Associate: Tryon Plaza Fitness Center Agreement and Release of Liability

Tryon Plaza Fitness Center


          1. As a unit owner or a designee of a unit owner at Tryon Plaza, located at 112 South Tryon Street, Charlotte, NC 28284 (the “Building”), a condominium operated by Tryon Plaza Condominium Association, Inc., a North Carolina corporation (“Association”), and managed by The Simpson Organization, Inc., a Georgia corporation, (“Property Manager”), I intend to use those certain exercise, spa, massage, and locker room facilities and that certain equipment and machinery (collectively referred to herein as, the “Exercise Equipment”) located within the fitness facility in the Building (“Fitness Facility”), with or without a personal trainer that I have retained, and to participate in certain spa and massage services and exercise activities and programs, if any (collectively, referred to herein as “Exercise Activities”), offered by Association or Property Manager (if applicable) within such Fitness Facility in accordance with this Agreement and Release of Liability (“Agreement”).

          2. I understand, acknowledge and am fully cognizant that strength and flexibility training, massage and spa services, aerobic exercise, the use of Exercise Equipment and the participation or involvement in the Exercise Activities, is a potentially hazardous activity that involves a risk of injury and expiration of life, that it is my responsibility to be familiar with the Exercise Equipment I may use and activities in which I may participate, that I must use the Fitness Facility and the Exercise Equipment in a safe, reasonable and courteous manner and consistent with posted rules and Building rules and policies, that I am voluntarily participating in the Exercise Activities and voluntarily using the Exercise Equipment and any personal trainer with full knowledge of the dangers and assumption of the risks involved and that the Fitness Facility shall remain unstaffed and will not be monitored or supervised and that neither Association nor Property Manager shall provide or be responsible for providing any supervisory or security personnel at the Fitness Facility.

          3. In consideration of permitting me the free use of the Fitness Facility, I do hereby assume and accept all risks associated with, and hereby waive, release and forever discharge Association and Property Manager, their respective successors and assigns, and their respective officers, agents, employees, representatives, executors, and all others acting on their behalf (the “Indemnified Parties”) from, any and all responsibilities, damages, claims, costs, expenses, damages or liabilities arising from any of the following: injuries or damages to me or others (including, without limitation, injuries or damages to, or caused by, my personal trainer or sustained by me, the personal trainer or others during a personal training session), or damage to any property (including, without limitation, expiration of life) in any way connected with or resulting from my participation or involvement whatsoever in any Exercise Activities (or any other activity occurring in the Fitness Facility), or my use of any Exercise Equipment or the Fitness Facility, my use of a personal trainer, the negligence in design, maintenance, instruction or warning (including, without limitation, instruction or warning from my personal trainer) with respect to any Exercise Equipment and the Fitness Facility, or the negligence or willful misconduct of users of the Fitness Facility or the Exercise Equipment or from any damage or injury caused by the negligent act or willful misconduct of the Indemnified Parties, or as a result of the Fitness Facility remaining unsupervised.

          4. I hereby, indemnify, defend and hold the Indemnified Parties harmless from, against and in respect of any and all damages, costs, expenses, liabilities, actions, causes of action, suits, claims, demands, judgments, liens, proceedings and investigations (or any appeal thereof or relative thereto or other review thereof), of any kind or nature whatsoever, arising out of, by reason of, as a result of or in connection with any of the matters covered by this Agreement and any and all liabilities, damages, losses, costs, expenses (including reasonable attorneys’ fees and expenses and disbursements of counsel), amounts of judgment, assessments, fines or penalties, and amounts paid in compromise or settlement, suffered, incurred, or sustained by the Indemnified Parties on account of, by reason of, as a result of or in connection with any of the matters covered by this Agreement.

          5. I do hereby further declare myself to be physically sound and suffering from no condition, impairment, disease, infirmity, or other illness that would prevent my participation or involvement, in any way, in Exercise Activities or use of the Exercise Equipment and acknowledge that I am hereby advised to receive a physician’s approval prior to participating in any Exercise Activities or using the Exercise Equipment.

          6. This Agreement shall be binding upon and enforceable against, and shall inure to the benefit of, the undersigned and the Indemnified Parties and their respective successors, assigns, heirs, executors, administrators, and legal representatives.

          7. If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held to be invalid or unenforceable, then in each such event the remainder of this Agreement or the application of such term or provision to any other person or any other circumstance (other than those as to which it shall be invalid or unenforceable) shall not be thereby affected, and each term and provision hereof shall remain valid and enforceable to the fullest extent permitted by law.

          8. Failure by Association or Property Manager to complain of any action, non-action or breach by me or any other person shall not constitute a waiver of Association’s or Property Manager rights hereunder. Waiver by Association or Property Manager of any right arising from any breach by me, or any other person shall not be valid unless in an authorized writing and shall not constitute a waiver of any other right arising from a subsequent breach of the same obligation or for any other default, past, present, or future.

          9. This Agreement supersedes all prior discussions and agreements among Association and/or Property Manager and me with respect to the Fitness Facility, the Exercise Equipment, and the Exercise Activities, and other matters contained herein, and this Agreement contains the sole and entire understanding among Association, Property Manager, and me with respect thereto. This Agreement shall not be modified or amended except by an instrument in writing executed by or on behalf of Association and/or Property Manager and me.

          10. I will use the Fitness Facility security card issued to me each and every time I use any portion of the Fitness Facility. I will not provide access to the Fitness Facility to any non-registered person whether an employee of a tenant in the building or not, such as family members or friends (excepting any personal trainer during any training session). I acknowledge that the Fitness Facility is provided as a courtesy to me and owners and their designees in the building exclusively. My access to the Fitness Facility may be restricted or terminated at any time by the Association or Property Manager. Notwithstanding anything herein to the contrary and without limiting the rights of the Association and/or Property Manager herein, my access to the Fitness Facility shall automatically terminate when I am no longer an owner or designee of an owner in the building. If I decide to employ the services of a personal trainer in the Fitness Facility, my personal trainer shall have no right to access the Fitness Facility until my personal trainer signs this Agreement in the space provided below. I hereby affirm that I have read and fully understand the above. I acknowledge the security access card that will be assigned to me, is for my personal access to the Fitness Facility and is non-transferable. IN WITNESS WHEREOF, the undersigned has executed and delivered this Agreement under seal, as of the day and year written below.