RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNIFICATION AGREEMENT
I have voluntarily elected to use and, if applicable, to allow the minor child(ren) identified above and all minor children under my supervision and referred to individually and collectively herein as “Child”, to use My Ninja Factory facilities and equipment located at 871 Showroom Place #106 Chula Vista, CA 91914, (“Ninja Factory”). In consideration for being allowed to use said facilities and equipment, and any other services provided by F3 Entertainment LLC or its employees or agents at said location, or any other location within the State of California, I represent, acknowledge and agree as follows:
I acknowledge and agree that this Agreement covers and is intended to release and provide other benefits, legal protections, and consideration to F3 Entertainment, LLC, and their respective and collective agents, owners, officers, managers, shareholders, affiliates, volunteers, participants, employees, and all other persons or entities acting in any capacity on their respective or collective behalf (collectively, “NF”)
Release of Potential Exposure and or Contraction of Covid 19
Due to the novel Coronavirus (COVID-19) pandemic, F3 Entertainment LLC dba My Ninja Factory is taking extra precautions to ensure the health and safety of our staff, guests and participants. This includes but is not limited to a health history review, temp checks for employees and enhanced sanitation procedures.
Symptoms of COVID-19 may include:
Fever or chills
Shortness of breath or difficulty breathing
Muscle or body aches
New loss of taste or smell
Congestion or runny nose
Nausea or vomiting
My signature and completion of this waiver affirms the following:
* I understand the above symptoms and affirm that I, and my household members, do not have and am not experiencing the symptoms listed above within the last 14 days.
* I affirm that I and those in my household have not been diagnosed with Covid-19 in the past 30 days.
* I have not knowingly been exposed to anyone diagnosed with COVID-19 within the past 30 days.
* I affirm that I have not traveled outside of the country within the past 30 days.
* I understand that the Centers for Disease Control (CDC) has stated that there is evidence that persons with COVID-19 may be asymptomatic or pre-symptomatic, and that the virus may be transmitted to others by me if I am such a carrier and or transmitted to me and by family by other guests if they are such carriers.
* I understand that I am entering the facility during a pandemic and that I must follow all posted and verbally instructed rules and requirements for my safety and that of others including but not limited to:
* Wear a mask over my nose and mouth for the duration of my visit
* Ensure my guests also adhere to mask wearing and sanitiation
* Be mindful of social distancing keeping 6 feet away from other guests not in my household
* Wash my hands with soap and water or alcohol-based hand gel before entering and leaving
* I understand that despite adhering to all precautions, there is still a possibility that I will be exposed to or contract COVID-19.
Persons with underlying health conditions may be particularly susceptible to illness and death from COVID-19. Such conditions include but are not limited to heart disease, chronic lung disease, suppressed immunity system, severe obesity, diabetes, chronic kidney disease and liver disease. I have been advised and choose to visit, understanding my own health condition(s).
I have read the above and understand it is not inclusive of all risks and safety measures related to COVID-19 assume the risk by choosing to visit Ninja Factory during the pandemic.
In accordance with applicable law and facility policy, I agree to enter into this wavier and release of liability. By signing this agreement, I waive and release F3 Entertainment LLC dba My Ninja Factory its officers, directors, owners, subsidiaries, employees, contractors, agents, affiliates, attorneys, insurers, successors, and assigns from any and all liability to me, including liability to my personal representatives, assigns, heirs, and next of kin, for any loss, costs, claims, demands, causes of action, damages or suits at law and equity of any kind, including but not limited to claims for personal injury whether caused by negligence or otherwise, medical expenses, loss of services or wrongful death on account of, or in any way related to or arising out of my contracting COVID-19.
RELEASE OF POTENTIAL INJURIES
I acknowledge and agree that the use of inflatables, play structure and other equipment at My Ninja Factory Facility and that participating in inflatable jumping, climbing, and obstacle courses as well as other activities is inherently dangerous. These risks include serious physical or emotional injury, paralysis, death, damage to myself, the Child, and/or third parties, and damage to personal property of any or all such persons. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity, which I further agree is for recreational purposes and completely voluntary. I acknowledge and agree that, while the activities that take place at My Ninja Factory Facility are monitored generally by My Ninja Factory Facility employees, it is not feasible for such employees to monitor the activities and actions of all customers at all times or all customers simultaneously. Furthermore, My Ninja Factory Facility employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant’s health or abilities. They may give incomplete warnings or instructions, and the equipment being used might malfunction.
I acknowledge and agree that I and/or the Child are participating voluntarily at our own risk. I acknowledge and agree that the actions or activities of other customers or the actions or inactions of My Ninja Factory Facility employees could cause me and/or the Child significant bodily injury (as described in this Agreement), and that "NF" is not responsible for the actions or activities of customers using My Ninja Factory Facility or the negligence of its employees in supervising My Ninja Factory Facility or its usage, including actions, activities, or omissions that result in such harm. Some of the risks include, but are not limited to, the following:
a) Participants may die or become paralyzed, partially or fully, through their use of My Ninja Factory facility and participation in My Ninja Factory activities.
b) Participants may suffer cuts, scrapes, bumps, bruises, the transmission of disease strains and allergic reactions through use of My Ninja Factory Facility equipment or contact with other participants or surfaces they have contacted. Participants may sprain, pull, break or otherwise seriously externally or internally injure their head, face (including nose and teeth/jaw), neck, torso, spine, arms, wrists, hands, legs, ankles, feet or other body parts as a result of falling off the inflatable(s) or other equipment, landing improperly on the inflatables or other equipment, or making contact with other participants. As noted in paragraph a) above, such injuries can lead to paralysis, disfigurement or death. Participation may result in heat stroke, heart attacks, dehydration and other exertion-related medical events.
c) Participants may fall on each other, resulting in broken bones and other serious injuries. Bouncing, flipping, running and bouncing off of the walls, and other participant body movements (whether planned or unplanned) can create a rebound effect and lead to unpredictable body movements and anticipated or unanticipated bodily contact, any or all of which can lead to serious injury.
d) Traveling to and from inflatables, and play structure can result in similar physical injury (even if the participant is not himself or herself bouncing at the time).
e) Observing, standing, sitting or taking photographs at or near any inflatables or activity can result in similar physical injury (even if the observer is not himself or herself participating at the time).
AGREEMENT TO PAY MY OWN MEDICAL EXPENSES
I acknowledge, accept, and assume the risk of any and all medical conditions, limitations, or disabilities (whether temporary or permanent) that I and/or the Child possess, whether known or unknown, which might contribute to or exacerbate any injury I and/or the Child might sustain as a result of using My Ninja Factory Facility or any of its equipment. I acknowledge and agree that if medical assistance (of any form, including emergency care, hospitalization, out-patient care, and/or physical therapy) is required or performed as a result of any injury I or the Child sustains while using My Ninja Factory Facility, such assistance shall be at my own expense.
RELEASE OF LIABILITY
The Releasing Parties hereby forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability, and covenant not to sue NF, and their successors, predecessors-in-interest, managers, agents, representatives, employees, and insurers (collectively, the “Releasees") from any and all claims, demands, rights, actions, suits, causes of action, obligations, debts, costs, losses, charges, expenses, attorneys’ fees, damages, judgments and liabilities, of whatever kind or nature, in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, related to or arising, directly or indirectly, from My and/or the Child’s access to and/or use of My Ninja Factory Facility, premises and/or its equipment (whether inflatables or otherwise), the Child’s and/or my entry into My Ninja Factory Facility, the condition, maintenance, inspection, supervision, control or security of My Ninja Factory Facility, the failure to warn of dangerous conditions in connection with My Ninja Factory Facility, and/or the acts or omissions of NF or any of the Releasees, including, without limitation, any claim for negligence, failure to warn or other omission, property damage, personal injury, emotional injury, illness, bodily harm, paralysis or death. I understand that this release and waiver applies not only to use of the inflatables, but also all other equipment like obstacle course, climbing wall, warped walls, play structure, and all activities and games at My Ninja Factory Facility. I understand that this release and waiver applies to and includes all activities that I and/or my Child engage in at the premises, whether inside or outside My Ninja Factory Facility. In the event that any claim released herein is brought by, or asserted on behalf of, the Releasing Parties, I shall immediately defend, indemnify, and hold harmless the Releasees, and any of them, from any loss or liability, including reasonable attorneys' fees, associated therewith or arising therefrom.
On the Child’s and/or my behalf, I knowingly and voluntarily waive any and all rights and benefits conferred upon us by the provisions of Section 1542 of the California Civil Code or by any similar law or provision, which Section reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
I understand and fully acknowledge and agree that all of the risks identified herein and any other risks associated with use of My Ninja Factory facility and its equipment are beyond the control of the Releasees. I agree and acknowledge that should NF or any other Releasee or anyone acting on their behalf, be required to incur attorneys' fees and/or costs to enforce this agreement, I agree to immediately defend, indemnify and hold NF and any other Releasee or them harmless for and against all such attorneys’ fees and/or costs.
ARBITRATION OF DISPUTES; TIME LIMIT TO BRING CLAIM
I understand that by agreeing to arbitrate any dispute as set forth in this section, I am waiving my right, and the right(s) of the minor child(ren) above, to maintain a lawsuit against NF and the other Releasees for any and all claims covered by this Agreement. By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, NF and the other Releasees waive their right to maintain a lawsuit against me and/or the minor child(ren) above for any and all claims covered by this Agreement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD’S ACCESS TO AND/OR USE OF MY NINJA FACTORY PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE BROUGHT WITHIN ONE YEAR OF ITS ACCRUAL (i.e., the date of the alleged injury) AND BE DETERMINED BY ARBITRATION IN THE COUNTY OF SAN DIEGO, CALIFORNIA, BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS RULE 16.1 EXPEDITED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of California, without regard to choice of law principles. Notwithstanding the provision with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Sec. 1-16). I understand and acknowledge that the JAMS Arbitration Rules to which I agree are available online for my review at jamsadr.com, and include JAMS Comprehensive Arbitration Rules & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness.
TERM OF AGREEMENT
I understand that this agreement extends forever into the future and will have full force and legal effect each and every time I and/or my child(ren)/ward(s) visit My Ninja Factory, whether at the current location or any other location or facility.
SAFETY IS YOUR RESPONSIBILITY: I AND/OR EACH CHILD AGREE TO FOLLOW THE CODE OF PATRON RESPONSIBILITY:
a) You acknowledge that there are inherent risks in the participation in the inflatables, obstacle course, climbing wall or any play structure, and that such risks include not only the use of inflatables, obstacle course, climbing wall, and play structure but other activities and equipment. Patrons of an inflatable who use inflatables, obstacle course, climbing wall or any play structure, and those who engage in any other activities or use any other equipment, by participation, accept the risks inherent in such participation of which the ordinary prudent person is or should be aware. Patrons have a duty to exercise good judgment and act in a responsible manner while using the inflatables and other equipment, and while engaging in such activities. Patrons have a duty to obey all oral or written warnings, or both, prior to or during participation, or both.
b) You have a duty to not participate in any activity on any inflatable, obstacle course, climbing wall or any play structure, or engage in any other activity or use any other equipment, when under the influence of drugs or alcohol.
c) You have a duty to properly use all safety equipment provided, whether for the inflatables,obstacle course, climbing wall or any play structure, or otherwise.
d) You have a duty to not participate in any activity on any inflatable, obstacle course, climbing wall or any play structure,or engage in other activities or use other equipment, if you have pre-existing medical conditions, circulatory conditions, heart or lung conditions, recent surgeries, back or neck conditions, knee or ankle conditions, high blood pressure, known pregnancy, any history of spine, musculoskeletal or head injuries, or if you may be pregnant.
e) You have a duty to remove inappropriate attire including hard, sharp or dangerous objects such as buckles, pens, purses, badges and so forth.
f) You have a duty to avoid bodily contact with other patrons.
g) You have a duty to conform with or meet height, weight or age restrictions imposed by the manufacturer or owner to use or participate in any activity, whether involving the use of inflatables, obstacle course, climbing wall or any play structure, or otherwise.
h) You have a duty to avoid crowding or overloading individual sections of the inflatables, obstacle course, climbing wall or any play structure, or other equipment.
i) You have a duty to use the inflatables, obstacle course, climbing wall or any play structure, and other equipment, within your own limitations, training and acquired skills.
j) You have a duty to avoid landing on the head or neck. Serious injuries, paralysis or death can occur when landing on the inflatables, obstacle course, climbing wall or any play structure, or elsewhere, whether involving the inflatable, other equipment, or otherwise.
k) You also agree to follow and obey all posted and stated warnings and patron education signs.
l) You agree to explain all safety rules to each Child you accompany, and to ensure that each Child obeys the safety rules.
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I have had sufficient opportunity to read this document. I have read and understood and agree to be bound by its terms. I understand that employees working at My Ninja Factory Facility, including the manager, do not have the authority to waive any provision of this Agreement. This Agreement constitutes and contains the entire agreement between NF and me relating to the Child’s and/or my use of My Ninja Factory Facility. There are no other agreements, oral, written, or implied, with respect to such matters. I agree that if any portion of this Agreement is found to be unenforceable, the remaining portions shall remain in full force.
By signing below, I represent and warrant that I am the parent, legal guardian, or power-of-attorney of the above listed Child(ren) and have the authority to execute this Agreement on his/her or their behalf and to act on his/her or their behalf. I have read each and every paragraph in this document and I and they agree to be bound by the terms stated therein, including the release of liability contained therein. I further agree to indemnify and hold harmless the Releasees from any and all claims which are brought by or on behalf of this or these minor Child or Children, or any of them, which are in any way connected with, arise out of, or result from their use of My Ninja Factory Facility. I am 18 years of age or older. I am entering this agreement on behalf of myself, my spouse or domestic partner, the Child, and our respective and/or collective issue, parents, siblings, heirs, assigns, personal representatives, estate(s), and anyone else who can claim by or through such person or persons (collectively, the “Releasing Parties”).
IN SUMMARY, BY MY SIGNATURE BELOW, I ACKNOWLEDGE THAT IF I OR ANY OF MY CHILDREN ARE INJURED IN ANY WAY, THIS WAIVER PREVENTS AND PROHIBITS ANY RECOVERY OF MONEY FROM ANY F3 Entertainment LLC RELATED ENTITY.