WARNING: READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF LIABILITY AND AGREEMENT TO INDEMNIFY. BY SIGNING THIS AGREEMENT, YOU ARE ASSUMING RISKS AND GIVING UP LEGAL RIGHTS. DO NOT SIGN THIS AGREEMENT UNLESS YOU HAVE READ IT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ITS TERMS. SEEK THE ADVICE OF LEGAL COUNSEL IF YOU ARE UNSURE OF THE EFFECT OF THIS AGREEMENT.
RELEASE OF LIABILITY, ASSUMPTION OF RISK
AND AGREEMENT TO INDEMNIFY
(Referred to herein as the “Agreement”)
The individual named below (referred to as “I,” “me,” or “Visitor”) desires to participate in the Activity (as defined below) provided by Climb Iowa, L.L.C., a limited liability company organized and operating pursuant to the laws of the State of Iowa (the “Company”), with facilities located at 3605 SE Miehe Dr, Grimes, Iowa and 150 East 4th street, Des Moines, Iowa (such locations collectively referred to herein as the “Premises”).
As lawful consideration for being permitted by the Company to participate in the Activities, I agree to all the terms and conditions set forth in this Agreement.
For purposes of this Agreement, the Activities include, but are not limited to: top-rope climbing, lead climbing, bouldering, rappelling, lowering, belaying, spotting, yoga, training and conditioning (including, without limitation, the use of weights and fitness equipment), the use of any facilities and equipment located on the Premises, as well as simply being on and moving around and about the Premises (the “Activity” or “Activities”). Activities may occur inside the Premises, and outside of and adjacent to the Premises.
The risks of a visit to the Premises, whether or not a Visitor is engaged in the Activities, includes, without limitation: (a) falling or slipping from any surfaces at the Premises; (b) colliding with, hitting, or being hit by objects that include other persons, ropes, webbing, dropped items, climbing holds, projections, mats, the floor, the ground, or any other objects; (c) abrasion or entanglement with ropes, webbing, gym mats or other objects; (d) the use and misuse of ropes, belay devices, auto-belay devices, slings, harnesses, climbing hardware, anchor points, or any part of the climbing wall, bouldering structure, rappelling tower, or Premises; (e) falls, slips, trips and other trauma while moving about and using any part of the Premises; (f) the failure or malfunction of any equipment, machines, devices or other objects; (g) the carelessness of other visitors, observers, and Company staff; and (h) delayed, insufficient, or negligent response by emergency personnel or the rescue operations of the Company.
The risks described above, and others, are inherent in the Activities and cannot be eliminated without destroying the basic nature of the Activities and reducing their appeal and value. These and other risks may result in all manner of injury, including slight injury or serious bodily injury, temporary or permanent disability, paralysis, death, loss or damage to property, illness, or anxiety caused by heights, and other phobias.
ASSUMPTION OF RISKS
I UNDERSTAND THE ACTIVITIES, THE RISKS DESCRIBED ABOVE, AND THAT OTHER RISKS MAY BE ENCOUNTERED THAT HAVE NOT BEEN LISTED. I AM AWARE AND UNDERSTAND THAT THE ACTIVITIES ARE DANGEROUS, REQUIRE HEAVY PHYSICAL EXERTION AND INVOLVE THE RISK OF SERIOUS INJURY AND/OR DEATH AND/OR PROPERTY DAMAGE. I ACKNOWLEDGE THAT ANY INJURIES THAT I SUSTAIN MAY BE COMPOUNDED BY NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF THE COMPANY.
I ACKNOWLEDGE THAT I AM VOLUNTARILY PARTICIPATING IN THE ACTIVITIES WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY THE NEGLIGENCE OF THE COMPANY OR OTHERWISE.
RELEASE AND INDEMNITY
I hereby expressly waive and release any and all claims, now known or hereafter known, against the Company and the owners of the Premises and the land upon which the Premises sit, and their officers, directors, employees, agents, affiliates, successors, and assigns (collectively, “Releasees”), arising out of or attributable to my participation in the Activities, whether arising out of the negligence of the Company or any Releasees or otherwise. I covenant not to make or bring any such claim against the Company or any other Releasee, and forever release and discharge the Company and all other Releasees from liability under such claims.
I shall defend, indemnify, and hold harmless the Company and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by/awarded against indemnified party, arising out or resulting from any claim of a third party related to the Activities.
This Agreement constitutes the sole and entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The terms of this agreement cannot be altered except by a written document signed by the parties.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is binding on and shall inure to the benefit of the Company and me and our respective successors, heirs, executors, administrators, family members and assigns. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction). Any claim or cause of action arising under this Agreement may be brought only in the federal and state courts located in Polk County, Iowa and I hereby consent to the exclusive jurisdiction of such courts.
REPRESENTATIONS AND WARRANTEES
I represent, warrant and agree to the following:
- That I am in good health, have no condition (mental or physical) that might create risks to myself or others, and that I am not under the influence of drugs or alcohol or any substance that might in any way impair my ability to engage in the Activities.
- That I will be attentive to the proper use of all equipment.
- That I will not engage in any activity beyond my capabilities or otherwise endanger myself or others while engaging in the Activities.
- That I have read and understand and will fully comply with all the Gym Rules and Policies of the Company, copies of which are available from any staff member of the Company or at ClimbIowa.com/GymRules.
- That I authorize any medical treatment which the Company’s staff deems necessary in the event of an injury or illness to me and agree to pay all costs of any emergency services, including medical expenses, transportation, and any other expenses incurred on my behalf.
- That any film or photograph of me taken by the Company at the Premises becomes the property of the Company and may be used for promotional or commercial purposes without compensation to me.
- That this agreement is continuing in nature and will govern my visits to the Premises unless and until it is replaced by a subsequent agreement, which will apply to visits thereafter.
These representations, warrantees and agreements will apply to future visits to the Premises, unless I notify the Company otherwise on the occasion of those visits.
BY SIGNING, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY. I UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY.
I REPRESENT, UNDER PENALTY OF FRAUD, THAT I AM AT LEAST 18 YEARS OF AGE, OR THAT I AM THE PARENT OR LEGAL GUARDIAN OF A MINOR VISITOR. I UNDERSTAND THAT IF I MISREPRESENT MY AGE OR MY AUTHORITY AS PARENT OR LEGAL GUARDIAN, I WILL BE CONSIDERED A TRESPASSER ON THE PREMISES AND AGREE TO PROTECT AND INDEMNIFY THE COMPANY FROM ANY AND ALL CLAIMS IN ANY WAY TO THE VISIT.