READ CAREFULLY BEFORE SIGNING This Release, Assumption of the Risk, Waiver of Liability, Limitation of Liability, and Indemnity Agreement (“Agreement”) is entered into this: March 26, 2023 by, and the Authorized Adult signatory below if is a minor (collectively, “Participant”), and Top Choice Athlete’s, L.L.C., an Arizona limited liability company also doing business as RBI Hitting Academy and Top Choice Sports & Performance (“Top Choice”). Top Choice is an Arizona limited liability company that provides: (1) batting cage facilities, weightlifting facilities, fitness facilities, and various types of sport, personal fitness, conditioning and training activities (including personal training, speed and agility training, weight training, etc.), for a fee; and (2) an opportunity for other individuals to come on premises and/or spectate the foregoing activities without a fee. The activities described in (1) and (2) are collectively referred to herein as the “Activities.” In consideration for Top Choice granting Participant the opportunity to participate in any of the Activities, Participant agrees to read and enter into this Agreement, and to comply with all terms and provisions hereof. Top Choice would not allow Participant to engage or participate in the Activities (including coming on premises and/or spectating) without Participant (and, for a minor Participant, the Authorized Adult both) reading, entering into, and agreeing to be bound by this Agreement. A. Acknowledgment of Dangers and Safety. Participant acknowledges that the Activities, and engaging in the Activities (including but not limited to any form of physical exercise, sport, and/or recreational activities, spectating, and merely being on the premises), are inherently dangerous and may cause illness, serious injury (physical and/or mental), and even death, and that participation in the Activities carries with it certain risks, some of which cannot be eliminated regardless of the care taken to avoid injuries. Participant acknowledges that s/he is fully aware of the hazards and dangers involved in the Activities, including, but not limited to: (1) physical contact with persons and objects, moving or stationary, natural or manmade; (2) encountering imperfect, changing, varied or defective courses, property, Equipment (as that term is defined below), weather conditions and circumstances; (3) the unavailability or lack of proximity of emergency medical care; (4) the improper acts or conduct of other persons; (5) participating in Activities with persons of mixed and varying levels of skill and experience; (6) risks and dangers that may exist from the ordinary or gross negligence of the Indemnified and Released Parties (as that term is defined below); (7) injuries that may occur, be compounded, or be increased by ordinary or grossly negligent rescue operations, procedures, or otherwise; (8) slipping, tripping, falling, scrapes, bruises, cuts, abrasions, sprains, strains, tears, and joint, muscle, and bone injuries (including breaks and fractures); (9) concussions and other head injuries; (10) heat-related injuries (including heat stroke and heat exhaustion); (11) injuries from dehydration and over hydration (such as hyponatremia); (12) heart attacks and strokes; and (13) other conditions and injuries of every type and kind (regardless of cause) that could cause serious physical or mental injury, or that could be fatal. Participant acknowledges that irrespective of any instructions that might be provided with respect to the Activities, Participant will be in primary control of him/herself during the Activities. Participant acknowledges that his/her safety largely depends upon Participant’s awareness of him/herself, his/her surroundings, as well as his/her limitations and physical condition. Participant also acknowledges that his or her safety also depends upon complying, and Participant will comply, with the rules, regulations, and instructions of Top Choice and its employees and agents. If at any time Participant feels anything is unsafe about the Equipment or Activities, Participant will immediately cease using the Equipment, immediately cease the Activities, and will immediately notify Top Choice thereof. Participant will immediately notify Top Choice of any accidents or injuries occurring during Participant’s participation in the Activities even if such accidents or injuries do not appear to Participant to have caused harm to Participant, Top Choice employees/agents, or third parties. Participant is advised by Top Choice to consult with a physician before engaging in the Activities. By Participant’s signature below, Participant certifies that s/he has done so and the physician has not advised against participating in the Activities, and that Participant is in good health and sufficient physical and mental condition to properly, safely and capably participate in the Activities. Participant agrees to be responsible for his or her own safety and is willing and able to accept full responsibility for his or her own safety and welfare. Participant understands and acknowledges that Top Choice will NOT provide medical insurance for Participant, nor does Top Choice assume responsibility for the actions of Participant or any third party. Participant acknowledges that, as further set forth in Paragraph D below, Participant releases and covenants not to sue Top Choice (and the other Indemnified and Released Parties, as that term is defined below) for any Damages (as that term is defined below) in any way related to (i) the Activities or (ii) the Indemnified and Released Parties’ ordinary or gross negligence. B. Damage to Equipment. Participant hereby assumes all risks involved in operating any equipment (including accessories) provided by Participant, Top Choice or any third party (“Equipment”). Participant further acknowledges, agrees, represents and warrants that Participant has and will continuously inspect the Equipment (including accessories). With the exception of damage to the Equipment solely and directly caused by Top Choice, Participant will be responsible for paying all costs and expenses of any damage to the Equipment occurring during Participant’s use or possession thereof (and, further, by Participant using the Equipment, Participant acknowledges and represents that the Equipment is not damaged as of Participant taking possession). In the event Top Choice incurs any such costs or expenses repairing or replacing the Equipment, including employee time, Participant agrees to reimburse Top Choice upon demand therefor (such repairs or replacement will be at full retail value/cost of the repair or replacement of the Equipment). Top Choice is authorized to charge Participant’s credit card for such repairs and/or replacement. Participant will immediately notify Top Choice of any accidents occurring during Participant’s use of the Equipment even if such accident does not appear to Participant to have caused damage to the Equipment. C. Indemnity. Participant will indemnify, protect, defend, and hold harmless Top Choice, its agents, employees, contractors, officers, directors, members, managers, landlords, insurers, and affiliated organizations (collectively, the “Indemnified and Released Parties”) from any and all (both economic and non-economic) losses, claims, demands, obligations, liabilities, indebtedness, causes of action, fines, penalties, damages, costs, attorney’s fees, and expenses, of every type, kind, nature, description, and character, including (but not limited to) those for bodily injury, death, and property damage, (collectively, “Damages”) asserted in connection with, arising from, or related to, in whole or in part, the following: (1) Participant engaging in the Activities, including, but not limited to, Participant’s use or operation of the Equipment; and/or (2) any act or omission of Participant relating to the Activities or otherwise occurring on or in proximity to the premises. The foregoing obligations include Participant’s obligation to indemnify, protect, defend and hold harmless the Indemnified and Released Parties even in the event of the Indemnified and Released Parties’ own ordinary or gross negligence (whether active or passive). D. Release. Participant further agrees that, except in the event of harm caused intentionally or recklessly by the Indemnified and Released Parties, Participant hereby assumes the risk of, and releases, waives, discharges, and covenants not to sue the Indemnified and Released Parties for, the following: (1) any Damages in connection with, arising from, or related to, in whole or in part, the Activities, including, but not limited to, Participant’s use or operation of the Equipment; and (2) the ordinary or gross negligence of the Indemnified and Released Parties. Participant hereby waives all rights of subrogation against the Indemnified and Released Parties. Notwithstanding the other provisions of this Agreement, in the event that an arbitrator (or court) of competent jurisdiction finds any of the Indemnified and Released Parties to be liable to Participant for any Damages, the parties hereto agree that the maximum amount of such Damages, and the collection thereof, will be limited to the amount of insurance actually available and payable on behalf of the Indemnified and Released Parties to satisfy such Damages. E. Medical Care. In the event of any emergency, Participant authorizes Top Choice to contact emergency services and attempt to secure from any hospital, physician, and/or medical personnel any treatment deemed reasonably necessary for his/her immediate care, and agrees that s/he will be responsible for payment of any and all emergency and medical services rendered, provided however, the Indemnified and Released Parties are not responsible or required to provide medical care or attention. For the avoidance of doubt, the scope of Paragraph D of this Agreement includes within it the release, waiver, discharge, and covenant not to sue for any claims or allegations relating to acts and/or omissions regarding securing, obtaining, and/or providing such emergency and medical services. F. Interpretation of Agreement; Severability; Binding Effect. Participant acknowledges that this Agreement, including, but not limited to, the release and indemnity provisions (Paragraphs C and D above), is intended to be as broad and inclusive as is permitted by Arizona law and that if any portion hereof, including any clause, phrase, or word, is held invalid or in conflict with Arizona law, such clause, phrase, or word, will be fully severable, and the balance of this Agreement will nevertheless continue in full legal force and effect. This Agreement will be legally binding upon Participant, Participant’s heirs, estate, personal representatives, assigns, guests, invitees, and licensees, including all minor children, and will be interpreted according to Arizona law. G. Mandatory Arbitration of Disputes; Location of Disputes; Waiver of Jury Trial. All disputes arising out of or related to this Agreement, the Activities, or otherwise existing or arising between the parties (and their respective privies, successors, and assigns) (“Disputes”) will be submitted to binding arbitration before a single arbitrator in Pima County, Arizona, in accordance with the Federal Arbitration Act, 9 U.S.C. §1 et seq. (or, if deemed inapplicable by an arbitrator or court of competent jurisdiction, in accordance with the Arizona Revised Uniform Arbitration Act, A.R.S. §§ 12-3001 et seq.). The parties agree to resolve their Disputes through use of a private arbitrator, and agree to give up the right to pursue a lawsuit in the courts. The parties further agree to waive and hereby waive any right to a trial by jury. The arbitration will be conducted pursuant to the rules of the American Arbitration Association. The arbitration award will be final and binding upon the parties, and may be entered as a judgment in any court of competent jurisdiction. The state and federal courts of Pima County shall have exclusive original jurisdiction of all court proceedings relating to the arbitration. SIGNER STATEMENT OF AWARENESS I, the undersigned, have carefully read this Agreement and understand the foregoing acknowledgements, agreements, warnings, risks, indemnity, release, waiver, discharge, assumption of risk, and covenant not to sue, and fully understand its terms. I also understand and agree that I am intentionally relinquishing substantial rights by signing this Agreement – including the right to pursue claims against the Indemnified and Released Parties for ordinary or gross negligence – and have signed it freely and voluntarily without any inducement, assurance, or guarantee being made to me in return for being permitted to engage in the Activities, and intend my signature to be a complete and unconditional release of all liability and other rights as set forth above to the greatest extent allowed by law. I further attest that all facts relating to my physical condition, experience, and age are true and accurate. Date: March 26, 2023 |
