reference is just kind of in passing and it doesn't address what i think is the substance of the affidavit changing circumstances under which this particular membership agreement was executed i his understanding was is that it was limited to the ending to the piece to the fees exactly now taking the first part of yesterday he didn't read it was that the first why in my view it is material to the issues to consider a poll that's labeled as the membership agreements in the fitness services agreement is because even though these are two different forms  as i've argued i believe that both of them are nice point this out in the brief you know contains many of the same you know ambiguities and so to the extent that there was an opportunity that one would argue or the defects would be cured if you just accept for the purposes of this discussion you know the argument that we are asserting distinction in mr hussein's case in the l a fitness agreements as is the case in all of the cases which have examined or manse these types of agreements and the waiver of liability i mean this is based the same language that was in the minnesota case it's very very similar i would agree with that however if the press have some language that's being flutes l a fitness negligence excuse me whether crossbred the negligence of members or otherwise and i have questioned in the brief and would reiterate that here what is meant by otherwise whether that refers to a member's negligence l a fitness is negligence or some undefined third party or other circumstance well what about the fact that it's it's in a box it's it's in a it's in a larger font than everything else on the identified within the body of the agreement in a manner that will drop off tension to the prospective member so that they are understanding that in addition to the other provisions that they might  strictly construed against traffic that is correct and you are taking the fifth minute so that cases really suggest that this particular provision is ambiguous i would suggest to you the answer would be premises or in any way observing or using any facilities or weapon of l a fitness whether caused by negligence a member otherwise and then it says maybe it was before th meant way to the fullest extent permitted by law we i mean there's clauses similar to that in other cases here in minnesota and illinois that don't really say that this language this particular exculpatory language just being defined by the second here the second part of this release which pertains to the members health certification that they've the reason the court considered this affidavit and didn't need to cite it other than once in a footnote is it really doesn't change it it doesn't change the fact that it doesn't make this this language an ambiguous he hasn't said he didn't understand anything if you where where are we on this even if we look at objective we speaking under the case so many other upheld exculpatory clauses use the exact same language in minnesota that again if there is no ambiguity  i like to think about how i would argue it from the other side say for instance that local law intentional conduct was not illegal to contract or wave away and in a case if i was trying to do this with the same agreement i was trying to say language is what or what are we trying to do in this case we only have one count i'm quite clear negligence this this contract is being used just to i'm for the exculpatory clause against that so what i try to do anything other than that foreseeability of injuring oneself during the course of the exercise routine is much more play than most of the cases that we see the same sort of  and this is the one that your honor mentioned two opposing counsel and then that refers you to the second page which has the very large block in the very dark letters and the word important as your honor pointed out as well so it's mentioned twice on the other page and then it's certainly highlighted on the second page and i think the trial court had it right and i think i'd really like paul from trial for in the lawrence mills case that we see little merit in the argument referring to the not being able to refer to the other side at the same time to look at the front on the face of the order form directly above the signature of defendant's representative peers a statement that the order is subject to the terms and conditions on  judge and i think that that same logic is here we live in a society where lawyers require us to put so many things in a contract to make them valid and at the same time then we're attacked for putting too much because it can't be put on one page in large font i don't know if i think we're stuck between a rock and a hard place we try to include the language that up as time tested by the courts we try to make it as clear as possible again in this case there's no evidence before the current that there was any  any confusion on the part of the point that that's the thing that he is missing in his affidavit he just doesn't say it's not helpful and that's probably why the court didn't talk about it a lot in coming to  for payment terms well that's something to do people are concerned about i didn't they didn't show me the payment information there's not a contract that has just one one clause i mean you have to have you have to address the whole war in one agreement otherwise then we're again fighting the fact that you've you've separated things out and that creates confusion so i think it's kind of at the end of we're do damned if we don't kind of situation in this case i think what was done was the best thing that could be done under the circumstances and we don't have no information in the court to not either before us that there was any confusion created on this and that there is no case law that supports the issue of the second page the fact that their signature comes in the in the middle of the second page i don't see a single case with that has a signature controlling you know it is incumbent upon anyone who enters into a context to read the terms and to understand terms be comfortable with the terms that's the beauty of our freedom to contract in this country and it needs to be protected  we know that joining a gym membership is not going to sesame or a luxury or any any of those things that we need to be protected public from it's something that could benefit somebody but it's also it's also an activity that can be taken on in any other way maybe not running outside on a day like today but i don't there are other things that can be done so if you want to engage in this activity and you want to come on this premises you need to be aware of what you're entering into you know just a question when we go to a case i says that if you don't read it you're responsible for it in this case there's no indication that he he read it or that he didn't read it in this case i don't think that there is i've never seen any requirement in law that there needs to be a check and end up in a box  it's a two page agreement last time i came home from my closing i was carrying a read well all documents that went through and maybe those important terms when you're typing legal size and you've got minutes before as in you need to make sure they're insulating themselves too probably from similar types of things we're talking a two page agreement referenced twice on the first page and right there huge and the second page so no you're right and that when you go down that road that we need to take a crayon to every single provision and put a stamp on it or put a check on it i just don't think that i think we're all adults in this society and we have to take responsibility to this level which is so minor bike repair to my paperwork that set a closing of i think an important difference  for our time to become adults so we can control our lives and think for ourselves each adult citizen has a right to make choices that are in their own economic and personal interests you know as an adult so i look this up we have about a thousand waiting minutes per day and it's estimated even that won't use the same word otherwise it really doesn't create any a malacca notes that the words permanent waiver appearing capital letters at the bottom of the printed page following the signature line so there's an emphasis with respect to the exculpatory language in relation to where the the  then your attention is directed to that particular area and you have taken the consideration you know that if they activities we as human beings in the circumstances under which these  that they'll find themselves in a situation in another lawsuit where they're litigating over a member straight to cancel and if they didn't put the numbers right to cancel mediately above the signature black enterprising attorney would be operational liability to be set forth in a type sets a home which is prominence that would identify a location or at least a signature it or initials and  paid and two they don't want to get sued it doesn't take too much to reformat this agreement to put both of those clauses prominently on the front of the agreement well but the real issue is court about two or otherwise which i think does relate some question ambiguity i do believe that the second part of the exculpatory language which references the fact that you've consulted with a doctor and that you're