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HOLD HARMLESS, INDEMNITY, AND ARBITRATION AGREEMENT

PLEASE READ THE FOLLOWING SECTION CAREFULLY AS IT SUBSTANTIALLY AFFECTS YOUR LEGAL RIGHTS AND YOUR ABILITY TO BRING A LAWSUIT AGAINST ABOUNADER FITNESS SOUTH, LLC AND/OR RELATED ENTITIES

This Hold Harmless, Indemnity, and Arbitration Agreement (“Agreement”) is entered into between the undersigned “Guest(s)” (or “Releasor”) and the following:

Abounader Fitness, LLC

Abounader Fitness South, LLC

Thomas James Abounader, individually

Gabrielle Leigh Abounader, individually

All related entities, secured parties, creditors, lenders, partners, employees, agents, successors, and/or assigns

Collectively referred to hereinafter the “Gym Operator” or “Releasee”.  This Agreement constituted a legally binding contract between the Guest and the Gym Operator.  

GUEST UNDERSTANDS AND AGREES THAT GUEST IS VOLUNTARILY ENGAGING IN THE USE OF A FITNESS CENTER, GYM, AND RELATED FACILITIES WHICH MAY INVOLVE USE OF WEIGHTS, MACHINES, SHOWERS, AND OTHER AMENITIES AND INVOLVES THE RISK OF SERIOUS INJURY AND/OR DEATH AND/OR PROPERTY DAMAGE.  GUEST ACKNOWLEDGES THAT ANY INJURIES THAT GUEST SUSTAINS MAY BE COMPOUNDED BY NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS. GUEST ACKNOWLEDGES THAT GUEST IS VOLUNTARILY ENGAGING IN THE USE OF THE GYM, FITNESS CENTER, SHOWERS, AND OTHER AMENITIES WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREES TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY THE NEGLIGENCE OF GYM OPERATOR OR OTHERWISE.

Guest hereby expressly RELEASES, WAIVES, AND DISCHARGES any and all claims, now known or hereafter known, against Gym Operator and each of their members, managers, operators, officials, officers, directors, employees, affiliates, agents, secured parties, successors, and/or assigns (the “Releasees”), on account of property damage, injury, or death to a Guest, their guests, family members, representatives, assigns, heirs and next of kin for any and all loss or damage of any kind or nature, whether or not caused by negligence of the Releasees, including premises liability claims and ‘failure to warn’ claims, and specifically including any claims that may arise solely from the Releasees’ own negligence. Guest covenants not to make or bring any such claim against Gym Operator, or any other Releasees, and forever releases and discharges Gym Operator and all other Releasees from liability under such claims. Guest acknowledges that the Gym/Fitness Center and related amenities may be dangerous, including latent and hidden dangerous conditions, and Guest agrees to absolve, indemnify, and hold harmless the Releasees from any claims related to any dangerous conditions, hidden or obvious, and whether or not Guest was warned of any dangerous conditions, including if the failure to warn is based on the negligence of the Releasees.  

Guest  hereby AGREES TO INDEMNIFY, SAVE AND HOLD HARMLESS the Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder, and the costs of pursuing any insurance providers, arising out of or resulting from any claim of a third party related to the Guest’s engagement in the use of the gym, fitness center, and/or related amenities. 

The Guest hereby certifies that Guest has adequate insurance to cover any injury, illness or damage that may be caused or suffered while in or around the gym, fitness center, and/or related amenities, or else agrees to bear the costs of such damage or injury without resort to the Gym Operator or other Releasee. The Guest further certifies that Guest has no medical conditions which would interfere with activities at the gym, fitness center, and/or related amenities, etc. or else assumes and agrees to bear the costs of all risks that may be created, directly or indirectly, by any such condition and expressly acknowledges such physical activities undertaken are dangerous and involve the risk of serious injury and/or death and/or property damage. The Guest further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by law and that if any provision is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

Guest further acknowledges the Guest will exercise extreme caution while at the gym, fitness center, and related amenities and herby warrants that Guest or other adult(s) will constantly supervise any children while present on the premises of the gym, fitness center, and related amenities.

Guest understands and agrees that this Agreement is made between the Guest and the Gym Operator.  Guest acknowledges that, Guest will have no legal recourse against any Gym Operator for any injury sustained or property damage suffered, regardless of the cause.  Guest acknowledges that if Guest is unwilling to accept the risk of injury or property damage without recourse to the Gym Operator, Guest should not sign this Agreement or Release and should not utilize the gym, fitness center, and/or related amenities.  

BINDING ARBITRATION

PLEASE READ THE FOLLOWING SECTION CAREFULLY AS IT SUBSTANTIALLY AFFECTS YOUR LEGAL RIGHTS AND YOUR ABILITY TO BRING A LAWSUIT AGAINST PROPERTY MANAGER OR PROPERTY OWNER

The parties to the agreement (the “Parties”) knowingly and voluntarily waive any and all rights to judicial intervention in favor of the procedures contained herein. Accordingly, any dispute, controversy or claim between the Parties (or against any representative of the other), whether related to employment, personal injury, breach of contract, tortious conduct, wrongful discharge, discrimination, harassment, property damage, or any claim in law or equity, and any dispute or claim related to the relationship or duties between the Parties, including the validity of this clause (a “Dispute”) will be resolved as set forth in this section. Each party will give written notice to the other party of any Dispute claimed by it. Promptly following delivery of such notice, a representative of each party will meet and will be obligated to attempt in good faith to resolve the Dispute. If within thirty (30) days following the receipt of notice of a Dispute, the Dispute has not been resolved, the parties agree that such Dispute will be resolved solely and exclusively by binding arbitration at the request of any party upon written notice to the other. Either party may file a written request to initiate proceedings with the American Arbitration Association (“AAA”) at any regional office of the AAA; or the International Center for Dispute Resolution (“ICDR”) within the time limits agreed to in this Arbitration Agreement.  The time limit to file is sixty (60) days from the event which forms the basis of the claim.   For the purpose of limitations, the event forming the basis of a claim is any Dispute concerning the relationship of the Parties in any way. Such arbitration proceeding will be administered by the American Arbitration Association; or the International Center for Dispute Resolution in accordance with the then current Arbitration Rules (with the exception of the Fee Schedule) and will be heard in St. Thomas, U.S. Virgin Islands; provided, however, that if any such rule has been held unconscionable or otherwise, such rule will be inapplicable to any arbitration held pursuant to this Arbitration Agreement. If for any reason AAA; and ICDR is unable or unwilling to participate, Judicial Arbitration and Mediation Services will be used in its place. The arbitration will be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16 to the exclusion of any provision of state or territorial law inconsistent therewith or which would produce a different result. A single, neutral arbitrator will determine the Dispute of the parties and render a final award in accordance with the applicable substantive law. The parties agree that all matters of substantive and procedural arbitrability shall be decided exclusively by arbitration. The Parties shall evenly split the costs and fees associated with the Arbitration, notwithstanding any Fee Schedule or guidelines for the Cost of Arbitration that may be in place by any arbitration organization.  Each Party shall be responsible for the costs of their own legal counsel.  

The Parties agree that the relationship between the Parties necessarily involves and is inextricably intertwined with interstate commerce as commonly defined and therefore 9 U.S.C. §§ 1- 16 are properly applied.  

The Parties unequivocally agree that upon submission of a written request to arbitrate the opposite party will consent in writing to arbitration within sixty (60) days.  

The Parties' agreements contained in this agreement specifically include the agreement to arbitrate the issue of arbitrability of any claim. The arbitrator shall decide all issues of arbitrability including, but not limited to, any defenses to arbitration based on waiver, delay, or like defense. The arbitrator shall also decide whether any and all conditions precedent to arbitrability have been fulfilled.

Any court having jurisdiction may enter judgment upon the award rendered by the arbitrator. The terms hereof will not limit any obligation of a party to defend, indemnify or hold harmless another party against court proceedings or other losses. The procedures specified in this section will be the sole and exclusive procedures for the resolution of Disputes between the parties arising out of or relating to this agreement and any relationship between the parties. Each party is required to continue to perform its obligations with respect to each other pending final resolution of any Dispute, unless to do so would be impossible or impracticable under the circumstances. 

In the event that any dispute arising between the parties is deemed by the arbitrator to be non-arbitrable, the parties hereby expressly waive trial by jury with respect to such claim.  The parties understand and agree that in such event, any decision regarding such dispute will be made by the court as finder of fact, and not by a jury.

Notwithstanding anything in the forgoing agreement, the Parties unequivocally agree to consent in writing to arbitrate any Disputes not later than sixty (60) days after the receipt of any request to utilize arbitration with respect to any Dispute.

This agreement is governed by and is to be construed and enforced in accordance with the laws of the United States Virgin Islands. If under such law, any portion of this agreement is at any time deemed to be in conflict with such law, rule, regulation, or ordinance, such portion shall be deemed to be modified or altered to conform thereto or, if that is not possible to be omitted from this agreement; the invalidity of any such portion shall not affect the force, effect and validity or the remaining portions hereof.  This agreement shall be construed to compel the Parties to arbitrate any disputes.

Notwithstanding any termination of the Parties’ relationship, the Parties shall remain bound by the provisions of this agreement to the extent provided herein and shall remain bound in perpetuity.