THIS PARTICIPATION AGREEMENT (“Agreement”) is made and is effective as of the last date executed (hereinafter the "Effective Date") by and between XPLORE KIDS, INC (hereinafter "XPLORE") and the adult or guardian identified (hereinafter "Adult"), who is executing this Participation Agreement personally, and on behalf of themselves and any minor children specified below (the Adult and any minor children on whose behalf Adult signs this Agreement are collectively referred to hereinafter as the "Participants"). XPLORE and Participants are collectively referred to hereinafter as the "Parties."
WHEREAS, XPLORE owns and/or operates a recreational indoor play center located at 200 Wilson Street, Port Jefferson, NY 11776 (hereinafter the "Play Center"); and
WHEREAS, XPLORE makes the Play Center available to customers solely for recreational use and enjoyment, not as a service to the general public; and
WHEREAS, Participants desire to participate in ALL the recreational activities available at the Play Center; and
WHEREAS, Participants know, understand, and acknowledge that participation in ANY of the recreational activities available at the Play Center is purely voluntary, not essential or necessary, and intended solely for recreational enjoyment; and
WHEREAS, Participants know, understand, and acknowledge that the use of the play area, inflatable equipment, soft playground, toddler area and any and all other Xplore equipment, including but not limited to the inflatable and playground equipment, and use or participation in any of the equipment, services, activities, or presence at Play Center (collectively “Use of Facility”), constitutes an inherently risky recreational activity that is likely to result in serious injury (such as paralysis and death), damage to property, and injury to third parties; and
WHEREAS, XPLORE will not make the Play Center available to Participants unless Participants are willing to take personal responsibility for any and all known and unknown injuries to Participants, damage to property, and injuries to third parties that may result from Participants' voluntary participation in ALL the recreational activities available at the Play Center and any of the other causes identified hereinafter.
NOW THEREFORE, in consideration of the premises and the mutual covenants, conditions, representations, and agreements contained herein, as well as the cost of admission to the Play Center, the Parties hereby agree as follows:
1. Waiver and Release of Liability
To participate in the Use of Facility, all Participants, on behalf of themselves, and their parents, spouses, children/wards, heirs, assigns, representatives, estates, successors, attorneys, insurers, and all other persons, firms, partnerships or corporations connected therewith (collectively referred to hereinafter as the "Releasing Parties"), forever, finally, fully, permanently and unconditionally waive, release, acquit and discharge XPLORE, and its present and former employees, owners, members, principals, directors, subsidiaries, affiliates, representatives, predecessors, successors, shareholders, partners, parents, officers, agents, assigns, servants, attorneys, insurers, suppliers, manufacturers, clients, customers, participants, and all other persons, firms, partnerships or corporations connected therewith (collectively referred to hereinafter as the "Released Parties"), to the fullest extent permitted by law, from any and all charges, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' Use of Facility at the Play Center, and any claims for costs, expenses and attorneys' and expert fees associated therewith.
2. Assumption of Risk
Releasing Parties know, understand and acknowledge that the use of the play area, inflatable equipment, soft playground, toddler area and any and all other Xplore equipment, including but not limited to the inflatable and playground equipment, and use or participation in any of the equipment, services, activities, or presence at Play Center (collectively “Use of Facility”), constitutes an inherently risky recreational activity that may result in serious injury (such as paralysis and death), injury to third parties, and damage to property. Releasing Parties know, understand and acknowledge that these risks include, but are not limited to, falling off equipment, double bouncing, collision with fixed objects and/or people, sudden and unforeseen malfunction of equipment, and failed attempted jumps and stunts. Releasing Parties hereby assume the risk both known and unknown of personal injury or death, injury to third parties, and damage to property that arise out of or relate in any way to Participants' past, present or future Use of Facility.
To the extent allowed by law, the Releasing Parties hereby indemnify and covenant to hold harmless and defend Released Parties from any and all charges, passive and active negligence, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' Use of Facility, or based on or arising out of any breach of this Agreement, its covenants, representations, or warranties by the Releasing Parties, and any claims for costs, expenses and attorneys'/expert fees associated therewith.
4. Fitness to Participate
Participants represent that they: (i) Are in good health, and in proper physical condition to participate in the Use of Facility and ALL activities at the Play Center; (ii) Are NOT under the influence of alcohol, illicit or prescription drugs that would in any way impair their ability to safely participate in the Use of Facility and ANY activity at the Play Center; (iii) Do NOT have ANY preexisting conditions which would make Participants unfit to participate in the Use of Facility and ANY activity at the Play Center. It is the sole responsibility of all Participants to determine sufficiency of health, fitness, and ability to participate in the Use of Facility and ANY activity at the Play Center.
5. Covenant Not to Sue
Releasing Parties hereby covenant not to sue Released Parties on account of any and all charges, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' Use of Facility, and any claims for costs, expenses and attorneys' fees associated therewith.
6. Representations, Warranties, and Further Assurances
Adult represents and warrants that she/he was given ample opportunity to read and review this Participation Agreement. Adult further represents, warrants, and covenants (a) that Adult is the parent or legal guardian of the minor Participants, (b) that Adult has and will maintain adequate medical or other insurance to cover and pay for any possible injury that may occur to Participants and/or third parties (“Insurance”) that arise out of or relate in any way to Participants' presence at the Play Center, participation in any of the activities at the Play Center, or Use of Facility at the Play Center (“Injury Event”); and (c) that in the event of any Injury Event, the Insurance shall be used as the primary insurance and shall cover all costs, expenses, losses, and damages related to injuries arising from or connected in any way to Use of Facility or such Injury Event, without any rights of subrogation. Participants further represent and warrant that they HAVE read and MUST follow the rules of the Play Center as amended from time to time, and will cause other Participants (including minor children) to follow such rules, including without limitation the safety video rules, rules conveyed orally, and any rules posted on signs within the Play Center.
This Participation Agreement constitutes the entire and only agreement and understanding between the Parties with respect to the subject matter hereof and may not be altered, enlarged, or abridged except by an agreement in writing executed by all of the Parties hereto.
8. Binding Nature of this Participation Agreement
The provisions of this Participation Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective successors and assigns. Participants understand that Participants have the chance to consult with an attorney about this Agreement and are otherwise signing it voluntarily.
All the provisions of this Participation Agreement shall be considered as separate terms and conditions. In the event that any provision hereof is determined to be invalid, prohibited, or unenforceable by a court or other body of competent jurisdiction, this Participation Agreement shall be construed as if such invalid, prohibited, or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited, or unenforceable. Notwithstanding the foregoing two sentences, in the event that any of the provisions of this Participation Agreement should be determined to be invalid, prohibited or unenforceable, the validity, legality and enforceability of the remaining provisions contained in this Participation Agreement shall not in any way be affected or impaired thereby.
10. Choice of Law and Jurisdiction
This Participation Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of law rules of another state. Releasing Parties explicitly know, understand and acknowledge that the laws of the State of New York may be more likely to recognize the validity and enforceability of the terms of this Participation Agreement-and particularly the parental waiver and indemnification provisions-than the laws of the other states (including the state where the Play Center is located and/or the Releasing Parties reside). In executing this Participation Agreement, Releasing Parties' expressly intend and desire for the substantive laws of the State of New York to govern the validity and enforceability of this Participation Agreement.
11. Mediation and Arbitration
Any and all disputes, claims, or controversies arising out of or relating in any way to this Agreement, including but not limited to Participants' Use of Facility at the Play Center may be submitted to a formal mediation using a mediator, or a comparative impartial third party, either appointed by the American Arbitration Association or any other mediator to which the Parties agree in writing.
Mediation must commence within any applicable statute of limitations, and shall be deemed to commence when a Party notifies the agreed-upon mediator, in writing, of its request for mediation, the subject of the dispute, and the relief requested. Mediation shall be deemed to be in the nature of settlement negotiations and any dispute not otherwise satisfactorily resolved shall be subject to mandatory, final and binding arbitration. Either Party may initiate arbitration with respect to the matters submitted to mediation by notifying the other Party, in writing and within ten days after the mediation is concluded, of its demand for arbitration. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. Except as otherwise agreed in writing by the Parties or as required by applicable law, any mediation and arbitration shall be conducted in New York. Similar to a judge or jury, an arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, however the scope and rules of arbitration differ, and review is limited. In the event the Parties elect not to mediate, arbitration shall be the sole and exclusive forum for resolution of the dispute, claim or controversy, and the award shall be in writing, state the reasons for the award, and be final and binding. Judgment thereon may then be entered in any court of competent jurisdiction. By signing this Agreement, the Participants, to the fullest extent permitted by law, agree to this Section 11 and agree to settle disputes only by individualized mediation and/or arbitration, with disputes from different participants to be heard in different proceedings. Participants thereby waive their right to seek relief in a court of law and have any and all claims decided by a jury or a judge, or to maintain other available court action or administrative proceedings to settle Participants’ disputes.
12. Attorney Fees for Breach of this Participation Agreement
In the event either Party hereto defaults in any of the covenants or agreements contained herein, including without limitation the eleventh clause, the non-prevailing Party shall pay all costs and expenses, including reasonable attorneys' fees and expert fees, incurred by the prevailing Party as a result of this default.
13. Use; Acknowledgment of the Rules
Participants understand that in order to be present at or participate in Use of Facility at the Play Center or any portion thereof, Participants must complete all of the following: (1) sign this Agreement; (2) read and abide by the rules and regulations prescribed by the Play Center. Additionally, Participants agree that Participants will ensure any guest Participant brings to the Play Center signs XPLORE’s standard release form and completes the other steps required for Use of Facility at the Play Center or any portion thereof. Participants understand that Participants are responsible for any guests Participants bring to the Play Center, and therefore agree to indemnify the Released Parties for any liability arising out of Participants’ guest’s visit to or Use of Facility at the Play Center or any portion thereof. All Participants MUST READ, UNDERSTAND and FOLLOW all Play Center rules as amended from time to time. By signing this Agreement you are representing and warranting that you have READ, UNDERSTAND and WILL FOLLOW ALL RULES as amended from time to time.
14. Video, Photo, and Image Release; Data Storage and Use
The Agreement gives XPLORE the exclusive rights and permissions to use all media captured on the Play Center premises, including but not limited to: security footage, photos, and video. Such information may be used for any and all purposes including but not limited to publication in both printed and electronic media, internet, websites, advertisement, and other promotional uses.
In the event Participants choose to provide such data, XPLORE may collect and store data that includes sensitive and personally identifiable information. This includes, for example, names, contact information (such as an address, e-mail, or phone number), and dates of birth. XPLORE may use this data to help towards development of new services or to improve existing services, to provide advertising and other information to Participants (including e-mails about special offers, new services, or other information that may be of interest to Participants), or for any lawful business purpose, or to allow XPLORE’s business partners to do the same. XPLORE also reserves the right to access, use, and share Participants’ personally identifying information with others for purposes of health, safety and other matters in the public interest. XPLORE may also provide access to its database or stored data in order to cooperate with investigations or legal proceedings initiated by governmental and/or law enforcement officials, as well as private parties, including, for example, in response to subpoenas, search warrants, court orders, or other legal process.
15. Waiver of Liability Relating to Coronavirus/COVID-19
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is reported to be extremely contagious. The state of medical knowledge is evolving, but the virus is believed to spread from person-to-person contact and/or by contact with contaminated surfaces and objects, and even possibly in the air. People reportedly can be infected and show no symptoms and therefore spread the disease. The exact methods of spread and contraction are unknown, and there is no known treatment, cure, or vaccine for COVID-19. Evidence has shown that COVID-19 can cause serious and potentially life threatening illness and even death.
XPLORE cannot prevent you, your children, friends, or any family member from becoming exposed to, contracting, or spreading COVID-19 while utilizing XPLORE’s services or premises. It is not possible to prevent against the presence of the disease. Therefore, if you choose to utilize XPLORE’s services and/or enter onto XPLORE’s premises you may be exposing yourself to and/or increasing your risk of contracting or spreading COVID-19.
Symptoms of COVID-19 include: Fever, Fatigue, Dry cough, Difficulty breathing
You understand the above symptoms and affirm that you, as well as all household members, do not currently have, nor have experienced the symptoms listed above within the last 14 days.
You affirm that you, as well as all household members, have not been diagnosed with COVID- 19 within the last 30 days.
You affirm that you, as well as all household members, have not knowingly been exposed to anyone diagnosed with COVID-19 within the last 30 days.
You affirm that you, as well as all household members, have not traveled outside of the country, or to any city outside of our own that is or has been considered a “hot spot” for COVID-19 infections within the last 30 days.
16. Subsequent Visits
This Agreement shall apply to ALL of Participants’ future visits to XPLORE and any of it's affiliated locations.
IN WITNESS WHEREOF, the Adult has signed this Participation Agreement as of the Effective Date. Any minor must have his or her parent or legal guardian sign this Agreement before that minor can participate in any activities or Use of Facility at the Play Center. XPLORE may rely completely on the representation made by an individual who claims to be the parent or guardian of a participant and shall not be obligated to independently verify whether or not such individual is in fact the parent or legal guardian of the participant. By signing this Agreement for yourself without a parent or guardian also signing, you are representing to XPLORE that you are at least 18 years of age and that you agree to all of the above terms and conditions.
ASSUMPTION OF RISK: By signing this waiver I have read and understood the above warning concerning COVID-19. I hereby choose to accept the risk of contracting COVID-19 for myself and/or my children in order to utilize XPLORE’s services and enter XPLORE’s premises. These services are of such value to me and/or to my children, that I accept the risk of being exposed to, contracting, and/or spreading COVID-19 in order to utilize XPLORE’s services and premises.
WAIVER OF LAWSUIT/LIABILITY: I hereby forever release and waive my right to bring suit against XPLORE and its owners, officers, directors, managers, officials, trustees, agents, employees, or other representatives in connection with exposure, infection, and/or spread of COVID-19 related to utilizing XPLORE’s services and premises. I understand that this waiver means I give up my right to bring any claims including for personal injuries, death, disease or property losses, or any other loss, including but not limited to claims of negligence and give up any claim I may have to seek damages, whether known or unknown, foreseen or unforeseen.
Today's Date: October 23, 2020