If Premises is located in Spring, Texas: inSPIRE Rock, Ltd. and Team Synergy, Inc., or
If Premises is located elsewhere: inSPIRE Rock, Ltd.; Team Synergy, Inc.; and inSPIRE Cypress, LLC.
This Assumption of Risk, Release of Liability, and Indemnification Agreement (Agreement) is entered into on the date this Agreement is executed between the Parties. As valid consideration for entry into the Premises and participation in the Activities, as defined below, including any of those Activities that may occur in, about, or near the premises located at 403 E. Louetta Rd., Spring, TX and 16730 House Hahl Rd., Cypress, TX (Premises) or any other premises wherever located, the undersigned agree as follows:
- Activities. inSPIRE operates a gym on the Premises that offers clients the opportunity to participate in a number of physical activities. These activities include maneuvering on indoor climbing walls, bouldering, yoga and using fitness equipment. The climbing walls extend far from the ground. Wall climbers may be supported (“belayed”) by means of a system of ropes or personal auto-belays. Climbers must receive an orientation by gym staff before commencing those activities. No visitor may perform belaying services until and unless he/she has been trained by a staff member to do so. Visitors must familiarize themselves with the fitness equipment before use and ask for assistance, if needed. The challenge courses and team building programs in Spring and Cypress are operated or led by facilitators. At no time is a person allowed to participate on these courses without the supervision of inSPIRE staff. The challenge course includes a system of cables and platforms over and through which participants will climb and traverse at heights high above the ground. These activities (climbing & team building) can be physically and emotionally demanding. A visitor may not participate in the climbing or team building activities if he/she has any physical or mental condition that might cause the visitor to be a danger to himself/herself, to other visitors, or staff. I, an adult visitor or parent, represent that neither I nor, if applicable, the minor child, has any such condition. I certify that I am, or the minor child is, in good health without physical limitations which would preclude participation. Even though inSPIRE (a) has designed the facility with safety as a prime concern, (b) provides instruction in some activities, (c) provides general supervision of activities, and (d) has developed rules and policies that focus on safety, it is impossible to eliminate all risk and possibility of injury.
- Risks. There are inherent risks in participating in the Activities. Risks include, but may not be limited to: trips, falls, and other trauma while moving about the Premises, including the parking area and areas which may be under construction; overexertion and inattention may produce falls and abrupt contact with other persons, walls, boulders and other structures and equipment; visitors may be struck by falling climbers, dropped tools, climbing holds and hardware; ropes, harnesses, and other equipment, including fitness machines and equipment, may fail; and other visitors and gym staff may act carelessly. The gym may from time to time employ independent contractors to perform certain services. The gym is not responsible for the acts or omissions of these contractors. These risks and others may result in all manner of injury and loss including breaks, sprains, abrasions, serious injury and even death. The risks described above, and others, are inherent to the Premises and the Activities; the risks cannot be eliminated without destroying the basic nature, appeal, and value of the Activities.
- Assumption of Risks. I, an adult participant or parent/legal guardian of a minor participant, warrant that I have read this Agreement in its entirety, acknowledge that the Activities contain inherent risks which vary with the activity, understand the demands of the Activities relative to Participant’s physical condition and skill level, appreciate the types of injuries that may occur as a result of the Activities and their potential impact on safety, well-being, and lifestyle, and assert that participation is voluntary and that all Participants knowingly assume all risks inherent with the Activities. Participant acknowledges that the Protected Parties will not pay for any costs or expenses incurred by Participant if Participant is injured.
- Release of Claims. To the fullest extent permitted by law, Participant or legal guardian of minor participant on behalf of participant (and on behalf of his/her heirs, executors and representatives) releases and agrees not to sue inSPIRE Rock, Ltd.; Team Synergy, Inc.; and inSPIRE Cypress, LLC (“inSPIRE”); the owner(s) of the property on which the facilities are located; and any of their affiliates or subsidiaries, respective officers, directors, shareholders, members, managers, partners, agents, employees, contractors, representatives, heirs, assigns, volunteers, independent contractors, equipment providers, and insurers of all of them (collectively, the “protected parties”) from and against all liabilities, losses, damages, claims, demands, actions, suits, causes of action, costs, fees, and expenses (including reasonable attorney's fees and court or other costs) relating to, resulting from, or arising out of or alleged to have arisen out of (in whole or in part) any bodily injury to or death of participant or damage to or loss of participant's property (a) during or relating to participant's participation, whether actively or passively, in any rock climbing related activities, challenge course, bouldering, jumping, exercising, use of any equipment or attractions, instruction, training, classes, observation, use of the locker room area, use of any portion of the premises, including, but not limited to, the associated sidewalks and parking lots, and any competition, event, or program sponsored by or affiliated with the protected parties (collectively, “activities”), (b) occurring in or about the premises where any of the activities are taking place, conducted, or performed by participant or anyone else, (c) resulting from damage to, loss of, or theft of personal property of participant and due to the negligence, gross negligence, or willful misconduct of the protected parties. The release contained in this paragraph will apply even if any such injury or damage is caused in whole or in part by the negligence or strict liability of the protected parties or participant.
- Indemnity. Participant or legal guardian of minor participant, on behalf of himself and his heirs, executors and representatives agrees to indemnify, defend, release, and hold harmless the protected parties from and against all claims, causes of action, suits, losses, liabilities, damages, fines, penalties, liens, judgments, settlements, proceedings, costs, fees, and expenses (including reasonable attorney's fees and court or other costs) of any nature whatsoever for or relating to death, bodily injury or property damage resulting from, relating to, or caused by (whether in whole or in part) any of the following matters (which necessarily include all claims that do or may belong to the minor participant): (a) participant's acts, omissions or presence on or about any part of the premises or other premises where activities are taking place, conducted, or performed by participant or anyone else, (b) participant's active or passive participation in, or observance of, any of the activities; (c) any claims arising out of the negligent, grossly negligent, or willful acts or omissions of participant or any guest or invitee of the protected parties, or (d) participant's use of any fixtures, equipment or personal property in, on or about premises or other premises where activities are taking place, conducted, or performed by participant or anyone else. The indemnity contained in this paragraph will apply even if any such injury or damage is caused in whole or in part by the negligence or strict liability of the protected parties or participant, but will not apply to the extent any such injury or damage is caused by the willful misconduct of the protected parties.
- Authority. As the parent or legal guardian of the Minor Participant, the undersigned represents to the protected parties that he has legal capacity and authority to act for and on behalf of the Minor Participant, and agrees to indemnify and defend the protected parties from and against all claims or liabilities resulting from or relating to any insufficiency of the undersigned's legal capacity or authority to act for or on behalf of the minor participant(s) in the execution of this Agreement.
- Governing Law. The terms of this agreement and any dispute between the Parties, related to this agreement or otherwise, will be governed by the substantive laws of the State of Texas (not including laws which might apply the laws of another jurisdiction). I agree, for myself and for the minor visitor, that the venue of any suit or mediation will be solely in Harris County, Texas, and I agree to the jurisdiction of the courts of that County, for myself and the child. If I or the child suffer an injury or loss of property while visiting the Premises I agree that I will promptly notify the gym or challenge course staff of that occurrence.
- Arbitration. Any dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this provision (Dispute) shall be brought by the parties in their individual capacity and not as a plaintiff or class member in any purported class or representative capacity, and settled by binding arbitration before a single arbitrator administered by the American Arbitration Association (AAA) per its Commercial Industry Arbitration Rules in effect at the time the demand for arbitration is filed. Judgment on the arbitration award may be entered in any federal or state court having jurisdiction thereof. No award shall exceed the amount of the claim by either party and the arbitrator shall have no authority to award punitive or exemplary damages. If the Dispute cannot be heard by the AAA for any reason, the Dispute shall be heard by an arbitrator mutually selected by the parties. If the parties cannot agree upon an arbitrator, then either party may petition an appropriate court to appoint an arbitrator. Arbitration shall be subject to 9 U.S.C. § 1 et seq. and Chapter 171 of the Texas Civil Practice and Remedies Code. If either party files suit in violation of this paragraph (except to toll the statute of limitations), such party shall reimburse the other for their costs and expenses, including attorneys’ fees, incurred in seeking abatement of such suit and enforcement of this paragraph.
- Waiver of Trial. Adult participant on behalf of him/herself and the minor participant, if applicable, knowingly and voluntarily, with full awareness of the legal consequences, agree to waive their right to a bench trial or jury trial of any dispute.
- License. For good and valuable consideration the receipt of which is hereby acknowledged, adult participant on behalf of him/herself and the minor participant irrevocably grants inSPIRE and inSPIRE's assigns, licensees and successors the right to use all or a portion of my image (including real and personal property owned by me) and name in all forms and media including composite or modified representations for all purposes, including advertising, trade or any commercial purpose throughout the world and in perpetuity. Adult participant on behalf of him/herself and the minor participant waives the right to inspect or approve versions of images used for publication or the written copy that may be used in connection with the images. Adult participant on behalf of him/herself and the minor participant release inSPIRE and inSPIRE's assigns, licensees and successors from any claims that may arise regarding the use of my statements or images including any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity or copyright. inSPIRE is permitted, although not obligated, to include my name as a credit in connection with the image. inSPIRE is not obligated to utilize any of the rights granted in this paragraph.
This document is intended to be binding, to the fullest extent of the law, on signatory, a minor visitor, if applicable, and their respective successors, heirs, executors, administrators and family members. If any part of this document is deemed by a court of competent jurisdiction to be unenforceable the remainder shall nevertheless be in full force and effect. The terms of this Agreement cannot be altered. This Agreement will govern visits to the facility on the date on which it is signed and thereafter until it is withdrawn by written notice to the facility or replaced. I have had sufficient opportunity to read this Agreement. I have read and understand this Agreement and I agree to be bound by its terms.
If I am signing this document on behalf of my spouse, child, family member, friend, minor child, or other person, I expressly warrant and represent to inSPIRE that I have such person’s actual and implied authority to execute this Agreement on their behalf, including, but not limited to, the release and indemnity provisions.
Today's Date: May 28, 2020