CLIMBING CAN BE DANGEROUS
RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISK
TO: Markham Climbing Academy Corp. and 2315173 Ontario Inc. dba Hub Climbing (the “Company”) and its affiliates and their respective shareholders, directors, officers, employees, contractors and agents as well as the landlords of the premises located at 155/165 McIntosh Drive, Markham, Ontario and 3636 Hawkestone Road, Mississauga, Ontario, and their respective representatives (collectively, the “Releasees”)
In consideration for the Company allowing me to attend its indoor wall climbing and recreational facilities located at 165 McIntosh Drive, Markham, Ontario and 3636 Hawkestone Road, Mississauga, Ontario (the “Facilities”) and to perform route setting and other services at such Facilities and/or to participate in or observe the activities available at such Facilities including, but not limited to, climbing walls up to 50 feet in height, rope climbing, bouldering, lead climbing, down-climbing, weight lifting, fitness training, yoga as well as activities that may take place off the premises (collectively, the “Activities”) and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I, the undersigned, on my behalf and on behalf of my heirs, executors, administrators, personal legal representatives, assigns and next of kin (collectively, my “Legal Representatives”), covenant and agree as follows:
ACKNOWLEDGMENT OF RISKS. I understand that there are significant risks and dangers, both known and unknown, in performing services, participating in and/or observing the Activities. A partial list of the risks and dangers include: dehydration; oxygen shortage (anoxia); slips, trips, falls and/or collisions; failing holds, ropes, harnesses and other equipment or items; abrasions from the walls, ropes, pads or the floor; entanglement with ropes or equipment; defective flooring or landing pads; and equipment failure including loose or damaged holds or worn or defective ropes or safety devices. I understand that the presence of safety equipment will not eliminate all risks and dangers (for example, people can and do get injured by falling even though they may land on foam floors). The said risks and dangers may be affected by a number of factors including, but not limited to: a participant’s physical strength, coordination or sense of balance; his or her experience and training climbing; the experience, training, judgement and acts or omissions (including, but not limited to, dropping the rope or failing to verify one’s harness and/or knot) of his or her belayer (which is an individual who secures a climber through the use of a climbing rope); acting within one’s own ability; wearing a helmet; the proximity of medical care; compliance with the rules and regulations of the Facilities (the “Rules”); compliance with the instructions of the Company’s employees; and the negligence or intentional acts or omissions of others including, but not limited to, other participants, observers or any of the Releasees.
I understand that performing services, participating in and/or observing the Activities or attending at the Facilities may increase the risk of contracting COVID-19 through coming into contact with or exposure to other people at the Facilities, by touching the surfaces or equipment at the Facilities or otherwise. The risk of contracting COVID-19 may be affected by: wearing personal protective equipment such as a mask and gloves; compliance with facility rules; and compliance with government regulations and guidelines as they relate to COVID-19.
I acknowledge that such risks and dangers may cause serious injury, illness or even death and that personal property which I bring to the Facilities can be lost, stolen or damaged and that the foregoing can occur by accident, through negligence or even intentionally.
ASSUMPTION OF RISK AND RESPONSIBILITY. My attendance at the Facilities and performance of services or participation in and/or observance of the Activities is voluntary and I fully assume the risk of any personal injury, illness or death occurring to me and the risk that any of my personal property is lost, stolen or damaged even if such injury, illness, death, loss or damage is caused by the negligence or willful acts or omissions of any of the Releasees or any other person and whether same occurs while participating in or observing the Activities or in any other area of the Facilities (such as the entrances, exits or washrooms) or outside of the Facilities (such as on the sidewalks or parking areas).
WAIVER AND RELEASE. I hereby waive all rights to make or bring any claims, demands, actions, suits or proceedings (collectively, “Claims”) which I or my Legal Representatives have or may in the future have against the Releasees (or any of them) and hereby release and forever discharge the Releasees (and each of them) from any and all Claims and liability for or in respect of any illness, injury, death, property damage, loss, cost or expense suffered or incurred as a result of or related to my performing services or participating in or observing the Activities or attending at the Facilities, due to any cause whatsoever including, but not limited to, negligence, wilful acts or omissions, breach of contract or breach of any statutory or other duty of care by any of the Releasees or any other person.
I also hereby waive all rights and hereby release and forever discharge the Releasees (and each of them) from any and all Claims and liability for or in respect of any COVID-19 related illness, infection, personal injury, or death as a result of or related to my performance of services or participation in the Activities or my attendance at the Facilities due to any cause whatsoever.
INDEMNITY. In the event that: (a) I cause or contribute in any way to the injury, illness or death of any person who is at the Facilities or to the damage or loss of any property at the Facility, and/or (b) any Claims are made or brought against the Releasees (or any of them) in connection with any matter hereinbefore released; I shall indemnify and hold harmless the Releasees (and each of them) from and against any and all resulting or related Claims, liabilities, judgements, costs and/or expenses (including lawyer’s fees and disbursements).
HEALTH AND SAFETY MATTERS. I have no illnesses, disabilities or other conditions that prevent me from safely performing services or participating in the Activities. If any such conditions arise in the future, I will consult with a physician before participating in any Activities. I will abide by the Rules at all times while at the Facilities. Without limiting the generality of the foregoing, I acknowledge that the use of drugs, alcohol or other controlled substances while participating in the Activities is strictly prohibited.
My participation in the Activities and/or access to the Facilities may be restricted or suspended as the Company deems necessary if: I have COVID-19; I have any symptoms related to COVID-19; the Company suspects that I may have COVID-19; or any other factors exist which cause the company to be concerned about COVID-19 as it relates to myself or others.
ACKNOWLEDGMENT RE SELF-SUPERVISION. I acknowledge that the Facilities operate on a self-supervision basis (meaning that the Company’s employees will not be supervising me while I am at the Facilities). I understand that the Company does offer orientation and training to all visitors to learn proper falling techniques, etiquette and other Rules. Further, I understand that the Company’s staff are available to help and assist, but even though staff are present or may provide me with assistance, the staff will not directly supervise me while at the Facilities. I agree with the Company’s self-supervision policy and acknowledge that I will be participating in the Activities at the Facilities without staff supervision. I acknowledge that it is my responsibility to ask for help when needed, to follow the Rules and to stop participating in the Activities when fatigued or otherwise at risk.
GENERAL. This Release and Waiver shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving effect to any conflict of laws rules). I agree that the Courts of Ontario shall have exclusive jurisdiction to entertain any legal proceeding based on any provisions of this Release and Waiver and I irrevocably submit to the exclusive jurisdiction of the Courts of Ontario for such purposes. If any portion of this Release and Waiver is found to be illegal, invalid or unenforceable, the remaining portions shall remain in full force and effect. In this Release and Waiver, headings are for convenience of reference only and are not intended to be full or complete descriptions and words in the singular shall include the plural and vice versa. This Release and Waiver shall be binding upon myself and my Legal Representatives. This Release and Waiver shall apply to all visits to the Facilities.
I HAVE READ AND UNDERSTAND THIS RELEASE AND WAIVER AND AGREE THAT BY SIGNING IT I AM GIVING UP CERTAIN LEGAL RIGHTS THAT I MAY OTHERWISE HAVE.
This agreement shall apply to all subsequent admissions and/or renewals.
By adding a checkmark to an item, I confirm that I understand and agree with that item.
Date: September 21, 2023