Sales terms and conditions:
All sales are final. Memberships are not eligible for refunds, transfers, or exchanges. We are a cashless studio and accept Visa, Discover, MasterCard, and American Express. Cut + Flow is not responsible for any bank overdraft fees.
Scheduled instructors and classes are subject to change without notice.
Liability waiver:
Cut and Flow Co. FITNESS INSTRUCTION SERVICES AGREEMENT This Master Services Agreement (“Agreement”) between CUT AND FLOW CO., a corporation formed under the laws of the State of Washington, and its employees, officers, directors, agents, contractors, and assigns (“Company”), and (“Client” or “Clients”), and successors in interest, agents, contractors, and assigns, (individually a “Party”, and collectively, “Parties”), is executed on this day of 2022, via electronic copies, in Seattle, Washington.
A. RECITALS
1. WHEREAS, Company provides fitness instruction services to its Clients (“Services”).
2. WHEREAS, Company has disclosed to Client that the Services have inherent risks for which no degree of prior planning or reasonable care can fully prevent, including health risks and other dangers to person or property, and further sets forth those risks herein.
3. WHEREAS, Client desires to receive fitness instruction and purchase therefrom the Services.
4. WHEREAS, Client has consulted with a medical professional who has certified that the Client is of sufficient physical and mental health to participate in the Company’s Services.
5. WHEREAS, both the Company and Client desire that the Services provided shall be governed by the terms set forth herein.
B. AGREEMENT NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, and other good and valuable consideration the sufficiency of which is hereby acknowledged, the Parties hereby agree to the above and the following:
1. Services provided. The Company shall provide the Services in accordance with the description and deliverables schedule as set forth and fully described in the Statement of Work, attached hereto as Exhibit A, which is incorporated and made a part of this Agreement (collectively, “Services”). The Company shall provide the Services remotely from its main location at 19122 Beardslee Blvd #101 Bothell, WA 98011 or at another location as set by the Company, it its sole discretion.
2. Client(s) Covenants. The Client shall:
A. Engage the Company as an independent contractor to perform the Services.
B. Fully disclose to Company all health (including medical conditions, food intolerances, and allergies), personal preferences, past experiences, or any other consideration that may impact the Client’s enjoyment of, or ability to participate in, the Services.
C. Comply with and fulfill the Company’s reasonable requests and instructions regarding the Client’s participation in the Services.
D. Comply with the Company's participation policies as they necessarily adjust due to outside circumstances including local, regional, national and global health crisis.
E. Provide the Company with regular feedback on Services.
F. Immediately inform Company of any change in the Client’s health that may impact their ability to participate in the Services.
G. Make timely payments to the Company of all required compensation and reimbursements set forth in this Agreement, and Exhibit A.
H. Use best efforts to take all actions and do all things necessary, proper, and advisable to consummate, make effective, and comply with all of the terms of this Agreement.
3. Representations and Warranties. The Client hereby represents and warrants each of the following:
A. That they are an adult citizen or legal resident of the United States in good health, and have received a certification from a licensed medical professional approving them for participation in the Services.
B. That entering into this Agreement does not violate the material terms of any contract to which the Client is also a party, and that all necessary actions to approve the execution, delivery, and performance of this Agreement has been, or will be taken by the Client, and this Agreement constitutes a valid and binding agreement enforceable in accordance with its terms.
4. Membership/Contract Terms and Termination. This Agreement shall become effective as of the Effective Date and, unless otherwise terminated in accordance with the provisions this Agreement., will continue for the designated contract term, or as may be extended by the Parties, provided, however that this Agreement will not last longer than one (1) year from the Effective Date. Client may terminate the agreement and incur a penalty of $250. Client may terminate agreement without penalty if client can show extreme financial hardship like a job loss, a note from a physician certifying that client is not able to utilize Company services, or if client has moved more than 25 miles away from studio location.
Either Party may also terminate this Agreement for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within seven (7) days of receipt of written notice thereof. Notwithstanding the foregoing, the termination, cancellation, or cessation of this agreement shall not end the effectiveness of Sections 3, 7, 8, 9, 11, 13, 15, 18, 20, and 21 of this Agreement, and they remain in full force. Following the termination of this Agreement for any reason, the Client shall promptly pay the Company according to the terms of this Agreement and Exhibit A, including for all Services rendered before the effective date of the termination. Client shall not be entitled to any reimbursement for Services purchased prior to the termination effective date, regardless as to whether the Client is able to participate in the Services.
A. Cancellation Policy. The Client may cancel any group class without penalty, so long as the Client provides the Company with at minimum twelve (12) hours’ notice. Cancellations provided in under the required notice period, but in advance of one (1) hour prior to the scheduled class shall result in a minimum ten-dollar ($10) cancellation fee (“Cancellation Fee:”). Cancellation fees will be added to the Client’s next invoice, and Client shall pay the fee in accordance with the payment provisions herein. Cancellations notices provided with less than an hour before the scheduled class time, and no-show appointments, shall be billed at full price, and Client shall not be entitled to any refund. Class drop-ins, and prepaid packages are non-refundable, non-transferable, non-reschedulable, and non-exchangeable. Clients who fail to attend a class drop-in or prepaid package shall not receive a refund. All enrollment fees are non-refundable.
5. Payment and Reimbursements. Client shall pay Company in accordance with the schedule of fees in Exhibit A. Payment of the Company’s flat fee for providing the Services, and enrollment fee is due prior to the initiation of any Services. Enrollment Fees are non-refundable. In addition to the flat fee, the Client shall also reimburse Company for all reasonable expenses arising from or relating to Company’s Services obtained for the Client’s benefit. For each month that a fee or reimbursement due, Company shall automatically charge Client’s credit or debit card on file. Client shall pay to Company any charges not successfully billed to a credit or debit card within fifteen (15) calendar days from the date the Company sends the Client an invoice. All payments made shall be in US Dollars via check, money order, or bank transfer. All invoices and payments under this agreement will be deemed effective when sent to the notice email or physical mailing address listed in Section 12 of this Agreement.
6. Independent Contractor, The Company and Client agree that any Services hereunder are provided on an independent contractor basis. Nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. Nothing in this Agreement shall create any obligation between either Party and a third party. As such, each Party is solely responsible for their own respective share of any applicable taxes. The Company agrees that the final deliverables supplied by the Client hereunder shall be deemed a “work-made-for-hire,” and the Client shall be deemed the sole author of the final deliverables, and any content therein, and the owner of all right, title, interest, and proceeds of every kind or nature, whether now known or hereafter devised (including, but not limited to, all copyrights and all extensions and renewals of copyrights) in and to the final deliverables, with the right to make all uses of the final deliverables throughout the universe. Notwithstanding the foregoing, if and to the extent that any final deliverable is not a “work made for hire,” the Company hereby assigns, transfers, and conveys to the Client, exclusively, irrevocably, and in perpetuity, all right, title, and interest (including all rights of copyright) in and to the final deliverables. However, under no circumstances will the Client be deemed to hold any interest in any materials created by the Company prior to its work with the Client, or created for any other third-party. Likewise, Company retains all intellectual property rights, including copyrights, trade secrets, trademark rights, and service mark rights, in any materials created by Company, and its agents, employees, or producers, but not used in the final deliverables, even if those materials were created in connection with the Services.
7. Indemnification. The Company has entered into this Agreement in reliance on information provided by the Client, including the Client’s express representations hereunder. The Client hereby forever, release, discharge, indemnifies, and hold harmless Company from and against any and all claims, damages, expenses, and costs (including reasonable attorneys’ fees) that Client or Client’s guests may suffer or incur, arising, relating, or resulting from: (i) the Services provided under this Agreement, (ii) the Client’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, (iii) the Client’s breach of any of its obligations, agreements, covenants, representations, or duties under this Agreement, and/or (iii) the Client or the Client’s guests participation in the the Services.
8. Limitation of Liability and Disclaimer. THE SERVICES ARE NOT INTENDED TO TREAT OR DIAGNOSE ANY MEDICAL CONDITION, AND ARE FOR EDUCATIONAL PURPOSES ONLY. THE COMPANY AND ITS STAFF ARE NOT LICESNED MEDICAL PROFESSIONALS OR NUTRITIONISTS. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY FOR THE MERCHANTABILITY OR FITNESS OF THE SERVICES OR ANY PROVIDED PRODUCTS AND SERVICES, INCLUDING THE FITNESS, APPROPRIATENESS, OR SAFETY OF SERVICES OR ACTIVITIES RECOMMENDED THEREIN. THE SERVICES ARE NOT PROVIDED FOR ANY PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, PROPERTY, OR SERVICES, EVEN IF THE COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY. THE COMPANY’S CUMULATIVE LIABILITY TO THE CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY THE CLIENT TO THE COMPANY FOR THE PRODUCTS, OR SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
The Parties acknowledge that the limitations set forth in this section are integral to the fees charged for access to the Services and that, were Company to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
9. Non-Disparagement. Each Party agrees to forbear from making, causing to be made, publishing, ratifying or endorsing any and all disparaging remarks, derogatory statements or comments made to any party with respect to the other Party, or its employees, agents, directors, officers, or assigns, or engage in action that could result in harm.
10. Notices. All notices, demands, and requests required or permitted to be given under the provisions of this Agreement shall be in writing and shall be deemed duly given on the date and time sent if via facsimile and electronic mail, or on the date received if sent via postal mail. The Parties may also communicate with each other informally by telephone, but such method shall not be used for any notice that has legal significance or consequences. Notices to the Parties may be given as follows: (a) If to Company: MACKENZIE BANTA Owner 19122 Beardslee Blvd Bothell, WA 98011 (206) 601-5071 mackenziebanta@gmail.com (b) If to Client, communications may be sent to the information included on Exhibit A. or any such other address as each Party may from time to time, amend, or designate for itself in writing.
11. Confidentiality. Each Party (“Receiving Party”) understands and agrees that during performance of the Services throughout the Term of this Agreement, a Receiving Party may receive Confidential Information from the other Party (“Disclosing Party”). Therefore, each Receiving Party shall for as long as is legally protectable thereafter, hold the Confidential Information in the strictest confidence, and not use the Confidential information, except for the benefit of the other Disclosing Party, nor shall it disclose the Confidential Information to any person, firm, or corporation without written authorization of the Disclosing Party. “Confidential Information” means a Party’s proprietary information, including, but not limited to, algorithms, technical data, trade secrets, know-how, client lists, user information, intellectual property, research, product plans, products, services, platform concept(s) and functionality, conversations, customer and client lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, email addresses, phone numbers, addresses, procedures, methods, or other business information disclosed to, or encountered by, the Receiving Party, or by its agents, employees, assigns, or by virtue of its relationship with the Disclosing Party, either directly or indirectly. A. Exceptions. The foregoing obligations and restrictions do not apply to that part of the Confidential Information that the Receiving Party can demonstrate: i. It was available or became generally available to the public other than as a result of a disclosure by the Receiving Party; or ii. It was available, or became available, to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party, but only if such information was not made available through a breach of confidentiality owed to the Disclosing Party, and the Receiving Party discloses its prior possession of such information within 24 hours after the disclosure of the same information by the Disclosing Party; or iii. It was requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar process) or is required by a regulatory body to make any disclosure which is prohibited or otherwise constrained by this Agreement, provided however that the Receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so disclosed.
12. Modification and Entire Agreement. No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties. This Agreement, together with the exhibits hereto, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
13. Return of Property. At the end of the Term, each Party shall return, or destroy, as applicable, retaining no copies or notes, all documents relating to the other’s business including, but not limited to, images, reports, abstracts, lists, correspondence, information, computer files, computer disks, computed back-up files, and all other materials and all copies of such material, obtained by a Party during the scope of this Agreement.
14. Assignment. The Client may not assign its rights and duties under this Agreement without the prior written consent of the Company. Any transfer in violation of this Agreement is void. All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
15. Waiver. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
16. Governing Law. This Agreement shall be governed by the laws of the State of Washington, and any action shall be brought in the County of King, Washington, where venue will be proper. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
17. Counterparts/Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
18. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
19. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. Singular terms in the Agreement also refer to the plural. The terms including, should be taken to read including, but not limited to.
20. Risks. The physical activity and equipment provided during the Services are potentially hazardous, and can cause bodily injury, permanent disability, and death. Common occurrences include: broken bones, concussions, heart attack, stroke, loss of function in one or more limbs, eye injury, and permanent nerve damage. Client hereby indemnifies and holds the Company harmless from any and all claims, damages, and costs, including reasonable attorney’s fees and costs, arising from or relating to the Client’s participation in the Services, including but not limited to any injury that the Client may sustain during or after the participation in the Services. By participating in the Services, the Client assumes all risk. Additionally, Client is responsible for the safekeeping of all personal belongings during the Client’s participation in the Services, and Company will not be responsible for any damaged, lost, missing, or stolen personal property. IN WITNESS WHEREOF, the Parties having reviewed all the terms and conditions above hereby attest to their agreement and execute this Agreement as of the date first above written.