On August 8, 1998, the plaintiff, Elaine Exercise, entered into a contract with the defendant, Cosmopolitan Spa International, Inc "CSI". The contract was for a spa membership that was to include "processing, program counseling, and facilities usage."The written contract contained an exculpatory clause. The pertinent part of the clause stated, "Member fully understands and agrees that in participating in one or more of the courses, or using the facilities maintained by CSI, there is the possibility of accidental or other physical injury. Member further agrees to assume the risk of such injury and further agrees to indemnify CSI from any and all liability to CSI by either the Member or third party as the result of the use by the Member of the facilities and instructions as offered by CSI." On or around January 1, 2000, CSI sold the spa to Holiday Spa, Inc. On February 25, 2000, Elaine Exercise injured her back when she sat on an exercise machine and it collapsed under her. She brought suit against both CSI and Holiday for damages for personal injuries resulting from the defendants' negligence in properly maintaining the exercise machine. The defendants claimed that the exculpatory clause negated their liability. Elaine argued that Holiday could not use the exculpatory clause as a defense because it was part of a contract for personal services, and therefore the contract was not assignable.
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