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This article is written by Amrita Dasgupta pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho

Introduction

Often, we are awestruck by the thought of a gym agreement. We have heard of the partnership agreement, cofounder’s agreement, distribution agreement, etc., but it’s not very often that we hear of a gym agreement.

Any member who comes to take a membership should be provided with two mandatory documents – gym agreement and gym application form. An application form is to keep all the relevant information of a to-be-member on records and the gym agreement is to list down the necessary clauses to be agreed upon by both parties. As soon as the member signs and agrees to the clauses in the agreement, he/she is bound by all the clauses in the contract. This gives a legal obligation on the part of both parties.

The agreement normally entitles the member’s access to participate in the classes, enjoy the amenities offered by the gym including but not limited to – changing rooms, showers, lockers, use of different equipment like barbell, kettlebell, weight, etc. Further, it also specifies the terms of payment and renewal procedure, the terms and conditions based on which membership shall be terminated, etc.

In this article, I would like to elaborate on the clauses that should be incorporated in a gym agreement and the purpose of such an agreement.

Terms of the gym agreement

This section explains all the mandatory clauses that should not be missed out under this agreement.

  • Membership 

  1. Whether refundable or non-refundable.
  2. Whether memberships are transferable or non-transferable. In case the membership is transferable the gym shall not be liable and/or responsible for such transfers, but an intimation of such transfer shall be made to the gym authorities.
  3. Renewal terms of the membership.
  4. By joining the gym, members automatically accept and agree to be bound by these conditions of membership.
  5. In case the members encounter any accidents and/or physical injury at any point during the existence of this agreement, whether the membership can be transferred or halted or any other rule to be set forth under this agreement.
  6. Is there any attendance recording system for the members?
  • Opening hours

  1. When shall the members be allowed within the premises of the gym?
  2. Is there any class booking option for the members?
  • Freeze of membership policy

  1. Is it a yearly subscription or monthly?
  2. In the case of a yearly membership, can the membership be put on hold? If yes, for how many months?
  3. Will there be fees applicable for such a period? 
  4. How shall reactivation of membership be made?
  5. Billing procedure for such a period.
  • Late payment

  1. By when shall monthly fees be paid?
  2. What shall happen in case of late payment?
  • Cancellation of membership

  1. Cancellation procedure. 
  2. Prior written notice to be given by the member in case of cancellation.
  • The obligation of the member

This clause discusses the obligations and liabilities of the members towards the gym. 

  • The obligation of the gym

This clause discusses the obligations and liabilities of the gym owners/authorities towards its members.

  • Safety and hygienic environment

This provision addresses the safety and hygiene to be maintained by the gym authorities within the premises and shall ensure the health of all the members within the premises.

  • Termination 

This clause shall discuss the reasons for which the gym authorities can terminate and/or cancel the membership of any member.

  • Privacy policy

This clause might be useful as it discusses the use of personal information of the members for marketing purposes or any other purpose as the gym may require. This shall mandate the members to agree upon the use of their personal information for the purposes mentioned under this agreement. In case any member is not willing to agree to this clause, an “opt-out” option may be included in the agreement as required.

Further, this clause should also list down clearly the use of the member’s information and for what reasons it is being collected. The gym’s website should also have a mandatory privacy policy and the gym authorities should be extremely careful while drafting this clause. 

  • Terms and conditions in case of accessing the gym’s website

This clause specifies the terms and conditions for using the gym’s website.

  • Miscellaneous

1. Conduct or damages

The gym is committed to the safety, health, and welfare of each of its members and shall not endure unreasonable, indecent, threatening, harassing, or illegal behaviour of any form. Any member who is found to misuse and/or abuse any equipment in a manner not acceptable as per the rules, the gym holds the right to permanently terminate the membership of such member without any refund. 

2. Right to add, amend or remove the clause

The gym reserves the right to add, amend and/or remove certain clauses including but not limited to conditions of membership, opening and closing hours of the gym, and the facilities and services offered by the gym.

3. Illegal activity 

Smoking, drinking, and/or any kind of offensive activities are strictly prohibited on the premises of the gym. 

4. Lost articles

The members are responsible and/or liable for their own belongings. The gym shall in no manner be liable for any articles lost and/or stolen from within or outside the premises.

5. Entire agreement

This agreement contains the entire agreement between the parties and supersedes any prior written and/or oral agreements between them w.r.t. the subject matter of this agreement. The provisions of this may be waived, altered, amended, or repealed, in whole or in part, only upon prior written consent of both parties.

6. Consent

Member has read, and fully agrees to the terms of this agreement and understands and agrees that by signing this agreement (which contains a waiver, release, and assumption of risks) member has given up considerable future legal rights. Member has signed this agreement with free consent and under no compulsion and/or coercion, without any inducement, promise, or guarantee being communicated to him/her. Member certifies and warrants that he/she is of minimum 18 years of age or older and is mentally competent to enter into this agreement.

7. Severability

If any portion of this agreement is deemed illegal, void, or unenforceable, then the remaining agreement shall remain in effect.

Draft of the gym membership agreement

This section shall unfold a sample of the gym agreement:

This gym agreement (hereinafter referred to as “agreement”) is made on __ day of _________, 2021 (hereinafter referred to as “effective date”) at Bangalore 

By and between 

Swayambhu Nath Ray, aged about 27 years, son of Mr. ______________, bearing PAN _________________, resident of ____________________________, Bangalore (hereinafter referred to as “Client”, which expression shall, unless repugnant to the context, mean and include their successors-in-interest and assigns) of the one part,

And

Rolling Fitness Private, a company registered under Companies Act 2013, bearing CIN <<>>, having its registered office at Mahatma Gandhi Road, Bangalore, India, and represented by its ____, Mr. _________ (hereinafter referred to as “gym”, which expression shall, unless repugnant to the context, mean and include their successors-in-interest and assigns) of the Other part,

The gym and the client are hereinabove collectively referred to as “parties” and individually referred to as “party”.

Whereas : 

  1. The gym has been engaged with the fitness industry for about 10 years and confirms that it has all the amenities and equipment required to run the business.
  2. The client desires to become a member of the gym and agrees to abide by all the clauses set forth in this agreement.

Now, therefore, in consideration of the promises and the mutual covenants set forth in this agreement, the parties hereto, intend to be legally bound, and so have agreed to execute this agreement as follows:

  • Membership
  1. Membership ensures and entitles the client to use the equipment and tools available in the premise until the expiry of this agreement.
  2. Membership shall be transferable by the client at any point in time. On transfer, the client ensures to intimate the gym within 10 days of such transfer with the details of such person to whom the membership has been transferred. Without such intimation, no transfer shall be considered to be valid.
  3. All members must be of a minimum of 18 years of age to avail the facilities and services provided by the gym.
  4. Renewal may be either quarterly or yearly and full payment shall be made in advance before the membership begins. Once the membership expires, the member needs to renew as soon as possible to avail of the benefits again.
  • Opening Hours

The gym shall be open from 6 AM till 9 PM throughout Monday till Saturday. On Sunday, it shall be open from 8 AM till 9 PM. The members shall need to book slots for the gym via the website before coming to the premises.

  • Freeze of membership policy
  1. For yearly subscriptions, a member shall be entitled to freeze the membership for a maximum of 2 months without any payment. Such membership shall automatically be increased by 2 months from the actual date of expiry. 
  2. For quarterly subscriptions, a member shall be entitled to freeze the membership for a maximum of 15 days without any payment. Such membership shall automatically be increased by 15 days from the actual date of expiry.
  3. The membership shall automatically resume after the freeze period ends.
  • Late payment

There is no provision of late payment as all the payments shall be made in advance.

  • Cancellation of membership

In case of cancellation of membership, a prior written notice needs to be submitted by the member within 15 days of the date of cancellation. In case of cancellation, the member shall not get any refund of the payment.

  • The obligation of the member

The members shall have the following obligations and liabilities :

  1. To abide by all the provisions set forth under this Agreement
  2. To make proper use of the amenities provided by the gym
  1. To not perform any illegal activity or consume anything which is forbidden under this Agreement within the premises of the gym
  2. To not make any damage to the property of the gym
  3. To books slots before entering the premise
  4. To not carry out any illegal activity within the premise
  • The obligation of the gym

The gym shall have the following liabilities and obligations :

  1. To maintain proper hygiene within the premises.
  2. To address the issues faced by the members.
  3. To treat all its members equally irrespective of caste, creed, status, religion, colour, etc.
  4. The gym authorities should protect the privacy of the personal data and/or information of the members.
  5. The gym should comply with all the government rules and regulations and shall have all the licenses required to run the gym.
  6. The gym shall disclose the type of physical injury a member may encounter in a particular form of exercise or in case of improper use of equipment.
  7. The gym should have a first aid section available within the premises with a trained medical assistant, in case required.
  • Safety and hygienic environment

The gym shall ensure the maintenance of a safe and hygienic environment.

  • Termination

Any member found to have damaged any property of the gym or if the member has been continuing any illegal activity within the premises of the gym or if the members breach any rules, clauses, or provisions set forth under this agreement or any other reason as the gym authorities think fit shall be terminated by the gym authorities.

  • Privacy policy

This agreement ensures that the member consents to use their personal information like name, pictures/videos in gym premises while involved in fitness training, etc, for promotional or marketing purposes.

  • Terms and conditions while accessing the gym’s website

The member shall consent to all the terms and conditions set forth on the website. In case the member does not agree to such conditions, the member may refrain from using our website.

  • Miscellaneous
  1. Illegal activities,
  2. Damages,
  3. Lost articles,
  4. Entire agreement,
  5. Severability,
  6. Governing law.

Importance of this agreement

We have seen B2B agreements negotiated, signed, and executed between the parties for future reference and/or the scope of work and obligations of both the parties are being narrowed down through an agreement; similarly; for a gym business to be carried on which is a B2C business, we need to negotiate, sign and execute an agreement for addressing all the relevant provisions and/or obligations of both the parties throughout the term of the agreement.

Though there is a huge difference between B2B and B2C agreements in terms of transactions and complexity, narrowing down the points mutually agreed upon is a clever thing to do. 

In a nutshell, under this kind of agreement, a clear instruction w.r.t. privacy policy, data security, cancellations of membership, termination of membership, transfer of membership, refund and renewal policy, obligations of both the parties are explicitly drafted. In case of any dispute that may arise between the parties, this agreement shall be the base of such dispute and may benefit either party to prepare their case. 

Unless there is an enforceable legal document, there is no clarity on which clauses the parties have agreed on and which clauses the parties have disagreed with. 

Conclusion

The points relevant and compulsory for such an agreement have been explained in order to give an idea to the layman to decipher the importance of clauses and what to look into while going through the agreement. For example, most prudent individuals even can fall prey to data privacy as they would not review and analyse the agreement before signing the same. By drafting this agreement, the obligations of both the parties, the payment and renewal scheme, have been severed.

References 


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