LAST UPDATED FEBRUARY 1, 2025
Participation in any Team New York Aquatics, Inc. (“TNYA”) activity is conditional upon your acceptance of the following Participation Agreement and Liability Waiver, promulgated by the Board of Directors pursuant to its authority under TNYA Bylaw 2.1(g). Please read the below terms carefully.
1. Definitions
In this Agreement, unless the context indicates otherwise (and without respect to capitalization):
An “Activity” means any TNYA-sanctioned or approved activity, including but not limited to all Practices, learn-to-swim programs, camps, clinics, social events, happy hours, dinners, and competitions that TNYA either sanctions, approves, or participates in. The “Activities” are every TNYA Activity taken together.
The “Agreement” is this Participation Agreement and Liability Waiver;
The “athletic environment” has the meaning assigned to it by the presently operative version of the TNYA Anti-Harassment and Anti-Discrimination policy.
The “Board” is the Board of Directors of TNYA;
A “business day” is a weekday that is not a Federal public holiday;
A “day” is a calendar day, inclusive of weekends and public holidays;
To “dive” is to enter the water using any part of the body other than the feet;
“NGBs” means “National Governing Bodies”, which in turn means U.S. Masters Swimming Inc., U.S.A. Water Polo Inc., or U.S.A. Artistic Swimming Inc.; the sports governed by an NGB are, for U.S.A. Artistic Swimming, artistic swimming; for diving, U.S.A. Diving; for swimming, U.S. Masters Swimming; for U.S.A. Water Polo, water polo;
“N-PCL” means the New York Not-for-Profit Corporations Law;
“Pass” means any purchase of a one-off pricing option in Mindbody used for a regular TNYA practice or class, including a pay-per-practice pass, or 5x or 10x practice pass bundle;
“Practice” (referred to as a “Class” on Mindbody) is a regularly scheduled swimming, low pressure zone, adult learn-to-swim, water polo, artistic swimming, or diving workout advertised as a practice on our Mindbody schedule;
“Subscription” means any purchase of a contract on Mindbody that permits attendance at regularly occurring classes or practices on a weekly or monthly basis (but does not include payment of the TNYA membership fee);
“Special Event Admission” means any purchase of a pass permitting participation in a TNYA activity for which payment is required other than a regular recurring class or practice, including but not limited to registration for Swim Camp, Swim Camp accommodation, tickets for the TNYA banquet or fundraiser, or One Hour Swim registration;
“TNYA” or “the Corporation” means Team New York Aquatics Inc.;
“You” are the person agreeing to these terms by taking part in any TNYA Activity.
2. General Terms
(a) Age and Intent to be Legally Bound. Membership in TNYA is limited to persons aged 18 years and older. By agreeing to this Agreement you represent that you are at least 18 years old and agree to be legally bound by all of the terms and conditions set forth herein.
(b) Code of Conduct and Other Policies. You agree to comply at all times with the TNYA Code of Conduct, the TNYA Anti-Harassment and Anti-Discrimination Policy, and the TNYA Bylaws and any policies adopted for TNYA by the Board (together, “the Policies”).
You agree that you will familiarize yourself with the Policies and comply with the Policies at all times while within the athletic environment. The “athletic environment” is a term of art that covers all of TNYA’s operations, including but extending beyond the Activities.
You understand and agree that your failure to comply with the Policies may result in you being barred from participation of some or all Activities either temporarily or permanently and/or temporary suspension or termination of your membership or the imposition of a period of probation. If you are prevented from participating in any Activities by reason of such a bar on participation or suspension or termination of membership, you agree that you forfeit the value of any membership, subscription, or account credit you may have at the time of your expulsion or suspension.
You agree not to participate or attempt to participate in any Activity if barred from doing so pursuant to the TNYA Bylaws (available on our Policies page).
(c) Pool Rules. You agree to abide by all pool rules posted at any practice and meet facilities. TNYA will use reasonable efforts to collect such rules on our pools page, but makes no guarantee that the information provided is up to date or accurate. You acknowledge that it is your responsibility to review and follow pool rules posted on the websites of the respective pools and posted at the pools themselves.
(d) No Assignment. All memberships, membership payments, Special Event Attendance, subscriptions and passes are for the exclusive use of the person who purchased it and may not be assigned to any other person.
(e) Modification of Agreement. TNYA may change, suspend, or discontinue any product or service TNYA provides, or any part of them, at any time without notice. TNYA may amend any part of this Agreement at its sole discretion by posting the revised Agreement on the tnya.org website. Your continued participation in the Activities after the effective date of the revised Agreement constitutes your acceptance of the revised Agreement.
(f) Alteration of Membership and Activity Fees on Notice. You agree that TNYA may increase or decrease the fee payable by members either for membership or for any subscription or practice pass prospectively, without interrupting your auto-renewal such that your subscription or membership will automatically renew at the higher rate when it is next due to renew unless you terminate the subscription or membership in accordance with this Agreement. TNYA shall communicate such fee increases to you via the email you used to register with us not less than 14 days before such increases take effect.
3. Health Risks and Liability Waiver
(a) Physical Fitness. You hereby certify and represent that (i) you are in good health and in proper physical condition to participate in any Activity in which you take part; and (ii) you have not been advised of any medical conditions that would impair your ability to safely participate in such an Activity. You agree that it is your sole responsibility to determine whether you are sufficiently fit and healthy enough to participate in the Activities.
(b) Minimum Fitness Requirements. You agree that unless TNYA expressly otherwise provides in writing on this website or on the Mindbody system, all Practices and all Activities incorporating aquatics require as a condition of entry that you be able to swim at least 100 yards in an indoor swimming pool in 2 minutes or less without undue physical exertion. TNYA may provide that a particular Activity requires more or less aquatic fitness than this default minimum fitness requirement. You agree that you will not under any circumstances take part in any Activity where you do not meet the advertised minimum fitness requirement, if one is advertised, or in the absence of such advertisement, this default minimum fitness requirement.
(c) No Diving in the Shallow End. Diving can be extremely dangerous. You acknowledge these dangers and agree not to dive in the shallow end of any pool at any Activity. For the avoidance of doubt, any part of a pool that is less than 9 feet in depth is a “shallow end.”
(d) Acknowledgment and Assumption of Inherent Risks Dangers of Aquatic Activity. You acknowledge the inherent risks associated with the sports of swimming, water polo, artistic swimming, and diving. You understand that your participation involves risks and dangers, which include, without limitation, the potential for serious bodily injury, sickness and disease, permanent disability, paralysis and death (from drowning or other causes); damage to your lungs or other health risks arising from inadequate or poor ventilation and/or exposure to pool chemicals; loss of or damage to personal property and equipment; concussion and brain injury; exposure to extreme conditions and circumstances; accidents involving other participants, event staff, volunteers or spectators; contact or collision with natural or manmade objects; dangers arising from adverse weather conditions; imperfect water conditions; water and surface hazards; facility issues; equipment failure; inadequate safety measures; participants of varying skill levels; situations beyond the immediate control of the aquatic activity organizers; and other undefined, not readily foreseeable and presently unknown risks and dangers (“Risks”).
You understand that these Risks may be caused in whole or in part by your own actions or inactions, or the actions or inactions of others participating in the Activities, and you hereby expressly assume all such Risks and responsibility for any damages, liabilities, losses or expenses that you incur as a result of your participation in any Activities. You accept sole responsibility for your own conduct and actions while participating in the Activities.
(e) COVID-19 and Other Diseases. You acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that you may be exposed to or infected by COVID-19, or other viral or bacterial infection, while participating in any aquatic activity or social activity, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. You agree that if you have a fever, cough, feel short of breath, have any other symptoms, have knowingly been exposed to a communicable disease such as COVID-19 or have traveled to or from a highly impacted area, you will not attend an Activity for at least two weeks after exposure or symptoms have subsided or you have returned from a highly impacted area. In addition, if you discover you have been exposed to a suspected or positive case of COVID-19 or have tested positive for COVID-19 while in attendance at an Activity, you will notify a TNYA athlete safety officer, coach, or director (whoever is present) immediately.
(f) Waiver and Indemnity. You hereby waive, to the maximum extent permitted by law, any and all rights to claims for loss or damage arising out of your participation in the TNYA programs or any activities incident thereto against TNYA, their facilities, and other partners, their officers, directors and employees and any other organization or individual hosting, sponsoring, organizing or supervising Activities (“the released parties”), including those arising from the released parties’ negligence or other fault of the released parties, as a condition of your participation in the TNYA programs. You further agree to indemnify the released parties with respect to any liability, claims, demands, causes of action, damages, loss or expense (including court costs and attorneys fees) of any kind or nature which may arise out of your participation in the Activities. Notwithstanding anything contained in this paragraph 3(f) or elsewhere in this Agreement, you do not waive those claims that are unable to be waived pursuant to section 5-326 of the New York General Obligations Law or any other statute (but only to the extent that these statutes forbid waiver, and no further), and this Agreement shall not be read to imply otherwise.
(g) Bars to Participation for Health and Safety Reasons. You agree that TNYA may, at its absolute discretion, forbid you from partaking in any Activities if it is TNYA’s judgment that doing so would put your health or the health of others at unreasonable risk. You further agree that TNYA may, also at its absolute discretion, condition lifting of this bar on participation on your agreement to undergo evaluation by a competent professional at your own expense to satisfy TNYA that your participation will not create an unreasonable risk to your health or the health of others. You agree that TNYA’s removal of you from the Activity, or failure to exercise the option to remove you for health reasons, does not represent an assumption by TNYA of any responsibility whatever for your health or safety except as expressly required by law. If TNYA exercises the rights provided to it by this paragraph, TNYA agrees to refund you all practice passes and the value of your subscription pro rata.
4. Membership Conditions and Fees
(a) Nature of Membership. Unlike a gym or club where “membership” is used metaphorically to describe a revocable license to use the gym or club’s facilities, membership of TNYA describes the acquisition of legal membership status in Team New York Aquatics, Inc., a membership not-for-profit corporation formed pursuant to the N-PCL. The only rights extended to members are those set out in the N-PCL and the TNYA Bylaws (which, generally speaking, reduce to the typical governance rights possessed by members of membership not-for-profit corporations).
By resolution of the TNYA Board of Directors, a resolution that was wholly discretionary on the Board’s behalf and may be revoked at any time by the Board for any reason and no reason, membership in TNYA presently grants holders a license to purchase various passes and subscriptions which, together with that membership, combine to provide a license to attend certain TNYA activities. The TNYA Board of Directors may revoke that license at any time either generally or with respect to you personally. You agree that the full value of your TNYA membership is satisfied by your possession of governance rights under the N-PCL and TNYA bylaws. TNYA membership does not give you the right to attend practices or any TNYA activities or events except as the TNYA bylaws expressly otherwise provide.
(b) Trial Membership Terms. TNYA provides an option for persons who have not been members of the Corporation since January 1, 2021 to provisionally “join” TNYA for a period of up to 30 days without payment of the membership fee (“trial membership”), a period that may be extended a further 30 days by payment of a separate fee.
A trial membership, despite its name, in fact describes a revocable license to attend certain TNYA Activities on the terms set by the Board. You agree that your trial membership is revocable at the absolute and unappealable discretion of the Board and may be revoked for any reason or no reason with no refund. You further agree that revocation of your trial membership will lead you to forfeit without compensation any practice passes you may have purchased unless you become a full member. If you wish to acquire the rights of a member of the Corporation, you must become a member of TNYA by purchasing the TNYA membership and paying the requisite membership fee via Mindbody.
You further agree that trial memberships are once-per-lifetime; once used, they cannot be used again by the same individual except at TNYA’s absolute discretion.
(c) Membership in TNYA and NGBs. TNYA may prescribe whether one or more Activities require that you be a member of an NGB. TNYA membership and NGB membership are separate. You agree that if you are prevented from participating in TNYA because you are not a member or NGB and that prevention of participation leads to the constructive forfeiture of a pass or subscription, you will receive no refund for such a forfeiture. You agree that in such an event your recourse lies exclusively with the relevant NGB and not TNYA. TNYA makes no representations or warranties respecting any policies or practices of the NGBs; all disputes and concerns with NGB membership (including the application of the Health Club Services Law) must be raised with the NGBs themselves.
(d) Membership is an Annual Commitment Charged Every 3 Months. Mindbody charges the membership fee in four equal installments per year. Although charged four times a year, membership is a one-year commitment. Thus, for example, if your membership renews on July 1, 2024 and you elect to resign on July 2, 2024 you will be charged on July 1, 2024 (the day before your resignation), October 1, 2024, January 1, 2025, and April 1, 2025 with your membership expiring automatically only on July 1, 2025.
(e) Membership Termination. Membership automatically renews for a new year on the one-year anniversary on which you joined, at which time one quarter of the annual dues will be charged (with subsequent quarterly charges made until the year is complete). You may stop auto-renewal by resigning your membership before 11.59pm New York time on the day before the date your membership renews, as follows:
Online Resignation. You may cancel your membership at any time up to the date of renewal online by visiting the Mindbody store, selecting the My Info tab, selecting “Account,” and then selecting “terminate” next to your membership (which will be listed under “Autopays” on that page). This terminates your membership, effective immediately, and halts all auto-pays. You will lose your rights as a member immediately upon termination.
Email Resignation. You may also resign as a member by emailing mail@tnya.org from the email address you used to sign up with us. If you elect to resign via email it may take us up to 7 days to process your resignation.
Postal Resignation. You may also resign by writing by certified or registered United States mail to TNYA at our postal address listed at www.tnya.org/contact. If you elect to cancel via postal mail you agree that it may take TNYA up to 15 business days to process your resignation.
If your resignation was received by TNYA before 11.59pm New York time on the day before the date your membership renews but your membership renews for a new year anyway, you will be entitled, upon email request made within 30 days of the inadvertent charge, to a full refund of all monies paid as a result of the undesired renewal. This is the only ground on which you are entitled to a refund of your membership fee.
(f) No Right to Refund of Membership Dues. You agree that the membership fee you have paid or will pay to join TNYA represents the joining fee or membership dues for voting membership in a not-for-profit corporation pursuant to section 507 of the N-PCL and TNYA Bylaws 2.1(e) and 2.5 and is accordingly exempt from the provisions of the Health Club Services Law pursuant to subdivision 1(a) of section 621 of the General Business Law.
Your only right to a refund is an inadvertent renewal of your membership for a new year notwithstanding your timely resignation, as described in paragraph 4(d) of this Participation Agreement. That right arises because of TNYA policy and not because of the application of section 624(4)(b) of the General Business Law.
(g) Forfeiture on Loss of Membership. If you purchased a subscription or pass or Special Event Admission while you are a TNYA member, and cease to be a TNYA member, you agree that to the extent your ceasing to be a TNYA member makes it impossible to use or enjoy a subscription or pass or Special Event Admission, you forfeit the remaining value of any pass, subscription, or Special Event Admission active at the time you cease to be a member and are not entitled to a refund except as this Agreement otherwise provides.
(h) Agreement Binds Notwithstanding Membership. You consent to all of the terms of this Agreement whether or not you ultimately become a member of TNYA.
5. Activity Schedule and Signup
(a) Attendance Requires Registration. Unless TNYA otherwise provides in writing, all TNYA Activities require as a condition of your participation that you be a TNYA trial or full member, enroll in the practice on Mindbody or be added to the practice by the coach on deck or gatekeeper, and have paid for the practice with a pass or subscription either before the practice or upon being added to the practice.
(b) Financial Obligations Incurred Upon Attendance. If notwithstanding paragraph 5(a) of this Agreement you take part in a Practice or Activity without paying for it either before or at the Practice or Activity proper, you agree to be charged on your stored payment method for all costs associated with your attendance that you would have incurred if you had properly signed up for the practice in advance, as well as any other charges TNYA may incur or reasonably impose upon you as a result of your attendance (taken together, “your attendance costs”).
For example, if you attended two practices using a free trial membership, and then attended a third practice without pre-registration or payment, you agree that TNYA can charge you for both a TNYA annual membership and a pay-per-practice pass to cover the cost of the practice.
If your stored payment method does not accept the charge (or you lack a stored payment method) you agree to pay TNYA your attendance costs upon TNYA’s written demand, and, should you fail to do so within 30 days of such a written demand, agree that TNYA may seek to recover your attendance costs from you by an action or proceeding in a court of competent jurisdiction situated in whole or in part in New York County, New York, without recourse to the dispute resolution provisions of this agreement. You agree to waive all objections to personal jurisdiction in such a court and any other objections to judgment being entered against you that can lawfully be waived by operation of a pre-dispute agreement.
(c) Disclaimer Respecting Schedule and Coach Availability. TNYA makes no representations or warranties as to the accuracy of any disclosures it may make, on its website, social media, or otherwise, as to the times, locations, or coaches of any practices for which a pass or subscription may be used.
You agree that TNYA may cancel any practice on any notice or no notice and for any reason or no reason such that advertisements as to the time and locations of practice may at any time become inaccurate. You further agree that if you unsubscribe from TNYA’s newsletter and/or Mindbody emails or text messages, you have waived any argument in any subsequent proceeding that you had a right to receive corrections of practice schedules or TNYA had an obligation to send you such corrections or notifications.
If a given practice for which a pass or subscription can be used is canceled, you agree that your only recourse is to attend another practice that week (if a pay-per-week subscription) or month (if an unlimited subscription) or any other time during the validity of your pass (if a pass), except as this Agreement expressly otherwise provides. A pay-per-practice pass purchased for a specific practice will be uncharged upon TNYA’s cancellation of a practice and can be used for a future practice until the pass expires.
TNYA notes the name of coaches for particular practices on Mindbody as an administrative convenience and makes no representations that a particular coach will coach a particular practice or coach any practice at all. You agree that you have not acted in reliance on such advertisements. TNYA reserves the right to designate coaches for any practice at its absolute discretion on any notice and no notice.
(d) Late Cancellations. If you sign up for a given practice you may cancel that practice without a charge to your pass or subscription if you do so more than 2 hours before the scheduled start time of the practice (an “early cancellation”). Cancellation after that time is a late cancellation; you will be charged for a late cancellation as if you attended the practice and may, depending on the practice, be levied a late cancellation charge (see below).
(e) Late Attendance. If you do not arrive at a practice or any other Activity within 10 minutes after the actual practice or Activity start time, TNYA may, at its absolute discretion, assign your spot at the event to a waitlister or walk-up present at the Activity location. If you are more than 10 minutes late and there is still room for you, you may be admitted to the practice at TNYA’s absolute discretion. Factors that TNYA may consider when determining whether to admit a late swimmer include how late the swimmer is and whether the swimmer’s admission will be unduly disruptive to the Activity. You agree that TNYA’s determination of this matter is final and unappealable. In the ordinary course, TNYA’s powers pursuant to this paragraph shall be exercised by the senior coach on deck.
Practices ordinarily begin precisely when they are scheduled to begin, but the coach may at the coaches’ discretion delay the actual start time of practice owing to external circumstances (e.g. prior group late getting out of the pool; delays with security at the front door). For the purpose of the late attendance and no-show policy only, it is the actual start time and not scheduled start time that governs.
(f) Waitlist. TNYA Activities may be capped at a specific number of attendees; if so, attendance is first-come, first-served based on Mindbody sign-ups. If an Activity is full, you may elect to join the waitlist for that Activity. Mindbody will automatically move members into the Activity as attendees cancel and email them when this occurs, up to the moment of the late cancellation deadline for that Activity. If you no longer wish to attend the Activity, it is your responsibility to remove yourself from the waitlist using the Mindbody system before the late cancellation deadline. You agree that if you are moved into the Activity by the system you will be charged for the practice unless you remove yourself before the late cancellation deadline.
(g) Walk-Ups. If a practice has fewer prior reserved attendees than slots, you may be admitted to practice without prior reservation by the coach or gatekeeper; a walk-up will be charged on the same basis as a prior booking. If there are more walk-ups than there are available spaces, walk-ups will be admitted in the order in which they appear on the waitlist (or, failing that, the order in which they arrive). Walk-ups may also be admitted if the practice is booked to capacity but person making a prior booking does not arrive within 10 minutes of the practice start time.
(h) No-Show and Late Cancel Fees. You agree that TNYA may charge you a “no-show or late cancel” fee if you are a no-show or late cancel a popular practice, as follows:
Definitions
A “popular practice” is a speed swim practice held at John Jay College on Saturday before 12.30pm.
You are a “no-show” when you fail to attend at the practice within 10 minutes of its actual start time.
You “late cancel” a practice when you cancel a practice at any time on Mindbody after the 120th minute before the scheduled start time of the practice.
Penalties for No-Show or Late Cancellation
If you late cancel a practice, or are a no-show to a practice, you will be charged a $25 late cancellation or $33 no-show fee in the form of an obligatory donation to the Paul Fortoul Fellowship Fund and have your subscription or pass charged as if you attended the practice.
Exemptions
If you no-show or late cancel, you will be exempt from the fee if:
- You are currently on a free trial and are not a paid member of TNYA; or,
- The Mindbody system suffered a failure that prevented you from canceling and you emailed mail@tnya.org to cancel before the 2-hour late cancel window closed; or,
- Some other unforeseen event occurred that was (i) outside of your control and (ii)(A) prevented you from attending practice [if a no-show] or (B) prevented you from canceling before the 2-hour late cancel window closed [if a late cancel] (e.g. took a subway that should have gotten you to practice on time only for subway to get derailed in a tunnel with no cell service); or,
- No other exemption applies but this is your first no-show or first late cancel in the calendar year.
Process for Levying and Contesting Penalties
If you late cancel or are a no-show, you will be contacted automatically by the Mindbody system. At that time, you may email mail@tnya.org if you believe one of the exemption criteria applies (other than your “free pass,” which will be applied automatically). Failure to contest the application of a late fee within 7 days of notification shall be deemed a forfeiture of your right to a late fee exemption (if any). Late fees will be finalized and charged once per week.
The applicability of any of the exemption criteria shall be determined by the Board or its authorized agents and is vested to their absolute discretion, except as the TNYA Bylaws otherwise provide.
Illustrative Example
If practice begins at 7pm, you can “early cancel” that practice without penalty any time before 5pm. You can then “late cancel” that practice any time between 5pm and 7.10pm. If you show up before 7.10pm your spot is reserved; after 7.10pm it may be given to someone else and you will be charged a no-show fee.
6. Refund Policy for Passes and Subscriptions
(a) Refund of Passes for Medical Issues. Because a pass can be used at any time and stays in your Mindbody account for 12 months, TNYA will not provide refunds for passes purchased unless you experience an injury or other disability that, according to a doctor’s order, prevents you from participating in activities for which the pass can be redeemed for all but one month of the period for which the pass is valid or three months (whichever is less), in which case you are entitled to a refund pro rata of the unused portion of the pass. If you die, upon learning of your passing TNYA will refund your estate the remaining value of the pass upon request, deducting only amounts actually used.
(b) Subscription Auto-Renewal and Cancellation by Online Process or Email. All subscriptions auto-renew each month by default. You may stop auto-renewal by cancellation of your subscription, as follows:
Online Termination. You may cancel a subscription at any time up to the date of renewal online by visiting the Mindbody store, selecting the My Info tab, selecting “Account,” and then selecting “terminate” next to the subscription (which will be listed under “Autopays” on that page). This terminates your subscription, effective immediately, and halts all auto-pays, but forfeits the remaining value of the subscription. If you have a right to a refund, you should cancel via email.
Email Termination. You may also cancel a subscription by emailing mail@tnya.org from the email address you used to sign up with us. If you elect to terminate via email it may take us up to 3 business days to process your cancellation.
Postal Termination. You may also cancel a subscription by writing by certified or registered United States mail to TNYA at our postal address listed at www.tnya.org/contact. If you elect to cancel via postal mail you agree that it may take TNYA up to 3 business days to process your cancellation after receiving your termination in the mail.
In Person and Telephone Cancellation. Pursuant to section 624(4)(c) of the General Business Law, TNYA is required to accept “notice of cancellation of a [subscription] through methods including . . . telephone or in person.” You may accordingly cancel your subscription by speaking to any full-time TNYA employee via telephone or in person.
Cancellation will not entitle you to a refund except as this Agreement otherwise provides.
(c) Refunds for Subscriptions. You are entitled to a refund for a subscription if:
Auto-Renewal Without Authorization. If TNYA fails to process the cancellation of an automatic renewal made in accordance with this Agreement, you will be entitled to a full refund of all monies paid as a result of the undesired renewal.
You Terminate Within Three Business Days. If you cancel a subscription within three business days of purchase or autorenewal and have not used the subscription to attend any practices or activities, you are entitled to a full refund upon request. For the avoidance of doubt, the three business day period runs until 11.59pm, New York Time, on the third business day following purchase. Thus if you purchase a pass on Monday at 9.00am, you have until Wednesday at 11.59pm to cancel.
You Move House. If your primary place of residence was within 25 miles of a pool in which TNYA operates a swimming workout when you purchased the subscription (or when it most recently autorenewed) and then you moved your primary place of residence to a location more than 25 miles away from a pool in which TNYA operates a swimming workout, you are entitled to a pro rata refund of the unused portion of the subscription.
You Become Injured. If you become significantly physically disabled for a period in excess of three months, you are entitled to a refund, pro rata, of the unused portion of your subscription on the same basis. TNYA may request medical documentation sufficient to substantiate any claim of injury.
(d) Refund for Subscriptions Upon TNYA Cancellation. TNYA will provide an amount of Mindbody account credit representing the amount of a subscription you have not used, upon request, if (i) sufficient practices you (ii) were able to attend and (iii) intending to attend (iv) advertised on our Mindbody schedule at the time you purchased the subscription (or it most recently auto-renewed) are (v) advertised on our Mindbody schedule as being held during the subscription’s effective period and are (vi) canceled by TNYA for any reason (vii) subsequent to your purchase or most recent autorenewal such that (viii) even if you were able to and did attend all remaining practices, anywhere in New York City, for which the subscription could be used, you would still not be able to realize the value of the subscription.
For example, if TNYA advertised 4 practices in a given week on the day you purchased a 2x practice per week subscription, to be held within the month of that subscription’s initial term, and then TNYA canceled all but 1 practice that week, you would be eligible for a pro rata refund.
If in the preceding scenario you purchased an all-sports unlimited subscription, you would also be eligible for a pro-rata refund (2x practices in a week of your notional entitlement of 4 where only 1 practice occurred).
Because all subscriptions access all practices, the complete cancellation of a given sport’s weekly practice (e.g. all water polo practices for the week) will not trigger application of this policy unless sufficient practices across all sports have been cancelled so as to make realization of the subscription’s value impossible.
(e) Method of Calculating Pro Rata Refunds for Subscriptions. Whenever this Policy provides that you are entitled to a pro rata refund of your subscription, the amount to be refunded (R) will be calculated by application of the formula below, rounded up to the nearest cent:
R = (N – A) * (T / N)
Where N is the total number of practices a subscription accesses each week (for an unlimited, this number is conclusively presumed to be 4), multiplied by 4, A is the number of practices attended with that subscription, and T is the total cost of the subscription.
Thus for example a person who purchased an unlimited subscription ($185) and attended 6 practices before falling ill and being entitled to a refund would receive $115.63, being N = 4 practices per week * 4 = 16 practices; A = 6 practices attended; T = $185; thus (16-6) * (185/16) = $115.63.
(f) Special Event Admission Refunds.
Early Cancellation. TNYA may advertise, with respect to any Special Event Admission, a cancellation deadline associated with the special event for which the admission is to be used (“the refund deadline”). Absent such an advertisement, the refund deadline is 30 days before the advertised start date of the event. You may cancel any Special Event Admission and receive a full refund if you request such a cancellation in writing before 11.59pm, New York Time, on the date of the refund deadline. You do not have a right to a refund after the refund deadline unless TNYA cancels the entire event.
TNYA Cancellation. If TNYA cancels the entire event for which a Special Event Admission was purchased, you shall be entitled to a full refund. For the avoidance of doubt, the cancellation of any part of the event for which this Special Event Admission was purchased that does not represent the entirety of the event for which this Special Event Admission was purchased shall not entitle you to a refund.
(g) Discretionary Refunds. If you do not satisfy the criteria for a refund or credit, you may write to TNYA at mail@tnya.org at any time between the date of payment and 30 days following that date and request a refund policy variance to receive account credit equivalent to the unused portion of your pass (please use the subject line “Request for Refund Policy Variance”).
You agree that refund policy variances are made at the absolute discretion of TNYA. In considering whether to grant a policy variance, TNYA may have regard to the following factors: (i) the circumstances of your request, in particular whether you did not make use of the relevant portion of the pass on account of contingencies that were both beyond your control and reasonably unforeseeable on the date of the purchase or renewal (or, for a Special Event Admission, the date of the full refund deadline); (ii) whether failure to grant the requested credit would impose undue financial hardship on you; and (iii) any other appropriate factor.
(h) Request for Refund or Credit. All requests for refunds or credits must be made via email to mail@tnya.org from the email address you used to register with Mindbody within 30 days of the event that created an entitlement to a refund or credit. Because we are an all-volunteer charity, it may take us up to 10 business days to process your request for a refund. You agree not to dispute the charges with your credit card servicer until after 10 business days following your refund request being sent to us.
(i) Forfeiture of Passes or Subscriptions Following Extended Period of Inactivity. TNYA reserves the right to terminate the passes, subscriptions, or Special Event Admission of any user in the Mindbody system who did not participate in any TNYA activity for which Mindbody registration was required (whether as a member or non-member) in the entire preceding calendar year. You agree that TNYA may terminate these passes if you do not participate in any TNYA activity through Mindbody for an entire calendar year.
(j) Credit Card Servicer Disputes. You agree that at least 7 business days prior to disputing a charge from TNYA with your credit card servicer, you will contact us at mail@tnya.org to explain why you believe a TNYA charge is unwarranted. If you do not do so, and your servicer determines that your dispute is baseless and you were properly charged, you agree that TNYA may, at its absolute discretion, prohibit you from making future purchases from TNYA of any subscriptions or passes as well as recover from you any monies TNYA was wrongfully charged as a result of your baseless dispute.
(k) Acceptance of Differential Risk and Value of Subscriptions and Contracts Depending on Practice Cancellations or Other Circumstances. You agree that a subscription is a license, and not an entitlement, to attend TNYA practices, and that a subscription does not provide you with a right to attend any particular practice it allows you to attend. For example, a practice may be advertised during the time period of your subscription but becomes full with other subscribers before you reserve your place in it. For another example, TNYA may indicate on our Mindbody schedule that a regularly scheduled practice is cancelled but sufficient other practices remain on the schedule to avoid triggering the pro rata refund rules above. In these and any other circumstances where you are prevented from attending practices, except where you are granted the right to a refund or credit by New York law or this policy, you agree that you have no expectation or entitlement to any compensation or credit as a result of your inability to attend the practice or the failure of the practice to take place.
(l) Health Club Services Law Notices. CONSUMERS RIGHT TO CANCELLATION. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR FURTHER OBLIGATION WITHIN THREE (3) BUSINESS DAYS FROM THIS DATE ON WHICH YOU PURCHASED THE CONTRACT. Notice of cancellation shall be in writing subscribed by the buyer and mailed by United States mail or electronic mail to the seller at the address or email address specified in such form (available at www.tnya.org/contact). Such notice shall be accompanied by the contract forms, membership cards and any other documents or evidence of membership previously delivered to the buyer. All moneys paid pursuant to such contract shall be refunded within ten business days of receipt of such notice of cancellation. If the buyer has executed any credit or loan agreement to pay for all or part of TNYA’s services, any such negotiable instrument executed by the buyer shall also be returned within ten business days.
ADDITIONAL RIGHTS TO CANCELLATION: You may also cancel this contract for any of the following reasons:
- If upon a doctor’s order, you cannot physically receive the services because of significant physical disability for a period in excess of three months.
- If you die, your estate shall be relieved of any further obligation for payment under the contract not then due and owing.
- If you move your residence more than twenty-five miles from any health club operated by TNYA.
- If the services cease to be offered as stated in the contract.
NO DEROGATION OF GREATER RIGHTS SET FORTH IN THESE TERMS: The above language is required to be inserted into this Agreement pursuant to section 624 of the New York General Business Law. Pursuant to subdivision 3 of that section, to the extent that other provisions of these or other terms between you and TNYA provide additional or broader reasons for cancellation or means by which cancellation can take place, the broader terms govern.
7. Privacy
(a) Use of Personal Information. You agree that TNYA may use your personal information for those functions that are reasonable and necessary for the conduct of the business of the corporation, including but not limited to sending you emails and text messages about Activities.
Pursuant to TNYA’s privacy policy, TNYA will not sell your information to third parties, but may use existing TNYA channels of communication to promote goods and services of enterprises we believe may be of interest to TNYA members. You have the right to opt-out of such communications, but pursuant to section 606 of the N-PCL you do not have the right to opt-out of receiving those communications TNYA must send you under state or federal law (including but not limited to notice of the TNYA annual membership meeting, TNYA special membership meetings, and your proxy voting form for such meetings).
You acknowledge that under section 621 of the N-PCL, TNYA may be obliged to furnish your contact information to other members, although TNYA will use reasonable efforts in all cases to insist on the non-commercial-use affidavit permitted by subdivision (b) of that section.
As a result of your participation in TNYA, you must make use of the Mindbody service, which has its own terms of service and privacy policy that may include the use of your personal information by Mindbody; please refer to those policies for further information.
(b) Permission to Use Photographs, Videos, and Images in TNYA Media. You agree that TNYA or its agents may take and use photos and videos of you, your likeness, or your image to advertise and promote TNYA and the Activities without compensating you, consistent with TNYA’s privacy policy which TNYA may amend from time to time without notice or seeking your further consent. TNYA may grant others permission to use photos and videos of you in the course of promotion of the team.
(c) Permission to be Photographed or Recorded by Third Parties With TNYA Permission. You agree that TNYA may invite members of the press to record practices or competitions, without seeking your further consent, provided that TNYA shall make reasonable efforts to advise attendees before the practice begins that members of the press are present and provide you with a reasonable opportunity to discuss with such members of the press any requests you might have respecting the use of your image.
(d) Representations of TNYA to Third Parties. TNYA’s official spokespersons are the Board and its designated representatives. Absent express written permission from the Board or its designated representatives, you agree not to make any representations on behalf of Team New York Aquatics, Inc. or any constituent unit thereof to any third party.
8. Dispute Resolution
(a) Binding Nature of Agreement. You have read this Agreement carefully, understand it, acknowledge that you have signed this Agreement without any inducement, assurance, or guarantee, and intend for your electronic signature or equivalent expression of consent on any form incorporating this Agreement to serve as confirmation of your complete and unconditional acceptance of the terms, conditions and provisions of this Agreement. This Agreement represents the complete understanding between the parties regarding these issues and no oral representations, statements, or inducements have been made apart from this Agreement and the documents it incorporates by reference. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
(b) Choice of Law. You and TNYA agree that any dispute arising out of this Agreement, or your participation in any TNYA activity, shall be governed exclusively by the laws of the State of New York, without regard to New York’s choice of law rules.
(c) Pre-Litigation Dispute Resolution. You and TNYA agree that prior to your commencing a lawsuit against TNYA, its officers, directors, employees, or agents, or TNYA commencing a lawsuit against you or your agents, you and TNYA will attempt in good faith to resolve your dispute out of court. This requirement will be satisfied if the complainant: (i) communicates in writing with the respondent (if TNYA is the respondent, such a writing should be an email sent to mail@tnya.org; if you are the respondent, an email sent to your last known email address from TNYA’s records is sufficient), a complaint setting out a demand for the relief sought, which may include relief in the alternative or different types of relief, along with a short and plain statement of the claim showing that the complainant is entitled to relief; and (ii) makes a reasonable effort to meet either in person or by videoconference with the respondent following the communication of that statement.
You further agree that if the dispute concerns the imposition or lack of imposition by the Board of any sanction provided by TNYA Bylaw 2.3, or the dispute would be resolved by a membership override of the Board pursuant to TNYA Bylaw 3.9, you will not commence a lawsuit against TNYA before fully exhausting the procedures set forth in the TNYA Bylaws for the holding of a special membership meeting to review the Board’s decision. You agree that this paragraph 8(c) shall not apply to any action or proceeding TNYA may initiate against you pursuant to paragraph 5(b) of this Agreement.
(d) Forum and Jurisdiction. You and TNYA agree to submit to the exclusive jurisdiction of New York State Supreme Court, New York County, or the U.S. District Court for the Southern District of New York, which, following satisfaction of the pre-litigation dispute resolution provisions of this Agreement, shall hear any dispute, claim or controversy arising in connection with or relating to the Agreement or any matter arising out of your participation in TNYA, including, but not limited to the validity, breach, enforcement or termination of this Agreement, or any matter arising out of an Activity. You and TNYA both agree to waive all objections based on personal jurisdiction to suit in New York State Supreme Court, New York County or the U.S. District Court for the Southern District of New York.