PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SIGNING.
THIS AGREEMENT CONTAINS A RELEASE OF LIABILITY AND A WAIVER OF CERTAIN LEGAL RIGHTS, INCLUDING BUT NOT LIMITED TO AN AGREEMENT TO ARBITRATE.
In consideration of being allowed to participate in and observe activities at, and to use the facilities, firearms and equipment of Wilshire Gun, LLC, an Oklahoma limited liability company, located at 615 W. Wilshire Blvd., Suite 1400, Oklahoma City, OK 73116 (“Wilshire Gun”), I (“I” or “Participant”), for the benefit of Wilshire Gun, and its respective affiliates, shareholders, partners, managers, officers, members, employees, agents, attorneys, contractors, representatives, lessors, lessees, parents and subsidiaries (collectively, the “Wilshire Parties”), hereby acknowledge my voluntary agreement to engage in activities at Wilshire Gun and to use the facilities, firearms and equipment of Wilshire Gun and/or the Wilshire Parties (collectively, the “Facilities”), subject to the following terms and conditions (the “Release”):
1. ASSUMPTION OF RISK. BY EXECUTING THIS RELEASE, I ACKNOWLEDGE AND AGREE THAT SHOOTING SPORTS, ARCHERY, SELF-DEFENSE TRAINING, PAINTBALL GAMES, OR ANY OTHER ACTIVITIES THAT I MAY ENGAGE IN OR OBSERVE AT THE FACILITIES, WHETHER SPONSORED, HOSTED OR INSTRUCTED BY WILSHIRE GUN OR THE WILSHIRE PARTIES OR NOT (COLLECTIVELY, THE “ACTIVITIES”) ARE INHERENTLY HAZARDOUS AND INVOLVE BOTH KNOWN, UNKNOWN AND UNANTICIPATED RISKS WHICH COULD RESULT IN DAMAGE OR DESTRUCTION OF PROPERTY AND SERIOUS PHYSICAL, PSYCHOLOGICAL OR EMOTIONAL INJURY, INCLUDING BUT NOT LIMITED TO PERMANENT DISABILITY, PARALYSIS OR DEATH, TO MYSELF OR OTHER PERSONS, INCLUDING FURTHER INJURY OR DAMAGE SUSTAINED AS A RESULT OF EFFORTS OF THIRD PARTIES WHO MAY COME TO MY AID. I EXPRESSLY ACKNOWLEDGE THAT SERIOUS ACCIDENTS MAY OCCUR WHILE PARTICPATING IN OR OBSERVING THE ACTIVITIES.
I understand that my presence in and use of the Facilities, whether by engaging in or observing the Activities, exposes both Participant and Participant’s property to dangerous conditions, risks and hazards, including but not limited to: shooting myself or others, being shot by others, partial or total loss of eyesight or hearing, equipment failure or breakdown, accident or illness without access to availability of medical supplies or treatment, trauma, burns, abrasions, amputation, paralysis, brain injuries, spinal injuries, or other injuries resulting from the normal and abnormal operation of firearms, ammunition, archery and paintball equipment, inhalation or other harmful contact with lead or other contaminants containing toxic materials, which may cause or contribute to illness, disease or other short- or long-term terminal injury or ailment, being struck by flying, ricocheting or falling debris or projectiles, misfires or malfunctions of firearms, ammunition, archery or paintball equipment, and to the intentional or negligent acts or omissions of other participants. If I am pregnant and engage in or observe the Activities, I understand all of these risks may result in harm to both myself and to my fetus. I understand that alcohol may be available at the Facilities, and that consumption is strictly voluntary.
I HEREBY EXPRESSLY ACKNOWLEDGE THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH MY PARTICIPATION IN THE ACTIVITES, MY USE OF THE FACILITIES AND OF FIREARMS (WHETHER AS A PARTICIPANT IN OR AN OBSERVER OF THE ACTIVITIES), WHETHER HEREIN DESCRIBED OR NOT, AND I FREELY ACCEPT AND ASSUME ANY AND ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND ANY OTHER LOSS RESULTING THEREFROM.
2. RELEASE AND INDEMNIFICATION. I, on behalf of myself, my next of kin, heirs, guardians, representatives, agents, affiliates, guests, employees, agents, executors, administrators, successors and assigns (collectively, the “Participant Parties”), FOREVER RELEASE THE WILSHIRE PARTIES FROM ANY LIABILITY FOR DAMAGES OR INJURIES TO THE PERSON AND/OR PROPERTY OF THE PARTICIPANT PARTIES OCCURRING IN OR ABOUT THE FACILITIES. CUMULATIVE OF THE FOREGOING, I AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS EACH OF THE WILSHIRE PARTIES FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS, LIABILITIES, DAMAGES, INJURIES, LOSSES, ATTACHMENTS OF PROPERTY OR LIABILITIES OF ANY KIND WHATSOEVER, AT COMMON LAW, STATUTORY OR OTHERWISE, AND ANY AND ALL EXPENSES OR COSTS OF WHATEVER NATURE ARISING THEREFROM, INCLUDING COSTS OF LITIGATION, ATTORNEYS’ FEES, EXPERT FEES, AND ALL REASONABLE EXPENSES IN CONNECTION THEREWITH (COLLECTIVELY, THE “CLAIMS”), THAT I OR THE PARTICIPANT PARTIES MAY HAVE FOR PROPERTY DAMAGE, PERSONAL INJURY, DEATH OR ANY OTHER CAUSE OF ACTION ARISING OUT OF, ASSOCIATED WITH, OR RESULTING FROM MY ENGAGING IN OR OBSERVING THE ACTIVITIES AT OR IN THE FACILITIES, MY USE OF FIREARMS AT OR IN THE FACILITIES, WHETHER SUCH FIREARMS BELONG TO MYSELF, WILSHIRE GUN, THE WILSHIRE PARTIES, OR ANY OTHER PARTY, MY USE OF THE FACILITIES, AND ANY NEGLIGENT OR OMITTED FIRST-AID OR RESUE OPERATIONS OR PROCEDURES.
I EXPRESSLY CONFIRM THAT IT IS MY INTENT THAT ALL INDEMNITY OBLIGATIONS AND LIABILITIES ASSUMED BY PARTICIPANT UNDER THE TERMS OF THIS RELEASE SHALL BE WITHOUT MONETARY LIMIT AND THAT BY EXECUTING THIS RELEASE, I EXPRESSLY AGREE TO RELEASE AND INDEMNIFY THE WILSHIRE PARTIES FROM AND AGAINST THE CONSEQUENCES OF THE WILSHIRE PARTIES’ OWN NEGLIGENCE (WHETHER SUCH NEGLIGENCE IS ACTIVE OR PASSIVE AND WHETHER SUCH NEGLIGENCE IS THE SOLE PROXIMATE CAUSE OR A PROXIMATE CAUSE JOINTLY AND CONCURRENTLY WITH THE NEGLIGENCE OF A PARTICIPANT OR OTHERS) RESULTING IN THE DAMAGE, INJURY OR DEATH TO THE PERSON AND/OR PROPERTY OF PARTICIPANT OR THE PARTICIPANT PARTIES.
THE OBLIGATIONS TO RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE WILSHIRE PARTIES SHALL APPLY EVEN IF THE LOSSES ARE CONTRIBUTED TO OR CAUSED BY THE SOLE, JOINT, COMPARATIVE, CONTRIBUTORY, OR CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FAULT OR STRICT LIABILITY OF THE WILSHIRE PARTIES, WHETHER OR NOT SUCH CLAIMS SHALL BE VALID OR GROUNDLESS, OR ANY BREACH OF ANY COVENANT OR AGREEMENT OF PARTICIPANT HEREUNDER, EACH TO THE EXTENT THAT SUCH CLAIM RESULTS PARTIALLY OR WHOLLY FROM ANY ACT OR OMISSION OF PARTICIPANT, INCLUDING, WITHOUT LIMITATION, ANY NEGLIGENT OR GROSSLY NEGLIGENT, INTENTIONAL, RECKLESS, WANTON OR WILLFUL ACT OR OMISSION OF THE PARTICIPANT PARTIES, OR ANY ACT OR OMISSION THAT WOULD SUBJECT PARTICIPANT TO STRICT LIABILITY. BOTH PARTIES ACKNOWLEDGE THAT THE RELEASE AND INDEMNITY PROVISIONS CONTAINED IN THIS RELEASE ARE CONSPICUOUS AND AFFORD FAIR AND ADEQUATE NOTICE. I AGREE THAT THE RELEASE AND INDEMNIFICATION PROVISIONS OF THIS SECTION 2 ARE BINDING UPON MY SUCCESSORS AND ASSIGNS AND MY ESTATE, AND THAT THE PROVISIONS OF THIS SECTION 2 COVER ALL CLAIMS FOR WRONGFUL DEATH UNDER ANY APPLICABLE LAW.
3. MEDICAL CERTIFICATION. I certify that I have no medical, physical, psychological or emotional conditions that will or could interfere with my safety and the safety of others in connection with my engagement in or observation of any Activities. I am of sound mind, mentally competent, and have the requisite health and fitness to engage in and/or observe the Activities. I further certify that I have adequate insurance coverage, whether through an insurance policy or self-insurance, to cover any injury or damage I cause or suffer in connection with my engagement in or observation of the Activities. In the event that I do not have such adequate insurance coverage, I agree to completely bear the cost of any such injury or damage. In the event that I (i) am pregnant or become pregnant; or (ii) develop any medical, physical, psychological or emotional conditions that might or could interfere with my safety and the safety of others in connection with my engagement in and/or observation of any Activities, I certify that I will consult with a physician before participating in or continuing to participate in any Activities.
4. SAFETY RULES AND EQUIPMENT. I agree (i) to abide by all written, video, audio, online, posted and verbally issued safety rules or instructions issued by Wilshire Gun and its instructors, range masters, safety officers, agents or employees; (ii) that, in order to safely engage in or observe the Activities, proper safety equipment is required; including, without limitation, appropriate eye and hearing protection and proper clothing and footwear; (iii) that I will supply, and at all times properly use, appropriate safety equipment; and (iv) that I will not engage in or observe any Activities, including but not limited to handling or operating any firearm, while under the influence of drugs or alcohol.
5. ELIGIBILITY TO OWN AND USE FIREARMS. I certify that I meet the requirements of all federal and state statutes, rules and regulations which regulate my ability to purchase, own, use or possess firearms, and that I (i) am not under indictment or information in any court for a felony, or any other crime punishable by imprisonment for a term exceeding one year; (ii) have never been convicted in any court of a felony, or any other crime punishable by imprisonment for a term exceeding one year; (iii) am not a fugitive from justice; (iv) am not an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance; (v) have never been adjudicated mentally defective or been committed to any mental institution; (vi) have not been discharged from the Armed Forces under dishonorable conditions; (vii) am not subject to a court order restraining me from harassing, stalking or threatening my child or an intimate partner or child of such partner; (viii) have never been convicted in any court of a misdemeanor crime of domestic violence; (ix) have never renounced my United States citizenship; (x) am not an alien who is illegally in the United States or under a nonimmigrant visa that fails to meet the qualifications for purchasing, receiving, or possessing a firearm under Federal law. I further certify that if at any time in the future I become subject to any of the requirements set forth in this Section 5, I will promptly notify Wilshire Gun.
6. BACKGROUND CHECK REQUIREMENT. I understand that Wilshire Gun requires each participant over the age of eighteen (18) to provide a valid form of identification on each visit to Wilshire Gun, and that I am subject to this requirement. In order to verify the requirements set forth in Section 5 above, and as consideration for my eligibility to use the Facilities and engage in and/or observe the Activities, Wilshire Gun reserves the right to conduct a Public Records Criminal Background Check (the “Background Check”) on each Participant aged eighteen (18) and over. Any such Background Check shall be used solely for the purpose of ascertaining Participant’s eligibility to own, use or possess firearms. All Background Check results will be reviewed only by the Wilshire Parties and will be kept confidential. Wilshire Gun will not maintain any records of Background Checks other than a record that a Background Check has been completed and the success or failure of same. Background Check results that reasonably indicate that Participant is not eligible to own, use or possess a firearm will result in a denial of access to Wilshire Gun. Participants who present a current and valid concealed handgun license or license to carry shall not be subject to Background Checks. By acknowledging this Release, I hereby authorize and consent to Wilshire Gun’s performance of Background Checks.
7. CONSENT TO PAT-DOWNS. I understand that in all persons entering Wilshire Gun’s simulation room are required to be searched by a physical pat-down, and that if I refuse such a pat-down, I will not be allowed to enter the simulation room. If the Wilshire Gun representative conducting the search determines the need for further examination, I will be escorted to a secondary screen area where I will be required to empty my pockets and remove any belt and/or jacket. In the event that prohibited items are revealed during this search, Participant will be permitted to return to his or her vehicle with the item(s) or the item(s) will be confiscated. Wilshire Gun will not safeguard any personal belongings or other items.
8. NO WARRANTIES. I acknowledge and agree that Wilshire Gun and the Wilshire Parties make no warranty, express or implied, as to the safety, design, manufacture, maintenance, condition or fitness for any particular purpose of the Facilities, Activities, equipment or any improvements thereon, including, without limitation, firearms, ammunition, eye protection, hearing protection, first-aid supplies, target and tactical simulation systems, and HVAC and air filtration systems. I will not operate any firearms or equipment with which I am not completely familiar without first engaging the assistance and/or training of the appropriate Wilshire Gun personnel.
9. SEVERABILITY. If any term or other provision of this Release is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced for any reason, all other terms or provisions of this Release shall remain valid and continue in full force an effect.
10. DISPUTE RESOLUTION. In the case of any dispute, claim or controversy arising out of or relating to this Release or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (each, a “Dispute”), the parties shall first make an earnest effort to settle such Dispute to their mutual satisfaction. In the event that such Dispute cannot be reconciled by the parties within fifteen (15) days of the initial notice of the Dispute, then any party may provide written notice to the other party specifying with particularity the items of disagreement and a request that the matter be resolved by mediation (the “Mediation Notice”). Such Mediation Notice shall include the name of a mediator who practices in Oklahoma County, OK, who is acceptable to the party requesting the mediation. If the Dispute is not resolved by mediation to the mutual satisfaction of the parties within forty-five (45) days of the Mediation Notice, or if the parties are unable to agree on a mediator within thirty (30) days of the Mediation Notice, then any Dispute shall be determined by binding arbitration before one arbitrator in Oklahoma City, OK. The parties shall mutually select the arbitrator; in the event that the parties cannot agree on an arbitrator within fifteen (15) days following the filing of the arbitration demand, the AAA shall select the arbitrator. The arbitration shall be administered American Arbitration Association (the “AAA”), pursuant to the AAA’s Commercial Arbitration Rules. Each party shall bear its own costs of arbitration, including all attorneys’ fees, costs and expenses resulting therefrom.
11. GOVERNING LAW AND VENUE. I agree that this Release shall be governed by, construed and enforced in accordance with the laws of the State of Oklahoma, without regard to conflicts of laws principles. In the event that arbitration is disallowed for any reason, I hereby irrevocably submit to the exclusive jurisdiction of any federal or state court located within Oklahoma County, OK over any Dispute and irrevocably agree that all claims in respect of such Dispute shall be heard and determined exclusively in such courts. I further hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which I may now or hereafter have to the agreed venue of such Dispute brought in such court or any defense of inconvenient forum for the maintenance of such Dispute. I agree that a judgement in any such Dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. In the event that a Dispute is resolved in federal or state court as described in this Section 11, each party shall bear its own costs of litigation, including all attorneys’ fees, costs and expenses resulting therefrom.
12. BINDING FUTURE EFFECT; TERMINATION; ELECTRONIC COPIES. I agree that, for my own convenience, this Release shall be effective and apply to all of my present and future (i) use of the Facilities; and (ii) engagement in and/or observation of any Activities at Wilshire Gun. While this Release shall remain effective for all of my uses of the Facilities or participation in and/or observance of the Activities until either party revokes this Release in writing, nothing in this Release shall be construed as a continuing license to Participant to use the Facilities or engage in or observe Activities. This Release may be executed by handwritten or electronic signature, and by facsimile or email, each of which shall be an original of this Release.
13. PHOTOGRAPHIC AND FILM RELEASE AND EMAIL MARKETING. Participant understands that Wilshire Gun and the Wilshire Parties reserve the right to take photographic or film records of Participant during Participant’s use of the Facilities, or engagement in and/or observation of the Activities, and Participant hereby agrees that Wilshire Gun and the Wilshire Parties may use any such photographic or film records for promotional and/or commercial purposes as well as approve such use by third parties with whom Wilshire Gun or the Wilshire Parties may partner for a joint marketing effort, and that Wilshire Gun and the Wilshire Parties shall not owe Participant or its heirs, successors and assigns any compensation for such use. Participant understands that Wilshire Gun and the Wilshire Parties reserve the right to maintain email addresses and utilize them for email marketing campaigns from Wilshire Gun.
14. POSTED RULES. Participant agrees to observe and obey all rules, warnings and instructions given by any of the Wilshire Parties.
15. KNOWING AND VOLUNTARY EXECUTION. BY EXECUTING THIS RELEASE, I REPRESENT AND WARRANT THAT (A) I HAVE HAD THE OPPORUTNITY TO READ AND UNDERSTAND THIS RELEASE, AND I HAVE DONE SO; (B) I UNDERSTAND AND VOLUNTARILY AGREE TO EACH TERM OF THIS RELEASE, AND I UNDERSTAND THAT THIS IS A FULL RELEASE OF THE WILSHIRE PARTIES, AS DEFINED IN THIS RELEASE; (C) I AM UNDER NO DURESS OR REQUIREMENT TO SIGN THIS RELEASE, NOR AM I REQUIRED TO USE THE FACILITIES OR ENGAGE IN AND/OR OBSERVE ANY ACTIVITIES; (D) NO REPRESENTATIONS OR STATEMENTS HAVE BEEN MADE TO ME ABOUT THE SAFETY OF THE FACILITIES OR ACTIVITIES, INCLUDING BUT NOT LIMITED TO THE QUALITY OR SUITABILITY OF THE FACILITIES OR THE IMPROVEMENTS LOCATED THEREON; (E) I HAVE NOT BEEN INDUCED TO SIGN THIS RELEASE BY THE STATEMENT OR CONDUCT OF ANY PERSON; (F) I AGREE THAT EACH TERM OF THIS RELEASE IS THE PRODUCT OF AN ARMS’ LENGTH TRANSACTION AND THAT EACH PROVISION SHALL STAND ALONE IF ANY PROVISION IS DEEMED INVALID OR UNENFORCEABLE; (G) I HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL REVIEW OF THIS RELEASE; (H) I HAVE THE MENTAL COMPETENCY TO UNDERSTAND AND ENTER INTO THIS RELEASE; AND (I) I SIGN THIS RELEASE OF MY OWN FREE WILL. I FURTHER UNDERSTAND THAT BY SIGNING THIS RELEASE, I VOLUNTARILY SURRENDER SPECIFIC LEGAL RIGHTS AND REMEDIES.
I Agree July 3, 2020