PARTIES. This agreement sets forth the terms of the binding contract between Participant (defined herein) and Ninja City, LLC and its agents, employees, successors, directors, members, affiliates, volunteers, contractors, equipment providers and representatives (collectively, “Sponsor”).
DEFINITIONS. The word “Activity” means participation in and/or use of the obstacles, tools, training, equipment, facilities, and surrounding area(s) in connection with any visit, party, class, competition, event or other occurrence taking place at or on 129 Old San Antonio Road, Boerne, Texas 78006 (the “Property”). Each person participating in, watching, attending any Activity or otherwise present on the Property is a “Participant” bound by this agreement.
AUTHORITY/INTENT. I am the Participant or the legal guardian and/or parent of Participant. I am over the age of 18 years and authorized to enter into this Release. As a Participant, individually, and/or on behalf of his or her child or legal ward (WHO IS LESS THAT 18 YEARS OLD) desires that such minor be a Participant hereunder and participate in Activity, including, without limitation, to stand, squat, stretch, run, bounce, jump, lift, tumble, climb, play and take other action in conjunction with (or without) others on the Property. In consideration of Participant, whether me personally, my child or ward, or both, being permitted to engage in the Activity, I agree to all the terms of this Release of Liability and Waiver of Rights (this “Release” or “agreement”).
BINDING EFFECT. I understand that this Release binds and is enforceable against me, my personal representatives, spouse, assigns, partner(s), heirs, Participant, next of kin, and any other who can make a claim by, through or under Participant, without limitation (the “Releasing Parties”). I intend the words, terms, provisions, covenants, and remedies contained in this Release to be enforceable to the fullest extent permitted by law. This document constitutes the entire agreement between Sponsor and me and supersedes any previous or contemporaneous discussions or agreements between us in respect to these matters and may only be terminated in writing.
INHERENT RISK/RESPONSIBILITY. I understand and agree that Sponsor provides a venue and facilities for training, recreation, negotiation of obstacles and other physical challenges and Participant may not be supervised during an Activity. I know an Activity may be basic or involve a full range of physical activity up to and including very vigorous and challenging Activity. Activity involves inherent risks and dangers of accidents, emergency treatment, property loss or damage, including serious personal and bodily injury, death, and severe personal and economic losses. These inherent risks include, but are not limited to, swinging, stretching, bending, pulling, lifting, lunging, climbing, crawling, running, handing, falling, collisions, landings from jumps or falls, attempting actions, physical exertion, interaction with other persons or things, attempted actions or maneuvers, slips, equipment failure or inadequacy of design/manufacture or otherwise, behavior of Participant and/or others, lack of supervision, errors of judgment and any other act, omission, defect, failure, shortcoming or condition on the Property. I also realize that Sponsor has no knowledge of (or the ability to evaluate) the limitations, abilities, fitness, conditions or skills that Participant may or may not have and cannot be held responsible for these factors: these are my responsibility. Dangers arising on the Property or in connection with Activity may result not only from Participant’s own actions, inactions, or negligence, but also from the actions, inactions, or negligence of others, the condition of the facilities or equipment that are part of the Activity or on the Property. THERE MAY BE OTHER RISKS NOT KNOWN TO ME OR REASONABLY FORESEEABLE, BUT I UNDERSTAND AND HAVE CONSIDERED THE RISKS, AND VOLUNTARILY AND FREELY CHOOSE TO ASSUME THESE RISKS FOR MYSELF AND, IF THE PARTICIPANT IS A MINOR, ON BEHALF OF HIM OR HER.
PARTICIPANT’S HEALTH. I represent and warrant that Participant is in good physical health and has no preexisting or known physical, mental or other condition that would cause him or her to be particularly susceptible or likely to suffer (or cause) harm, injury, damage or death as a result of the Activity or participation with others. I understand that if, in Sponsor’s judgment, emergency services are required, it is authorized to administer such first aid as it deems necessary or as is available and/or contact emergency medical care services to provide such care; all without any liability or responsibility on the part of Sponsor or such person providing or attempting to provide medical care. Participant assumes responsibility for all costs associated with medical care and/or transportation arising in connection or relation to Activity, the Property or Sponsor.
INJURY OR DAMAGE. I, or my spouse, partner, or another legal guardian is/are responsible for all injuries, harm, loss, theft and/or damage caused by or occurring to Participant; whether such injury, harm or damage is to Participant, Sponsor, or another person or thing. My obligation includes not only emergent or other healthcare needs that arise to Participant or another, but also damage to any other person or thing as well as any costs, including reasonable attorneys’ fees, incurred in giving effect to this promise.
RELEASE AND INDEMNITY. I, PERSONALLY AND ON BEHALF OF THE RELEASING PARTIES, FULLY AND FOREVER RELEASE, INDEMNIFY AND HOLD HARMLESS SPONSOR AND ITS RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, VENDORS, AGENTS, EQUIPMENT MANUFACTURERS, AFFILIATES, VOLUNTEERS, ASSIGNS, AND INSURERS, AND ALL OTHERS INVOLVED IN THE ACTIVITY FROM ANY AND ALL INJURIES (INCLUDING DEATH), THEFT, LOSSES, DAMAGES, CLAIMS (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE CLAIMS), DEMANDS, LAWSUITS, EXPENSES, LEGAL FEES AND COSTS (INCLUDING ATTORNEYS’ FEES), AND ANY OTHER LIABILITY OF ANY KIND, OF OR TO ME, PARTICIPANT, MY PROPERTY, OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE ACTIVITY, EVEN IF IT IS DUE TO THE NEGLIGENCE, INJUDICIOUS ACT, OMISSION, OR OTHER FAULT OF SPONSOR; SAVE AND EXCEPT, A FINAL DETERMINATION BY A TRIER OF FACT FINDING SPONSOR’S GROSS NEGLIGENCE TO BE THE SOLE PROXIMATE CAUSE OF SUCH INJURY, HARM OR DAMAGE. UNDER NO CIRCUMSTANCES WILL SPONSOR BE RESPONSIBLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES.
COVENANT NOT TO SUE. I will not initiate any claim, lawsuit, or other proceeding or demand against Sponsor, nor join or assist in prosecution of any claim for money or other damages, which anyone may have, on account of injuries (including death), losses, or damages sustained by me, Participant, other parties, or my (or others’) property in connection with participation in the Activity or being on the Property, and I waive any right to do so. This means that I cannot sue Sponsor for any injury, loss, or damage sustained by me, Participant, or other parties; nor can I sue for damage to my (or others’) property in connection with the Activity. I waive my insurers’ right to make a claim against Sponsor based on payments by insurers to me or on my behalf for any reason. This means my insurers have no rights of subrogation against Sponsor or any of those released through this Release.
PUBLICITY. I hereby grant Sponsor, without limitation, the right to use my name and likeness, and, if I enter into this agreement on behalf of Participant, those of Participant, in connection with the Activity or other use of the surrounding premises for any publicity without compensation or further permission. In the same way, I understand and agree that Sponsor may video and/or photograph the Activity, Participant and any portion of the Property. I authorize Sponsor to take all such photos, videos and/or images and agree it holds the sole ownership of all such media and may publish, republish, sell, assign and/or use such media for marketing, use on its website, advertising and other legitimate commercial or internal purposes. Neither I nor Participant will receive or be entitled to any rights, product, payment or other consideration or remuneration whatsoever in connection with such use, media or otherwise.
ARBITRATION. I UNDERSTAND THAT ANY DISPUTE OR OTHER MATTER BETWEEN THE PARTIES, THAT ARISES OUT OF OR RELATES TO THIS AGREEMENT, WHETHER CONCERNING PHYSICAL INJURY, PROPERTY DAMAGE, OR OTHERWISE SHALL BE RESOLVED EXCLUSIVELY THROUGH ARBITRATION ADMINISTERED UNDER THE RULES OF THE AMERICAN ARBITRATION AGREEMENT. ARBITRATION SHALL BE HELD IN KENDALL COUNTY, TEXAS BEFORE A SINGLE ARBITRATOR WHO SHALL OBSERVE THE TEXAS RULES OF CIVIL PROCEDURE AND OTHER APPLICABLE TEXAS LAW.
CONSTRUCTION. Any portion of this agreement held to be invalid or unenforceable shall not effect the remainder of this agreement, but each such unenforceable portion shall be equitably amended to conform with law and provide the relief consistent with the parties’ intent herein. The rule of contra proferentem and other rules of construction favoring the one party’s interpretation over another shall not be relied upon to interpret this agreement.
PROPERTY RULES. Participant agrees to abide by Sponsor’s Rules. Sponsor’s Rules include, but are not limited to, the following:
- Participants must wear athletic shoes;
- Long hair should be pulled back and secured;
- Jewelry including rings should not be worn;
- No foul language will be tolerated;
- Parents will provide supervision and assist their children, as instructed;
- Participant will not make intentional physical contact with others (whether participants, staff or otherwise);
- Participants will not move obstacles, pads or equipment; and
- No alcohol or illegal substance is permitted on the Property under any circumstance.
In addition, Participant agrees to abide by all posted rules and warnings on the Property. Sponsor’s Rules are subject to change without notice other than updated postings, as applicable.
I have read and I understand Sponsor’s Rules, stated above and as posted on the Property. If applicable, I have explained those rules to Participant and he or she also understands and agrees to follow those rules. I understand that Sponsor reserves the right to deny service or terminate service to me and/or Participant at any time for, among other things, violation of Sponsor’s, failure to execute this agreement and/or failure to observe common courtesies and norms of decency as determined by Sponsor.
BY SIGNING, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND ALL OF THE FORGOING TERMS AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, PERSONALLY AND FOR AND ON BEHALF OF PARTICIPANT AND THE RELEASING PARTIES, INCLUDING THE RIGHT TO SUE THE SPONSOR. THIS AGREEMENT SUPERSEDES AND REPLACES ANY OTHER AGREEMENT BETWEEN PARTICIPANT, MYSELF AND SPONSOR, AND MAY ONLY BE SUPPLEMENTED OR AMENDED IN A WRITING SIGNED BY THE PARTIES. I SIGN THIS AGREEMENT FREELY WITHOUT ANY DURESS AND AFTER THE OPPORTUNITY TO EVALUATE THE RISKS.
Date Signed: February 21, 2019