ÇA VA THE STUDIO

CONTRACT & WAIVERS

TERMS OF ENGAGEMENT OF CAVATHESTUDIO (PTY) LTD

This document sets out the terms and conditions upon which CAVATHESTUDIO (Pty) Ltd with registration number 2025/482745/07 (“the Studio”) has agreed to provide its services (“the Services”) to you, as the Client (“Terms”). The Services entail the presentation and facilitation of Pilates and other exercise classes (“classes”), and any such further services that the Studio may offer from time to time.

Your acceptance of any quotation or service from the Studio, or your purchase of or enrolment in any classes or packages from the Studio (whether directly or through any third-party platform or entity) indicates your explicit and/or tacit acceptance of the terms of engagement listed below, and any Annexures attached.

1. INTRODUCTION The Studio shall provide the Client with the Services in accordance with these Terms.
2. RELATIONSHIP OF THE PARTIES
   1. The relationship between the Studio and the Client shall be as set forth in these Terms. Nothing contained herein shall be deemed to be or otherwise construed as constituting or creating a partnership, joint venture, employer/employee agreement or any similar relationship between the parties. The Studio shall not, by reason of the actions of the Client or any third party, incur any liability in favour of any third party.
   2. Where these Terms are entered into by a parent or guardian on behalf of a minor, these Terms shall be applicable to and binding upon both the parent/guardian and the minor. The parent or guardian, by their agreement to these Terms, agrees to bear all risk and liability pertaining to the minor’s use of the Services. 
3. DURATION
   1. These Terms shall become effective and binding upon the Client with effect from the earlier of the date on which the Client purchases any classes or packages from the Studio as set forth in clause 4 below, or enrols in any such classes in any other manner (including, without limitation, through accepting any free or promotional classes from the Studio) (“the Effective Date”).
   2. These Terms shall remain effective and binding on the Client at all material times during the Studio’s provision of the Services, and further at all material times while the Client holds any pre-purchased classes or packages.
4. PURCHASE OF CLASSES OR PACKAGES OF CLASSES
   1. The Client shall be entitled to:
      1. pre-purchase classes (in the form of a single class, or a package of multiple classes) either online at https://app.octivfitness.com/widget/packages?publicToken=e90132011aa55a53b1264999f5341f29da6717a3 or in person at the Studio’s premises;
      2. attend classes on an ad-hoc, walk-in basis.
   2. The Client is, however, encouraged to pre-book online as the Studio is only able to accommodate a limited number of people per class, and walk-ins are subject to availability (and available spaces are accordingly not guaranteed).
   3. Pre-purchased class credits will be tracked via a third-party platform, and will be deducted from when the Client attends a class.
   4. Pre-purchased class credits will be valid until the earlier of: 
      1. the date on which the class credit is used by or on behalf of the Client; or
      2. a date calculated to be 3 (three) calendar months after the date on which the class (or package) is purchased.
   5. No pre-paid class credits or packages will be refunded under any circumstances. However, credits may be transferred to a third party upon request. Any such credit transfer will, at a minimum, be subject to the third party agreeing to these Terms and further signing any additional documentation (including, without limitation, any indemnity forms that the Studio may determine necessary).
5. PAYMENT TERMS
   1. As consideration for the provision of the Services by the Studio, the Client shall be required to purchase the classes (or a package of classes) prior to their attendance at any classes. Should the Client seek to attend a class on an ad-hoc, walk-in basis, the Client shall be required to pay for the class using the point-of-sale facilities offered by the Studio at the Studio’s premises. No cash or cheques will be accepted, unless by prior arrangement.
   2. The Studio shall provide the Client with an invoice for any purchases made.
   3. All class fees are exclusive of VAT, which the Studio shall add to its invoices in the event that VAT applies.
6. CANCELLATION AND NO SHOWS
   1. Clients may cancel a booking up to 24 (twenty-four) hours before a class without penalty.
   2. Late cancellations/no-shows result in forfeiture of that class credit.
   3. For unlimited packages, repeated no-shows for a period of a month without formal notice may result in suspension. But this will be communicated in writing. 
7. GENERAL OBLIGATIONS OF THE STUDIO

    The Studio undertakes to the Client that they will:

1. render the Services in accordance with these Terms, and shall act in a manner as they reasonably consider to be the most beneficial to the interests of the Client;
2. perform the Services to the best of their ability;render the Services according to good industry practice and exercise the highest degree of due care, diligence and skill in the provision of the Services;
3. ensure that, at all material times, they (and their employees/contractors) are appropriately certified, qualified, and lawfully entitled to provide the Services in all respects;
4. not utilise any of the Client’s resources to service their own clients or the clients of anyone but the Client; and not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Client                       

    8. GENERAL OBLIGATIONS OF THE CLIENT

The Client undertakes to the Studio that it will:

1. provide accurate and complete information to the Studio when signing up for any classes, and advise the Studio in advance should they have any health concerns or considerations that may impact the Studio’s delivery of the Services; 
2. notify the Studio in writing should any previously submitted information be or become untrue, incorrect, and/or inaccurate; and not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Studio.

9. LIMITATION OF LIABILITY

1. The Client acknowledges and accepts that the Services inherently involve certain risks, including, without limitation, injuries arising from overexertion, physical adjustment, improper or negligent use of recommended equipment, failure to adhere to the instructions of the Studio or its instructors, or injuries resulting from participation in a class or activity that is not appropriate to the Client’s level of physical ability. The Client accordingly understands and voluntarily assumes all such risks associated with the Services.
2. The Client acknowledges and agrees that should they be pregnant, become pregnant, be post-natal or post-surgical, or suffer from any other medical condition that may reasonably or foreseeably be impacted by exercise, they shall:
   1. obtain written approval from their doctor or medical practitioner prior to participating in any classes; and
   2. provide such written approval to the Studio, and ensure that the class facilitator or trainer is advised of their condition prior to the commencement of the class; and
   3. listen to their body and discontinue the activity if they experience any pain or discomfort, and advise the class facilitator or trainer accordingly.
3. The Client agrees that the Studio shall not be liable for any loss (including loss of reputation or goodwill), damages, costs (including attorney and associated costs), interest and expenses suffered by the Client and arising out of or in connection with, whether directly or indirectly, the Services (including, without limitation, bodily injury, loss of or destruction of property, and/or death). 
4. The Client hereby unconditionally and irrevocably indemnifies (and shall keep indemnified) the Studio against all losses (including loss of reputation), damages, costs (including attorney and associated costs), interest and expenses which the Client may, does or is likely to sustain as a result of any claim arising out of or in connection with the Studio’s provision of the Services, whether directly or indirectly, other than in circumstances where the Studio has been grossly negligent or committed wilful misconduct in the provision of the Services.
5. The Client further acknowledges and agrees that the Studio is not liable for any harassment, misconduct, or inappropriate behaviour by other clients or third parties. For the purposes of these Terms, “harassment” includes but is not limited to:
   1. Sexual harassment: unwelcome conduct of a sexual nature, advances, gestures, or comments.
   2. Verbal harassment: abusive, discriminatory, or offensive language directed at any person.
   3. Physical harassment: unwanted physical contact, intimidation, or threats.
   4. Digital/online harassment: inappropriate communication or conduct through electronic platforms, social media, or digital forums linked to the Studio.
   5. The Studio will take reasonable steps to investigate any reported harassment and may take action including suspension or termination of the offending client’s membership. However, the Studio shall not be held liable for damages, losses, or claims arising from harassment committed by third parties. The Client indemnifies and holds the Studio harmless against any such claims.
   6. In addition to the above, the client agrees that they have met or disclosed any of the items mentioned in the Discovery Physical Health Questionnaire (Addendum 1) 

10. USE OF RECORDING EQUIPMENT

1. The Client is permitted to use cameras, video recorders, or other recording equipment during classes or on the Studio’s premises strictly for personal use, provided that such recordings are not used for any commercial purpose whatsoever.
2. The Client undertakes that no person other than themselves shall appear in any footage or images captured, unless the express written or verbal consent of such person has been obtained in advance.
3. The Client further indemnifies and holds the Studio harmless against any claims, losses, damages, or expenses arising from the inclusion of any other class attendee in such recordings or images without their express written permission.
4. The Studio reserves the right to:
   1. request the immediate deletion of any footage or images that do not comply with this clause and to revoke the Client’s permission to record at its sole discretion; and take and make use of photos and/or videos of the Client during classes and events for promotional purposes, without payment or any other consideration unless or until the Client revokes this authorisation in writing.

11. WARRANTIES

1. The Client unconditionally and irrevocably warrants that: 
   1. entering into and implementing these Terms will not result in any breach or potential breach of laws or regulations in the Republic of South Africa; and
   2. they are duly authorised and lawfully entitled to enter into these terms and they are lawfully capable of creating binding contractual obligations their own behalf. If the Client is a minor, the parent or legal guardian unconditionally and irrevocably warrants that: that they have the legal authority to enter into these Terms on behalf of the minor and that all obligations, liabilities, and warranties herein shall be binding on both the minor and the parent or legal guardian.

12. CONFIDENTIALITY

1. For the purposes of these Terms, “Confidential Information” means all information and materials, whether oral, written, electronic, or in any other form, disclosed by either party to the other in connection with the Services, including but not limited to: business operations, class content and methodologies, client lists and personal information, pricing, schedules, marketing strategies, training materials, exercise routines, proprietary techniques, processes, designs, photographs, sketches, drawings, physical or digital samples, and any other information that is identified as confidential or that, by its nature or the circumstances of disclosure, ought reasonably to be regarded as confidential. Unless otherwise agreed to in advance, in writing, or except as expressly permitted by these Terms, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party or disclose any Confidential Information to any third party.
2. The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
3. All Confidential Information supplied by the Client to the Studio shall, at all times, be and remain the exclusive property of the Client, but shall be held by the Studio in safe custody at its own risk. The Confidential Information shall not be disposed of or used other than in accordance with the Client's written instructions or authorisation.
4. Upon the termination or expiration of these Terms for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.

13.PROTECTION OF PERSONAL INFORMATION

1. For this clause, “Responsible Party” is used as defined under the South African Protection of Personal Information Act, 2013 (“POPI”) to mean the party who sources and decides what to do with the personal data they have attained for processing. Similarly, the use herein of the term “Operator” as per POPI is used to mean the party who processes personal data on the Responsible Party’s instruction for a particular processing function.
2. Both parties understand that they may process (including but not limited to, accessing, seeing, recording, using, transmitting and/or routing) personal data of data subjects as either a Responsible Party (for their own personal data acquired for their purposes) or as an Operator (for the personal data provided to them from the Responsible Party).
3. Both parties warrant to the other that they will adhere to all requirements and duties imposed on them by the application of POPI, as dictated by the role that they fulfill relating to the personal data they process. For the avoidance of doubt, the Studio shall, at all times, be the Operator of any and all personal data it processes on the instruction of the Client in accordance with these Terms. 
4. Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under POPI related to their role as either or both the relevant Responsible Party and/or Operator.
5. These duties naturally include the duty of each party to retain and store all data received from the other party as strictly confidential at all times.
6. Should either party require the other party to fulfill any particular conditions relating to its processing of any personal data as the Operator, the parties shall detail and agree to the same conditions in a distinct written data processing agreement between them.
7. If either party operates as a Responsible Party, they warrant to the other party (as the relevant Operator of the Responsible Party’s personal data handed to them) that they have expressly obtained all relevant consents and/or can evidence its lawful bases for relaying any of their own or own users’/data subjects’ personal data to the other party for the purposes of that other party processing it for whatever reason as the Operator.
8. Both parties also warrant to each other that they have no criminal convictions or judgments recorded against them which relate to crimes relating to fraud, unlawful use of personal information or any crime related to the illegal use or processing of personal information in any way.
9. Both parties also understand and agree that for data continuity and risk-mitigation purposes, should these Terms be terminated for any reason, and unless otherwise provided for in another data processing agreement between them, the parties will immediately cease all processing of personal data provided to them by the other party, as well as permanently delete/destroy any personal data of the other party’s on/within their systems. To assist each other in this process, both parties will provide the other party with whatever information or tools needed in order to action this destruction as required.

14. STUDIO POLICIES AND PROCEDURES

The Client acknowledges and agrees that these Terms are subject to, and shall be supplemented by, any additional policies and procedures that the Studio may implement and communicate from time to time. Such policies and procedures shall be binding on the Client upon notification or publication by the Studio and shall form an integral part of these Terms.

15.USE OF SUB-CONTRACTORS

The Studio shall be entitled to utilise sub-contractors for any of the rights or obligations contained in this Agreement. The Studio shall ensure that its chosen sub-contractors are under appropriate obligations of confidentiality regarding the Services, which obligations of confidentiality shall be no less stringent than those set forth in this Agreement. The Studio shall be liable for the performance of its chosen sub-contractors.

16.BREACH 

1. Either party (“the innocent party”) shall be entitled without notice, as in addition to any remedy available to it in law or under these Terms, including obtaining an interdict, to claim specific performance of any obligation whether or not the due date for performance has arrived, or termination of these Terms (in either case without prejudice to the innocent party’s right to claim damages occasioned by the other party (“breaching party”)) in the event that:
   1. on written notice to that effect by the innocent party should the breaching party commit any breach or permit the commission of any breach of any material obligation or warranty contained in these Terms and, in respect of such a breach capable of remedy, fail to remedy that breach within 10 (ten) business days after the giving of written notice to that effect by the innocent party to the breaching party; or
   2. the breaching party repeatedly breaches any of the terms and/or conditions contained herein in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of these Terms.

17.DISPUTE RESOLUTION

1. Should any dispute, disagreement or claim arise between the parties (“dispute”) concerning these Terms, the parties shall meet within 5 (five) days of such notice and negotiate in good faith to resolve such dispute.
2. Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to during their negotiation, the parties will resolve the dispute through arbitration as set forth herein below.
3. The arbitration will be held in Pretoria, Gauteng, South Africa. 
4. The arbitration shall be conducted in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa (“AFSA”) before a single arbitrator.
5. The parties shall endeavour to reach agreement on the identity of the arbitrator provided that, if they are unable to agree to the appointment of the arbitrator within 10 (ten) business days of either party writing to the other, requiring such agreement, the chairperson of AFSA will appoint an arbitrator whose appointment shall be final.
6. The award rendered by the arbitrator shall be final, and the judgment may be entered upon in terms with the applicable law in any court.
7. The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.

18.SERVICE ADDRESS

Each of the parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from these Terms at their respective email addresses.

19.GENERAL

1. No alteration, cancellation, variation of, or addition to these Terms shall be of any force or effect unless reduced to writing and signed by all Parties to these Terms or their duly authorised representatives.
2. These Terms cancel and supersede the terms and conditions of all prior negotiations and agreements between the Parties.
3. This document (together with the policies and procedures of the Studio as contemplated in clause 14 above) contains the entire agreement between the Parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded or referred to herein.
4. No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights an enforcing the obligations of the other Party in terms hereof.
5. The rule of construction that these Terms shall be interpreted against the Party responsible for the drafting or preparation of these Terms, shall not apply.
6. These Terms shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. 
7. The expiration, cancellation or other termination of these Terms shall not affect those provisions of these Terms as expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.
8. Each and every provision of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) shall be deemed to be separate and severable from the remaining provisions of the agreement.  If any of the provisions of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of these Terms shall be and remain of full force and effect.

Addendum 1

Discovery Physical Activity Questionnaire