Law

 

It is the intention of the Parties to this Agreement that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of New Zealand without regard to the jurisdiction in which any action or special proceeding may be instituted.

 

Severability

 

In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.

 

The contractor agrees that their customers must abide by all standard member rules where applicable as set out as below:

 

1. Member is entitled to full use of the facility and activities. Member(s) shall be required to provide their own workout clothes.

2. Member may be subject to additional charges for participation in Training Classes and Special Events.

3. Member agrees to abide by all membership regulations of Xcel Fitness NZ Ltd. Member(s) agree to comply with stated and customary rules for participation and use of equipment. Persons under the age of 18 are not permitted in the gym/exercise area, unless accompanied by an adult/parent/guardian. Children under the age of 14 are forbidden to use any gym equipment.

4. If Member(s) violates any of the rules and regulations for use of the facility, Xcel Fitness NZ Ltd may suspend Member’s right to use the facility until such time as the Member provides Xcel Fitness NZ Ltd with reasonable assurance of future compliance. During the period of any such suspension, Member shall not be entitled to a credit for any prepayment of dues or other fees due or paid pursuant to this Membership agreement.

5. Member(s) authorize Xcel Fitness NZ Ltd to contact them by e-mail and telephone.

6. The hours of operation shall be posted on the premises. Hours and days of operation shall be subject to change at the sole discretion of Xcel Fitness NZ Ltd.

7. If the facilities be unavailable for Member’s use at any other time, due to damage by fire, flood, acts of god, catastrophe, accident or other reason beyond the control of Xcel Fitness NZ Ltd, the membership Term will be extended for a period equal to the time of such unavailability.

8. With prior Xcel Fitness NZ Ltd approval, Members may bring guests which shall include use of all Xcel Fitness NZ Ltd facilities. All guests must be at least eighteen (18) years of age.

9. Cubbys, are provided. Personal belongings should be placed in cubbys provided. Xcel Fitness NZ Ltd is not responsible for lost, stolen, or damaged articles. Staff members are not permitted to hold valuables. Items not claimed within 30 days will be donated to charity.

10. Member(s) should conduct themselves in such a manner that will prevent the facility from being damaged; its cleanliness diminished, or in any way interfere in the attitude of promoting health in the facilities. Negative attitudes, threats, fights, disruptive or threatening conduct will not be tolerated. Member(s) agree not to use loud or profane language in/on the premises. Nor shall Member(s) molest, badger, assault, or harass other Member(s), guests, or staff. Sexual harassment will not be tolerated. Member(s) agree that horseplay, vulgar language, abuse of the equipment, working out while intoxicated, or other inappropriate behavior will not be tolerated in/or on the premises.

11. Member(s) agree that they shall not engage in any type of commercial or business activity while using the facilities. Unauthorized outside business solicitation will not be tolerated in/or on the premises.

12. Member(s) shall not act as a trainer for any other Member(s) or guests and any acts which constitute such business activities are strictly forbidden.

13. Member(s) understand that Xcel Fitness NZ Ltd prohibits the use of any drugs or steroids. Member(s) recognizes and acknowledges that there are serious criminal and civil penalties for illegal possession, sale, use, trading, or exchange of steroids and no such activity is allowed by Xcel Fitness NZ Ltd.

14. Member(s) agree to abide by the Xcel Fitness NZ Ltd dress code at all times while in the facility. Suitable, presentable and clean workout/ fitness attire is required. Long jeans, jean shorts, camouflage pants/shorts, cargo shorts, long casual pants, baggy clothes and swimming/bathing suits are not permitted. Shirts must be worn at all times. Workout pants/shorts must be pulled up to the waist; pants/shorts below the waist are not permitted. Members wearing clothing deemed inappropriate by management may be asked to leave the facilities. Shoes must be worn at all times in the gym/exercise area. Proper athletic (rubber-soled) shoes that cover the entire foot are required. No boots, hard-sole street shoes, spiked shoes, sandals, flip-flops, crocks, open-backed or open-toed shoes are permitted in the gym/exercise area.

15. Always be courteous and respectful of others. Please use equipment properly and follow directions carefully. Do not lean on the equipment. Keep your hands away from any moving parts. Equipment cannot be removed from the facility, at any time. Equipment cannot be moved by any Member without authorization from Xcel Fitness NZ Ltd, or designated staff. Only equipment belonging to Xcel Fitness NZ Ltd is allowed on the premises.

16. Beverages are only permitted if contained in a closed sports/water bottle. Food, gum or tobacco products are not permitted in the gym/exercise area at anytime.

17. To promote safety and more time efficient exercise programs, remember to return all plates, dumbbells and barbells to the designated racks. Please do not drop or throw weights and re-rack any weights used. Member(s) are responsible to wipe down all equipment after each use.

18. During high-traffic workout hours, be sure to encourage members to request permission to “work in” between sets and allow others the same courtesy when using strength training equipment. Cardiovascular equipment use is limited to 30 minutes when others are waiting.

19. Cell phones are allowed in the facility however photography and/or videography are not allowed anywhere in the facility unless authorized by the club owner.

20. Pets are not allowed, except for approved service animals. Service animals may not engage in activities, which present danger to other Member(s).

21. Member(s) who cause damage to equipment through misuse or misconduct will be held financially responsible for repair or replacement of equipment and it may result in the suspension or cancellation of the Member’s membership, with the balance of the contract being declared due and payable in full immediately.

22. The facility is under 24-hour recorded video surveillance, which may be retained by Xcel Fitness NZ Ltd for subsequent review.

23. Member(s) are required to use the safety features of the equipment. If you are unsure of how to operate or use a piece of equipment, you should obtain instructions and assistance from the staff or personal trainers.

24. Please immediately report any of the following safety issues to the staff:

•Damaged equipment or equipment malfunctions

•Unsafe gym/exercise or bathroom conditions

•Abusive, dangerous, offensive or unsafe behavior

Classes Etiquette- Please arrives early; if you are over 30 minutes late, do not enter the class. It is disruptive to others and does not allow for proper warm-up. Keep conversations for after the class. Wipe down and return equipment to its proper location. Please exit the room as soon as possible, to allow for the next class to start on time.

25: Towels are to be used at all times.