Consumer Law, Warranties Meeting Cancelation Requirements but still being charged?

[jeckert]

I am located in California (the gym in question is in San Diego).

Several months ago I signed a year contract with a personal training program, but have since had to move over 120 miles away to Los Angeles. When signing the contract I was under the impression that if I were to move, the contract could either be transferred to another gym, or canceled.
On attempting to cancel my contract, it appears that this is not the case.
The personal training company informed me that they were no longer in affiliation with the gym, and that the contract had been taken over by the gym itself. Had the contract still been with the training company, it would be voided without any fees.

I contacted the gym and explained my situation, and was told that I would be charged a 15% cancellation fee (over $400). I have paid over $200 to them already for sessions that I have not used, but that could not be subtracted from my total and could not be refunded.

Upon reviewing my contract it appears that in the Buyers Rights section, there are five situations that release me from my contract. Canceling the contract 5 business days after signing, dying, sustaining a physical disability, and the forth: permanent relocation to a residence over 50 miles away from the center. The fifth and final term allows me to cancel my contract after paying $250.00 or 15% of my contract price, whichever is greater.

Because these are separate terms, it would make sense that fulfilling one of the requirements (moving over 50 miles away) would cancel my contract, and therefore not require the $400+ cancellation fee, correct?

The person I spoke with acted like the $400 fee was a favor, and I was lucky for him to not charge me this month's dues as well, as it would take 30 days to process the whole thing.

I would like to present him with this information, but I would like to do so with confidence. Does he have the right to charge me the $400?

Thank you so much for your time, I appreciate any help you could offer.
I would be happy to post the terms of the Buyers Rights in detail, if that would be of any help.

 

[Michael Wechsler]

Unless you can paste the clause here or attach the entire agreement (omit personal details) it's impossible to say. I would expect what you say to be true, which is usual. If this gym assumed the contract then it is likely you haven't lost these termination rights.

 

[jeckert]

Sorry for the delay, thank you so much for replying.
I could scan it if you prefer, but here is the Buyer's Rights:
___

BUYERS RIGHTS
1. You may cancel this contract by sending notice of your wish to cancel to the Seller before midnight of the fifth business day after you sign the contract. "Business day" means Monday through Friday excluding state holidays and federal holidays. This notice must be sent certified mail to the following address [PINNACLE PERSONAL FITNESS... San Diego, etc]. Within thirty days of receipt of this notice, the Seller shall return any payments made and any note or other evidence of indebtedness. If you use the Seller's facilities or services the Seller may deduct a reasonable fee from the payments being returned based on the actual fee paid divided on a pro rata share by the number of days used by the Buyer.

2. In addition, you or your estate may also cancel the contract at any time by written notice to the center at the above address if the following circumstances occur:
A. The Buyer's Death
B. substantial physical disability, certified by a physian, which makes it permanently impossible for the Buyer to use the Seller's services.
C. the Buyer's permanent relocation to a residence over fifty miles distant from an outlet operated by the Seller, if the Seller is unable to arrange for the Customer's use of another center with equivalent major facilities and services.
The Seller may require presentation of information to substantiate that one of these circumstances has occurred. If the contract is canceled because of disability, death or permanent change of residency, the Seller shall return any note or other evidence of Indebtedness, and unearned prepayments as follows: For each month that the contract was in effect, the Seller is entitled to the rate a month or a treatment which it would have charged if the contract had initially been for the number of months or the number of treatments for which the contract was actually in effect. The rate is to be determined from a fee schedule in effect on the date of the contract.

3. The right of cancellation shall affect only the financial obligation under the contract and the Buyer's right to use the Seller's physical fitness services.

4. You may cancel this agreement at any time, provided your account is in good status, by providing a thirty (30) day written notice of cancellation, and paying a cancellation fee that is the greater of $250.00 or 15% of the total contract price.

_____

As Rights 2 and 3 are separate, does that mean that my contract is canceled by my moving over 50 miles away? And therefore I should not be required to pay the 15% stated in Right 4?
I do not want to confront the person I am handling this through (the manager, I believe) without knowing if I do in fact have the legal right to cancel without paying the 15%.
As I said before, when signing the contract I was under the complete impression that were I to move, the contract would then become void. However, as the person I signed the contract with (and the company I signed the contract through, for that matter,) are no longer a part of the gym, I have nothing to back this up with.

Again, I really appreciate your reply. I am quite nervous, and unsure as to how I should be handeling this, and what rights the contract gives me.