The following terms are in addition to the terms contained in your Membership Agreement, if applicable, or any other written agreements between you and ATOMIC Total Fitness, (whereas these terms shall stand alone in absence of same). Should conflicting terms between the below Terms and/or your Agreement exist, ATOMIC Total Fitness reserves the right to determine the prevailing terms.

TERMS & CONDITIONS

Electronic transmission of these terms and conditions to you constitutes your tacit acceptance of all terms and conditions (“Terms and Conditions”) outlined herein. The Terms and Conditions contained herein apply to your current and future purchases from ATOMIC Total Fitness. Should these Terms and Conditions change, ATOMIC Total Fitness reserves the right to determine the prevailing terms for future purchases and/or auto-renewals.

ATOMIC Total Fitness may make changes to its Terms and Conditions from time to time (“Changes”). Communication of same to you, as well as important business information (“Information”), will be done via the email address you provided to ATOMIC Total Fitness. You thusly agree not to unsubscribe or opt out from emails from ATOMIC Total Fitness, and will ensure that emails from ATOMIC Total Fitness are not being marked as spam by your email service. (i.e. By virtue of ATOMIC Total Fitness attempting to email you Information or Changes, whether received by you or not, ATOMIC Total Fitness has satisfied all of its responsibilities regarding same.)

To keep our provision of membership fair to all members and clients, there will be no changes to our terms and conditions on a case-by-case basis, regardless of circumstance. There are no refunds, entire or prorated. For our members’ and clients’ security, ATOMIC Total Fitness’ premises at 120 East 57th Street (“Club”), is under audio-visual security surveillance. You hereby consent to security surveillance while at the Club.

Under no circumstance shall any session, class, service, package or membership currently offered or sold at ATOMIC Total Fitness, or one that is yet to be offered or sold at ATOMIC Total Fitness, retain its monetary value, usability, or any utility value whatsoever beyond thirty (30) days after the termination date or expiration date of same. If no such termination date or expiration date is provided, the default termination or expiration date shall be thirty (30) days from the date of purchase.

All Memberships, Contracts, and Packages automatically renew/replenish for our customers’ convenience.
Any sessions or services that a Member may be entitled to during a month or term of Membership, shall never “roll over” to the following month or term, or accrue in way, under any circumstance.

Clients and Members must reserve their session(s) at least twenty-four (24) hours, or one full business day (weekday), in advance. All customers must reschedule or cancel any session, service, or appointment in writing via email, and notices must be received by ATOMIC Total Fitness, at least twenty-four (24) hours prior to the reserved session, service or appointment. Any customer who does not comply with this policy willingly sacrifices the session, service, or appointment, and any value thereof, fully and wholly.

Memberships, Packages, Sessions and Service Agreements (e.g. ALL “MEMBERSHIPS”) are billed as automatically recurring payments, billed monthly, or approximately every thirty (30) days from initial purchase date, for one year or month-to-month. Memberships will automatically renew after their term, for one month or one year, or any other agreed upon term, indefinitely and for the same term for perpetuity. Should a client opt out or cancel auto-renewal, and later re-join, re-purchase or re-instate his/her account, a nominal reinstatement fee of $50.00 shall apply. Memberships may not be cancelled mid-term (e.g. during the year or mid-month).

If any required payment due under any purchase and/or purchase agreement or contract with ATOMIC Total Fitness is not paid when due, or if an event of default occurs, then the entire amount due under same, and any accrued interest thereon shall become immediately due and payable. Client shall be liable for any and all attorney fees and associated costs incurred by ATOMIC Total Fitness in the effort to collect monies due in the event of breach or default of any purchase and/or purchase agreement or contract. The parties hereto agree that all actions or proceedings arising in connection with any purchase and/or purchase agreement or contract shall be tried and litigated exclusively in New York County courts in the State of New York. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of any purchase agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine, or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the New York County Courts located in the State of New York shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or relating to any purchase and/or purchase agreement or contract. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.

Client understands that any purchase and/or purchase agreement or contract is a purchase of membership, not professional services, and is not subject to Article 30 of New York’s General Business Law regarding service contracts. Client further understands that he/she will not be able to void any purchase and/or purchase agreement or contract based on Article 30 of New York’s General Business Law. If any part of any purchase and/or purchase agreement or contract is deemed to be void or unenforceable, all other parts shall be given full force and effect. To cancel your Membership’s auto-renewal, you must notify ATOMIC Total Fitness in writing via email at least (10) days prior to your renewal date.

CANCELLATION, RESCHEDULING, AND NO-SHOW POLICY

A minimum of twenty-four (24) hours notice is required to reschedule or cancel any ATOMIC Total Fitness appointment, session, class, or any other service offering. It is our desire to provide excellent service to all of our clients, thusly, if a client is more than ten minutes late to a scheduled ATOMIC Total Fitness appointment, session, class, or any other service offering; or is not present at all for the scheduled session, class, or any other service offering (the two scenarios collectively referred to here as a “no-show”); the client acknowledges forfeiture of said appointment, session, class, or any other service, and no credit or refund shall be issued.

ATOMIC Total Fitness does not guarantee session times or appointments with specific trainers. To reserve a specific trainer please select and purchase ATF Master Training. For any and all schedule changes you will be notified via email.
ATOMIC Total Fitness reserves the right, in its sole discretion, to alter or remove altogether the scheduled sessions or appointments of a client with more than two (2) consecutive “no-shows.”

SCHEDULE OF MEMBERSHIP FEES

ATF Introductory Offer is open to first-time clients only and expires sixty (60) days from client’s first session.

• Foundations Training Sessions: $808 for 8 and $1535 for 16 sessions for a period of one package.

• ATF Training Sessions: $808 for 8 and $1535 for 16 for a period of one year, auto-renewing for perpetuity.

• ATF Master Training: $1198.80 for 8 and $2280 for 16 sessions, or as otherwise stipulated, pursuant to the Membership Agreement, for a period of one year; auto-renewing for perpetuity.

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SCHEDULE OF FEES FOR YOGA, & CLASSES

1. Single Class: $25 for one (1) session.
2. Ten Session Class Pack: $200 for ten (10) sessions, auto-renewing for perpetuity.
3. Yoga Private Session (Members Only): $135 for one (1) session.
4. Yoga Eight Session Pack (Members Only): $1078.92 for eight (8) sessions, auto-renewing for perpetuity.

GENERAL TERMS

These Terms & Conditions, and Rider A (“Confidentiality Agreement”) below, apply to all purchasers (“Member”) of any type of ATOMIC Total Fitness (“Club”) individual class, session(s), monthly membership, or package (“Memberships”).
a. Member’s Obligation. Member shall not be relieved of the obligation to make payments agreed to, and no deduction from any payment shall be made because of Member’s failure to use the membership, individual class, session, package or Memberships of the Club. Payments are for the services and/or period, and at the rate as agreed to and set forth above and/or on www.ATOMICtotalfitness.com and/or any other Member agreement.
b. Form of Payment. All payments are payable by electronic funds transfer from the Member’s credit card account or debit card account.
Member must authorize payments to be made through a third party administered electronic funds transfer system. Transfer of fees will take place automatically as dictated by the schedule of Member’s agreement.
Member willingly agrees to not dispute or charge-back any amounts through member’s card issuer or bank, regardless of member’s rights and privileges with member’s card issuer or bank. Any claim of disputed charges by member against Club must be resolved through binding arbitration, at expense of Member.
Member agrees that under absolutely no circumstances may any amount billed by ATOMIC Total Fitness to member be disputed through any claim or action against ATOMIC Total Fitness if member has not first contacted ATOMIC Total Fitness in writing via registered USPS mail, at 120 East 57th Street, Floor 4, New York, NY 10022, within twenty (20) days of the billing date in question.
c. Returned Payment Penalty. Member will automatically be charged any bank fee imposed on the Club, plus a processing fee of $50 per card decline or transaction failure, for any returned payment item due to closed accounts, insufficient funds or similar issue. On such occasion, the Club retains the right to collect the current and past due balances in any subsequent month.
d. Revocation of Membership. The Club (in its sole discretion) may revoke Member’s membership and/or session/class credits, at any time and without refund, in the event that Member engages in behavior that is unsafe or objectionable to other members or staff, or for reasons of nuisance, disturbance to other members or staff, moral turpitude or fraud, or personal hygiene and attire. The Club also reserves the right to require Member to leave for the day if, in the Club’s reasonable judgment, Member poses a health or safety risk to Member or others, or is disturbing or likely to disturb other members or staff.

MEMBER RISK

a. Medical Recommendations. Member should consult with his or her physician or have a physical examination before using any of the Club’s facilities or enrolling in any of the Club’s classes or sessions especially if Member is elderly, pregnant, has a history of heart disease, high blood pressure or other chronic illness, or is unaccustomed to physical exertion or has other physical limitations.

b. Member Conduct. Member shall not use any Club facility, service or equipment in such a way as to endanger the health or safety of Member or others. Member shall be responsible for any property damage or personal injury caused by Member or his or her guests. Member agrees not to violate any laws while in a Club.

c. Activity Risk. Any strenuous athletic or physical activity involves certain risks including sever injury and death. Member and his or her guests assume the risk of any and all accidents, injuries or death that may be sustained by, or in connection with, use of Club facilities. The Club cannot guarantee that any facility or equipment is free of risk. Member agrees to use care in the use of Club facilities, equipment and services and to protect against accidents by other members.

d. Medical Disclaimer. Member has been informed and acknowledges that the Club makes no claims as to medical or fitness results that can or may be obtained through use of the Club’s facilities, equipment or services. The Club has neither suggested nor will suggest any medical treatment to Member. Only licensed medical professionals are qualified to give medical advice.

e. Member’s Health Warranty. Member represents that: (i) there are no medical or physical conditions that would preclude his or her use of the Club’s facilities; (ii) he or she has not been instructed by any physician not to use Club; and (iii) he or she is in good health and has no disability, impairment, injury, disease or ailment preventing him or her from engaging in active or passive exercise or which could cause increased risk of injury or adverse health consequences as a result of exercise.

f. Member Release and Indemnity. By completing a purchase with Club, and/or by attending sessions or classes; and/or by receiving exercise instruction; and/or by receiving nutrition counseling; and/or by receiving medical consultations and treatments; and/or by or receiving physical therapy; and/or by or receiving massage; and/or by otherwise participating in any Club activity, event, or service, Member hereby acknowledges and agrees that there are inherent risks in exercise, medical treatment, nutritional counseling, massage, physical therapy, and usage of the facility, up to and including severe physical injury and death. Member fully indemnifies, releases, and holds harmless ATOMIC Total Fitness and its shareholders, affiliates, agents, contractors and employees from any claim or cause of action against ATOMIC Total Fitness and/or its shareholders, affiliates, agents, contractors and employees. Member assumes full responsibility for his or her use of the Club’s facilities and services and shall indemnify, release, and hold harmless ATOMIC Total Fitness and its shareholders, affiliates, contractors, agents and employees.

Member further agrees that neither Member, Member’s heirs, assigns or legal representatives will sue or make any other claims of any kind whatsoever against ATOMIC Total Fitness Inc. or its members, shareholders, officers, employees, contractors, or representatives for any personal injury, property damage/loss, or wrongful death, whether caused by negligence or otherwise. Member further agrees that neither Member, Member’s heirs, assigns or legal representatives will sue or make any other claims of any kind whatsoever against ATOMIC Total Fitness Inc. or its members, shareholders, officers, employees, contractors, or representatives for any cause other than personal injury, property damage/loss, or wrongful death, whether caused by negligence or otherwise.

g. Prevailing Party. In the event Member commences an action against the Club or its shareholders, affiliates, agents or employees and fails to obtain judgment or partial judgment in Member’s favor, Member shall be liable to the Club for all costs and expenses associated with Club’s defense of the action or any claims on which Member did not prevail, including attorney’s fees and costs.

h. Costs of Collection. Member agrees to pay all costs plus reasonable attorney’s and collection fees in connection with Club’s (or Club’s designee’s) collection of any amounts owed by Member in addition to a $5,000 collection penalty.

i. Loss of Property. Member is urged not to bring valuables onto Club premises and to keep valuables with him or her at all times. The Club shall not be liable for the disappearance, loss or theft of, or damage to, personal property (including money, negotiable securities and jewelry).

j. Nonjudicial Claims or Complaints. Member agrees that under no circumstance may he/she bring a nonjudicial claim or complaint against Club, and willingly forfeits any type of right to bring a nonjudicial claim or complaint against Club, with any nonjudicial local or national entity (e.g. Department of Consumer Affairs or Better Business Bureau).

General Provisions

a. Members and Guests Rules. Member and his or her guests shall abide by the Club’s rules and regulations and any amendments and/or modifications thereto.

b. Dress Code. Proper athletic attire is required. The Club reserves the right to make the final determination in its sole discretion with regard to appropriate attire.

c. Independent Contractors. From time to time, the Club may make the services of independent contractors available to Member and his or her guests. The Club does not warrant or guarantee the quality of these services.

d. Special Events. The Club may from time to time reserve the use of its facilities for special events, competitions and private functions. Such Special Events shall not affect any Member obligations nor may they be construed as breach (e.g. as a disruption of and/or failure to provide services).

e. Change in Operating Hours/Class or Session Hours/Temporary Closing of Club. As a result of repair, maintenance, Special Events, legal matters, or act of God, the Club may be required to restrict the use or temporarily close its facilities or activities from time to time. There will be no reduction or suspension of membership fees during such time when the above-mentioned occurs. Hours of operation, and class and session schedules, may be amended from time to time, and certain facilities, services or programs may be added or eliminated from time to time, at the Club’s discretion.

f. Children’s Use. All children under 18 years of age must be accompanied by a parent at all times within the Club unless they are in a supervised activity. Children under age 13 are not permitted in any Club facility without the express permission of Club management.

Miscellaneous

a. Non-Discrimination. The Club will not discriminate against any person because of gender, race, creed, age, color, sexual orientation, national origin or ancestry in considering applications for, or have taken other action in connection with, membership in the Club.

b. Waiver. It is understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise or the exercise of any right, power or privilege hereunder.

c. Enforcement. If any provision of Member’s contract is held to be invalid or unenforceable by a court of competent jurisdiction, such holding shall not affect the validity or enforceability of any other provisions of this contract, which shall remain in full force and effect, and the provisions held invalid or unenforceable shall be deemed modified so as to give such provisions the maximum effect permitted by applicable law.

d. Governing Law; Jurisdiction. This agreement shall be governed in all respects by the substantive law of the state of New York, without regard to its conflict of law principles. Member hereby unconditionally consents to submit to the jurisdiction of the federal and state courts sitting in the State of New York for any actions, suits or proceedings arising out of or relating to this agreement.

e. Entire Agreement. This contract and all rules and regulations of ATOMIC Total Fitness, as revised from time to time, constitute the entire and exclusive agreement between the parties, and supersede all prior promises, representations, understandings and/or agreements relating to this membership. This agreement may be modified only by an instrument in writing and only by ATOMIC Total Fitness.

CONFIDENTIALITY AGREEMENT

“Member,” as defined above, and herein identified below as “Recipient,” voluntarily and willfully wholly agrees to the following in regard to keeping confidential “Confidential Information,” as delineated and set forth as follows:
1. The Confidential Information to be disclosed can be described as and includes:
Any communication – spoken, written, or electronically transmitted – by ATOMIC Total Fitness and Adam Shuty (collectively referred to herein as “Company), and its employees, contractors, staff, and officers (collectively referred to herein as “Staff”) in relation to personal or business affairs, including but not limited to any business or personal information Recipient may acquire about company DIRECTLY OR INDIRECTLY (e.g. overheard conversations, emails, an any other form of communication), including but not limited to business methods, intellectual property, trade methods, other invention description(s), technical and business information relating to proprietary ideas and inventions, ideas, patentable ideas, trade secrets, drawings and/or illustrations, existing and/or contemplated products and services, research and development, financial information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure.
2. This Agreement imposes no obligation upon Recipient with respect to any Confidential Information that becomes a matter of public knowledge through no fault of Recipient. However (a) any information received by Recipient from a third party, owing or not owing a duty of confidentiality to the Discloser, that can be construed as Confidential Information, and (b) any information that is independently derived by Recipient through Recipient’s relationship with Company or Staff, shall be considered Confidential Information and thusly subject to the binding confidentiality terms of this agreement.
4. This Agreement states the entire agreement between the parties concerning the disclosure of Confidential Information. Any addition or modification to this Agreement must be made in writing and signed by the parties.
5. Company fully recognizes Recipient’s right to free speech, however Recipient willingly agrees not to author or post, or have posted on his/her behalf, any content, reviews, or ratings that in any way negatively depict Company or Staff on any website or mobile platform, either currently in existence, or yet to be created.
6. Recipient acknowledges that any breach of this agreement can be unquantifiably injurious to Company, Staff, and any other current or future business ventures.
7. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in New York County courts in the State of New York. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine, or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the New York County Courts located in the State of New York shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or relating to this Agreement. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. If Company must bring legal action to enforce any part of this Agreement, it shall have the right to collect from the other party (Recipient) its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
8. If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Agreement as a whole.
9. There is NO TERM of this Agreement; it shall survive in perpetuity. This Agreement shall remain binding despite any temporary or permanent changes in the relationship between the Recipient and Company.