THIS FACILITIES USE AGREEMENT (hereinafter referred to as the “Agreement”) by and between BRO d/b/a PRIMETIME PERSONAL TRAINING, a Missouri corporation (hereinafter referred to as “PrimeTime”), and you (hereinafter referred to as “Trainer”).
- PrimeTime owns and operates a fitness and training facility (hereinafter referred to as the “Training Facility”), with an address of located at 4039 N. St Peters Parkway, St Peters MO 63304. The Training Facility consists of certain tangible personal property, including, but not limited to, weights, treadmills, elliptical machines, universal fitness machines, and other exercise and weight training equipment (collectively, the “Equipment”).
- Trainer desires to use the Training Facility to provide personal training and fitness servicesand PrimeTime desires to permit Trainer to use the Training Facility for the conduct of such services, all subject to the terms and conditions contained herein.
NOW THEREFORE in consideration of the mutual promises and agreements set forth herein, the parties hereto agree as follows:
PrimeTime hereby grants a non-exclusive license to Trainer to use the Training Facility on the terms and conditions set forth herein, specifically Section 5 hereof. Trainer’s use of the Training Facility shall include the right to use the Equipment, the common areas in and around the Training Facility, and parking areas that are located in front of the Training Facility (collectively the “Premises”). Notwithstanding the foregoing, Trainer shall not be entitled to use PrimeTime’s offices at the Premises designated as “Owner’s Office.”
2. TERM OF USE.
Trainer shall be permitted to use the Premises for the times scheduled through the Scheduling Software (as hereinafter defined). PrimeTime shall make the Premises available to Trainer at the times scheduled in the Scheduling Software. Time shall be of the essence for this Agreement, and the period of time granted shall not be extended for occupancy or use of the Premises without written permission from PrimeTime.
Trainer shall use the Premises only for the purposes set forth herein and for no other purposes. The Premises shall be occupied and used for the conduct of providing personal training or fitness training related services for Trainer’s clients. Trainer shall use the Premises only during those times for which Trainer has made a booking through the Scheduling Software (as hereinafter defined). Trainer shall use and occupy the Premises in accordance with all applicable governmental laws and regulations. Trainer shall not use or allow the Premises to be used for any unlawful purpose nor for any purpose other than specified herein.
4. MANNER SERVICES ARE PERFORMED.
Each party to this Agreement will carry out their respective responsibilities and obligations at their discretion and in good faith. The PrimeTime will not instruct the Trainer on how to perform the Trainer’s services and duties. The Trainer shall provide services under this Agreement in the manner Trainer deems fit, provided that Trainer satisfies his obligations to PrimeTime.
5. SCHEDULING OF USE; CLIENT SESSIONS.
- has developed and owns scheduling software (the “Scheduling Software”) to coordinate and manage the use of the Premises. Trainer agrees to register as a user of the Scheduling Software and to utilize the Scheduling Software to reserve the right to use the Premises for personal training sessions with Trainer’s clients (each a “Client Session”).
- Upon registering with the Scheduling Software, an RFID key card will be activated for entry to the Premises. The RFID key card will only grant Trainer access to the Premises for any Client Session paid for and scheduled by the Trainer.
- Guaranteed Minimum Fee. Trainer shall pay to PrimeTime without demand, deduction, or offset a guaranteed monthly minimum fixed fee for the Premises of Fifty and NO/100 Dollars ($50.00) (the “Base Fee”). The Base Fee shall be due in advance on the first day of each calendar month during the Term and shall be paid through the Scheduling Software or at such other place designated by written notice from PrimeTime to Trainer. Trainer shall have the right to pay Base Fee not later than five (5) days after the date due, without penalty. This fee is subject to change upon 30 days notice from PrimeTime, but no more than once annually.
- Additional Fees. In addition to the Base Fee, Trainer shall cause to be paid to PrimeTime the following additional fee:
- Purchase of Credits. Prior to scheduling any Client Session, Trainer shall purchase from PrimeTime credits to use towards Client Sessions (each a “Credit”). Trainer shall pay Twenty and NO/100 Dollars ($20.00) for each Credit. Credits are refundable provided that Trainer has properly terminated the Facilities Use Agreement in accordance with Section 12.
- Equipment Fee. For each Client Session of no more than two (2) individuals, Trainer shall submit to PrimeTime, through the Scheduling Software, one (1) Credit per hour (60 minutes) of use. For each Client Session of no more than thirty (30) individuals, Trainer shall submit to PrimeTime, through the Scheduling Software, six (6) Credits per hour (60 minutes) of use.
- Cancellation and Refunds. Credits shall be retained by PrimeTime for any scheduled Client Session, regardless of whether the client appeared for the session, unless 24 hours’ advance notice of cancellation was given by Trainer.
The additional fees are subject to change upon 30 days from PrimeTime, but no more than once annually.
- RFID key cards. Additional cards may be purchased at $10 per card. Lost key cards will be charged to the Trainer at $10 per key card.
7. ADDITIONAL SERVICES.
In addition to the payment of Base Fee and the Equipment Fee, and as additional consideration for Trainer’s use of the Premises (subject to the terms hereof) during the Term of this Agreement, Trainer shall clean up after his/her self during and after using the Training Facility, including, but not limited to, cleaning personal items, re-racking weighted implements, realigning benches and other equipment, and sanitizing used equipment.
8. TRAINER’S RIGHTS & RESPONSIBILITIES.
In addition to any other responsibilities specified herein, in conducting his or her personal training business on the Premises, Trainer shall provide all resources necessary to the operation of a personal training business including, but not limited to, Obtaining necessary licensing and complying with all applicable Missouri state, county and municipal rules and regulations.
9. CORPORATION’S OBLIGATIONS AND RESPONSIBILITIES.
In addition to the other obligations specified herein, PrimeTime shall have the following responsibilities and duties:
- Promotion. PrimeTime shall use reasonable efforts to promote Trainer’s business at the Premises.
- Utilities/Maintenance. PrimeTime, at its expense and at all times, shall provide all utilities and services necessary for a personal training business upon the Premises, including, but not limited to: electricity, gas, water and other utilities. PrimeTime shall also keep all Equipment in good working order.
10. MAINTENANCE, REPAIRS AND ALTERATIONS.
PrimeTime does not warrant either expressly or impliedly the condition or fitness of the Premises except as herein set forth. PrimeTime shall keep and maintain the Premises in good repair, including all building systems of the Training Facility. Trainer shall not allow any waste or misuse of the utilities or building systems serving the Premises and Trainer shall pay for all damages to the Premises caused by any waste, misuse or negligence with respect to the same by Trainer or Trainer’s employees, agents or invitees, to the extent not covered by Trainer’s insurance. Upon the termination of this Agreement, Trainer shall return the RFID key cards to PrimeTime and the Premises shall be in the same condition as of the Effective Date, reasonable wear and tear excepted. Trainer may not make any alterations to the Premises.
11. SUBLETTING, ASSIGNING, INVITEES.
Except as provided herein, Trainer shall not assign his rights in this Agreement nor allow the Premises to be used or occupied by any other person or for any other use than herein specified, without the prior written consent of PrimeTime. Any person or client that Trainer invites to the Premises must complete and agree to a Participant Agreement, Waiver and Release.
This Agreement shall be in full force and effect on a month-to-month basis and until such time that either party terminates this Agreement in accordance with the provisions below.
- Termination by PrimeTime. Failure by Trainer to pay the Base Fee in a timely manner shall be considered termination of this Agreement. Additionally, in the event Trainer commits an act or acts of intentional, reckless or negligent misconduct, then PrimeTime may terminate this Agreement immediately. Upon termination by PrimeTime pursuant to this section, Trainer shall forfeit all unused Credits.
- Voluntary Termination by Either Party. This Agreement may be voluntarily terminated by either party by giving not less than thirty (30) days prior written notice specifying the effective date of termination of this Agreement (“Termination Date”). Upon such voluntary termination with proper notice, Trainer shall receive a refund for any unused Credits.
CORPORATION’S LIMIT TO LIABILITY/HOLD HARMLESS.
- PrimeTime shall not be liable to Trainer, or his guests or invitees, for any damages to the Premises, nor for any damages to Trainer on or about the Premises, nor for any other damages arising from the action or negligence of PrimeTime. Trainer hereby releases, discharges and shall indemnify, hold harmless and defend PrimeTime, at Trainer’s sole cost and expense, from all losses, claims, liability, damages, and expenses (including reasonable attorney’s fees) for any damage or injury to person or property of the parties hereto or of third persons, including Trainer’s customers and invitees, caused by Trainer’s use or occupancy of the Premises for the purposes provided herein, Trainer’s breach of any covenant under this Agreement, or Trainer’s use of any equipment, facilities or property in, on, or adjacent to the Premises.
- In the event any suit shall be instituted against PrimeTime by any third person for which Trainer is hereby indemnifying and holding PrimeTime harmless, Trainer shall defend such suit at Trainer’s sole cost and expense with counsel reasonably satisfactory to PrimeTime or, in PrimeTime’s discretion, PrimeTime may elect to defend such suit in which event Trainer shall pay PrimeTime, as additional rent, PrimeTime’s cost of such defense.
- Notwithstanding anything to the contrary contained herein, the foregoing provision shall not be construed to make Trainer liable for loss, damage, liability or expense resulting from injuries caused by the negligence of or willful acts of PrimeTime, or any officer, partner, contractor, licensee, agent servant employee, guest, invitee or visitor of PrimeTime.
During the term of this Agreement, Trainer, at its expense, agrees to provide and carry all necessary insurance, including risk property insurance covering Trainer’s property located within the Premises, comprehensive general liability insurance, and liability insurance against damage to property on the premises. Trainer shall also maintain its own workers compensation insurance.
All notices that are required to be given hereunder shall be in writing and delivered by United States registered or certified mail, postage prepaid, addressed to PrimeTime hereto at the address below:
Either party may designate a different address by giving notice to the other party of same at the address set forth above.
Should any provision of this Agreement be unenforceable, it shall be severable from this Agreement; and this Agreement shall remain in full force and effect and be binding upon the parties hereto as though said provision had not been included.
- All of the covenants of Trainer hereunder shall be deemed and construed to be “conditions” as well as “covenants” as though both words were used in each separate instance.
- The paragraph headings appearing in this Agreement are inserted only as a matter of convenience, and in no way define or limit the scope of any paragraph.
- This Agreement shall be governed by the laws of the State of Missouri.
- All the terms of this Agreement shall extend to and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.
- Whenever the approval or consent of PrimeTime or Trainer is required hereunder, said consent shall not be unreasonably withheld or delayed.
- This Agreement may be assigned by PrimeTime. Trainer shall not be entitled to assign this Agreement without the advance, written permission of PrimeTime.
18. INDEPENDENT CONTRACTOR.
Trainer is an independent contractor and shall retain control over its own employees and agents. Nothing in this Agreement shall be deemed to create a relationship of principal and agent, limited or general partner, employer and employee, joint venture or any association between or among the parties hereto, and neither party shall have the power to obligate or bind the other party in any manner, except to the extent expressly provided herein.
19. PRIMETIME’S REPRESENTATIONS AND WARRANTIES.
PrimeTime represents and warrants that it has full right and lawful authority to enter into this Agreement with Trainer as of the date hereof and such action has been duly authorized, that to the best of PrimeTime’s knowledge, the Premises are in compliance with all applicable federal, state and local laws and ordinances relating thereto, as of the date hereof.
20. TRAINER’S REPRESENTATIONS AND WARRANTIES.
Trainer represents and warrants that is has the full right and lawful authority to enter into this Agreement with PrimeTime as of the date hereof and such action has been duly authorized.
IN WITNESS WHEREOF, PrimeTime and Trainer have respectively agreed to this Agreement.