SERVICE AGREEMENT.

GYM CUBE SERVICE AGREEMENT 

Revised Date: 12/18/2023

Effective Date: 01/01/2024               

This Gym Cube Service Agreement, together with any other applicable rules as provided or made available to you from time to time (collectively, the “Agreement”), set forth the terms of use of your use and access to the time-based, unmanned gym cube (“Gym Cube”) and services provided as part of, or that are incidental or related to (as described herein and as available from time to time, the “Services”) and, to the extent permitted by applicable law. By using the Services, you are agreeing that you shall abide by and be bound by this Agreement.

  1. Who we are.  Who we are for purposes of this Agreement is the Gym Cube entity noted below. The relevant entity with which you enter into this Agreement shall be known in this Agreement as “we”, “our” “us” or “Gym Cube”.

  2. Who you are. References to “you”, “your” and similar words in this Agreement refer to the individual registering and agreeing to be bound by this Agreement and the Gym Cube Policies. You and any of your guests, or other invitees, must be at least 18 years of age or older.

  3. Authorized Users. Your use of and access to the Gym Cube and/or Services is for your personal use only, and you are not permitted to share them with any other person.

  4. Medical Disclaimer. YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THE SERVICE OR ANY OTHER EXERCISE OR WEIGHT LOSS PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, HAVE A BONE OR JOINT PROBLEM OR OTHER MEDICAL CONDITION THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY OR DIET. DO NOT USE THE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING OR FASTING, YOU SHOULD STOP IMMEDIATELY. THE SERVICE OFFERS GENERAL HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE APPLICATIONS OR AVAILABLE THROUGH ANY OF THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH- CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.

    IF YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.

    THE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND GYM CUBE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE APPLICATIONS WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

  5. Access to Gym Cube. Subject to the terms of this Agreement, we will provide you with access to and use of the Gym Cube. Your access to and use of the Gym Cube are solely for personal gym and physical fitness related activities. You will be required to download the Gym Cube App, accept the Gym Cube App ToS, accept our Privacy Policy, and signed a Liability Waiver to book access to the Gym Cube (a “Booking”).

    Your Booking is for time-based access to and use of the Gym Cube on the date and for the time set forth in the Gym Cube App, based on availability.

    Access to the Gym Cube is available 24 hours a day, 7 days a week, 365 days a year.

  6. Prohibited Uses of the Gym Cube. You shall not be permitted to: (i) use the Gym Cube in any capacity involving frequent visits by members of the public, or as a residential or living space, (ii) sell, manufacture or distribute any controlled substance, including alcoholic beverages, from the Gym Cube, or (iii) use the Gym Cube to conduct or pursue any illegal or offensive activities. You may not use any part of the Gym Cube to host an event. Additionally, you shall not be permitted to film within the Gym Cube.

  7. Changes to Terms.  The availability and scope of the Services and access to the Gym Cube, and any other provision of this Agreement are subject to change from time to time in our sole discretion. You should review and agree to the terms of this Agreement every time before you access the Gym Cube and/or use any of the Services. To the fullest extent permitted by applicable law, your continued access to the Gym Cube and/or use of any Services constitutes your full acceptance of, and agreement to be legally bound by, the terms of this Agreement, as revised.

  8. Liability Waiver. Each person accessing the Gym Cube must sign a Liability Waiver before entering or using the Gym Cube.

  9. Liability after Expiration. You will remain liable for past due amounts for use of the Gym Cube and/or Services, damages, and theft of Gym Cube fitness equipment, and we may exercise our rights to collect due payment.

  10. Gym Cube Intellectual Property; Use of the Gym Cube Name; Photos of the Gym. You may not take, copy, or use for any purpose the name “Gym Cube” or any of our other business names, trademarks, service marks, logos, trade dress, marketing material, other identifiers or other intellectual property or modified or altered versions of the same, or take, copy or use for any purpose any pictures or illustrations of any portion of the Gym.

  11. Warranty Disclaimer. The Gym and/or the Services are provided “AS IS” and on an “AS AVAILABLE BASIS”. To the extent permitted by law, Gym Cube and our affiliates, parents, and successors and each of our and their members, employees, assignees, officers, agents and directors (collectively, the “Gym Cube Parties”) (i) disclaim all warranties and terms, express or implied, with respect to the Gym and/or the Services, including warranties, terms or representations as to the availability, operation, performance and/or use of the Gym and/or the Services, including any warranties or terms of merchantability, fitness for a particular purpose, and any implied warranties, terms or indemnification arising from course of dealing, course of performance and (ii) will not be liable for any indirect, special, incidental, exemplary, punitive or consequential damages, business interruption or loss of profits, or damages for lost time, even if advised of the possibility of such damages and regardless of the form of action, whether in contract, tort, strict liability or otherwise. To the extent permitted by law, you, on your own behalf and on behalf of your guests and invitees, (i) waive any and all claims, liabilities, costs, damages, expenses and rights, including reasonable attorneys’ fees (“Claims”) against the Gym Cube Parties resulting from your use of the Gym and/or the Services and (ii) release the Gym Cube Parties from any such Claims; provided, however, that such waiver of claims shall not apply to the extent such Claims arise from the gross negligence, willful misconduct, or fraud of the Gym Cube Parties. You shall and hereby do waive your rights under the law of any jurisdiction, which provides in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or settlement with the debtor or released party.”

  12. Limitation of Liability. To the fullest extent permitted by applicable laws, the Gym Cube Parties will in no event be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages arising from or in connection with your use of the Gym Cube and/or the Services, even if any of the Gym Cube Parties have been advised of the possibility of such losses or damages.

    AS NOTED HEREIN NEITHER GYM CUBE, NOR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL GYM CUBE ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:

    ·      PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE GYM CUBE AND/OR THE SERVICES

    ·      EXCEPT FOR LIABILITY ARISING OUT OF GYM CUBE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL GYM CUBE’S AGGREGATE LIABILITY EXCEED $100.00. THIS ALLOCATION OF RISK UNDER THESE TERMS IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS SHALL BE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS SET FORTH IN THESE TERMS. THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND GYM CUBE. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY GYM CUBE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GYM CUBE. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

  13. Indemnity. You agree to indemnify, defend, and hold harmless the Gym Cube Parties from all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your breach of the terms of this Agreement, or your use of the Gym Cube and/or the Services. Gym Cube will use its reasonable best efforts to notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.

  14. Extraordinary Events. Gym Cube will not be liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform arising out of or caused by, directly or indirectly, forces that are beyond Gym Cube’s reasonable control, including, without limitation, any delays or changes in construction of, or Gym Cube’s ability to procure the Gym; acts of God; epidemics or pandemics; or public health emergencies.

  15. Other Users. We do not control and are not responsible for the actions of other individuals you encounter using the Gym Cube and/or Services; this includes other Gym Cube users and their guests at the Gym Cube. We do not endorse, support, or verify the facts, opinions, or recommendations of other Gym Cube users. If a dispute arises between Gym Cube users, we have no responsibility or obligation to participate, mediate or indemnify any party, except to the extent that such dispute is the result of Gym Cube’s gross negligence or willful misconduct.

  16. CCTV and AI Surveillance Consent. The Gym Cube, LLC may use closed-circuit television (“CCTV”) and artificial intelligence (“AI”) technologies throughout the Gym Cube to monitor the Gym Cube to deter illegal activities, enhance security, and improve the overall gym experience for security and safety purposes. These AI technologies may include facial recognition, behavioral analysis, and object recognition, among others. I understand that these systems may capture images, video recordings, and audio recordings of me and others while present in the Gym Cube. You consent to your images, video recordings, and audio recordings being recorded and processed by Gym Cube’s AI surveillance systems for these legitimate purposes.

  17. Damages and Unauthorized Entry. You understand and agree that The Gym Cube, LLC reserves the right to impose and collect for damages and theft caused to the Gym Cube, Gum Cube fitness equipment, or other related property by you or any other person using the Gym Cube with you. Additionally, you acknowledge that The Gym Cube, LLC reserves the right to collect fees for any unauthorized entry into the Gym Cube, including entry without a reservation.

    You authorize Gym Cube, LLC to charge any applicable fines to the credit card on file associated with your membership or user account. You agree to promptly pay any fines imposed, and you understand that failure to do so may result in the suspension or termination of your membership or access privileges.

  18. Survival. The provisions of this Agreement including but not limited to sections 4, 8, 9, 10, 11, 12, 13, 17, 19(a-1) shall survive the termination of this Agreement, your account, and/or your use of the Service to the extent necessary to effectuate the terms contained herein.

  19. Miscellaneous.

a. Amendment. We may amend this Agreement from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an email to the email address provided at registration, which notifies you of such changes, shall constitute reasonable means. Your continued use of the Gym Cube after we post any amendments to this Agreement will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue your access to and use of the Gym Cube and/or Services.

b. No Waiver. The failure of Gym Cube to exercise or enforce any right and/or remedy under this Agreement shall not constitute a waiver of such right and/or remedy.

c. Section Headings. Section and subsection headings are for convenience only, and not for use in interpreting this Agreement.

d. Statute of Limitations. You acknowledge and agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Gym Cube, the Services, and/or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

e. Binding on Successors. This Agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors and/or assigns of the parties, as applicable. For avoidance of doubt, you acknowledge and agree that Gym Cube is fully authorized to assign, sublicense and/or otherwise convey and transfer this Agreement and/or any of its rights under this Agreement at any time, in its sole and absolute discretion, and without compensation of any kind to you.

f. You Agree to Cooperate with Us. From time to time, we may investigate any actual, alleged, or potential violations of this Agreement and your use of the Gym Cube. You agree to cooperate fully in any of these inquiries. You waive all rights against the Gym Cube Parties and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation.

g. Governing Law. This Agreement and the relationship between you and Gym Cube shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions.

h. Agree to Arbitrate. Except as otherwise expressly set forth herein, any controversy arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction. The prevailing party shall be entitled to all costs of arbitration including, but not limited to, reasonable attorneys’ fees. The parties further agree that they shall be entitled to discovery in the same manner as though the dispute were within the jurisdiction of the State of North Carolina and that the statute of limitations shall be applied in the same manner as provided for in this Agreement. The parties agree that all arbitration shall be conducted in Pender County, North Carolina.

i. Entire Agreement. This Agreement, together with any other terms and conditions referenced herein (including without limitation the “Related Agreements” in Section k below), constitutes the entire agreement between you and Gym Cube and governs your use of the Gym, superseding any prior agreements between you and Gym Cube with respect to the Site.

j. Severability. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you. In any such case, and/or if any of the terms and conditions are held to be invalid for any reason whatsoever, this Agreement shall remain in full force and effect on its remaining terms and conditions unless and until terminated by Gym Cube. Furthermore, if any of the terms and conditions are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the intentions of the parties as reflected in the invalidated provision.

k. Related Agreements. You acknowledge that this Agreement and your use of the Gym Cube and Services is subject to the following, collectively the “Gym Cube Policies”: (i) the Gym Cube Rules (the “Rules”), which you or your guests and invitees, use the Gym Cube, (ii) Gym Cube policies as notified to you from time to time, including the Gym Cube Privacy Policy, (the “Gym Cube Privacy Policy”), (iii) the Gym Cube App End User License Agreement (the “Gym Cube App EULA”), (iv) Gym Cube Website Terms and Conditions of Use (the “Gym Cube Website TaC”), and (v) Gym Cube’s Liability Waiver. In order to use the Gym Cube, you hereby agree to these policies and terms of services and any updates thereto. We may from time-to-time update, amend or supplement our policies and terms of service. You shall be deemed to have accepted such updates, amendments, or supplements by continued use of the Gym Cube and/or Services. 

j. Contact; Notices and Questions. If you have any questions regarding this Agreement or your use of the Gym Cube, please contact us by email at support@thegymcube.com, or by mail at The Gym Cube, LLC, 146 Heron Cove Rd, Hampstead, NC 28443. Except as otherwise specified elsewhere in this Agreement, notices to Gym Cube may be given at the foregoing email and postal addresses, and notices to you may be given at the address provided to us at the time of registration and/or the purchase of Services from Gym Cube.

—- End of Service Agreement