I, as parent or guardian on behalf of Minor, (“Minor Participant”), have voluntarily elected to allow Minor Participant to use the FlannelJax's services, facilities and equipment located at 755 Prior Avenue, Suite 102, St. Paul, MN 55104 (the “FlannelJax's Facility”). In consideration for being permitted to use said services, facilities and equipment provided by KAM Sharp Enterprises Inc., KAM Sharp Franchising America Inc. and their respective and collective agents, owners, officers, managers, directors, shareholders, affiliates, volunteers, participants, employees, and all other persons or entities acting in any capacity on their respective or collective behalf (collectively, “FlannelJax's”), at said location, or any other location within the State of Minnesota, I represent, acknowledge and agree as follows:
COVID-19 WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT
1) I understand the hazards of the novel coronavirus (“COVID-19”) and am familiar with the Centers for Disease Control and Prevention (“CDC”) guidelines regarding COVID-19. I acknowledge and understand that that the circumstances regarding COVID-19 are changing from day to day and that, accordingly, the CDC guidelines are regularly modified and updated and I accept full responsibility for familiarizing myself with the most recent updates.
2) Notwithstanding the risks associated with COVID-19, which I readily acknowledge, in consideration for being permitted to use the facilities, equipment, and any other services provided by KAM Sharp Enterprises Inc., its affiliates, employees or agents at the FlannelJax’s location at 755 Prior Avenue, Suite 102, St. Paul, MN 55104 (the “Activities”), I hereby willingly choose to participate in the Activities.
3) I acknowledge and fully assume the risk of illness or death related to COVID-19 arising from my being on the premises and participating in the Activities and hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE (on behalf of myself and any minor children for whom I have the capacity contract) KAM Sharp Enterprises Inc., their owners, officers, directors, agents, employees and assigns (the “RELEASEES”) from any liability related to COVID-19 which might occur as a result my being on the premises and participating in the Activities.
4) I shall indemnify, defend and hold harmless the RELEASEES from and against any and all claims, demands, suits, judgments, losses or expenses of any nature whatsoever (including, without limitation, attorneys’ fees, costs and disbursements, whether of in-house or outside counsel and whether or not an action is brought, on appeal or otherwise), arising from or out of, or relating to, directly or indirectly, the infection of COVID-19 or any other illness or injury.
5) It is my express intent that this Waiver and Hold Harmless Agreement shall bind any assigns and representatives, and shall be deemed as a RELEASE, WAIVER, DISCHARGE, AND COVENANT NOT TO SUE the above-named RELEASEES. This Agreement and the provisions contained herein shall be construed, interpreted and controlled according to the laws of the State of Minnesota. I HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A JURY TRIAL OF ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT. I ACKNOWLEDGE THAT THIS WAIVER WAS EXPRESSLY NEGOTIATED AND IS A MATERIAL INDUCEMENT FOR THE PERMISSION GRANTED BY RELEASEES TO ALLOW ME (AND THOSE FOR WHOM I CONTRACT) TO BE ON THE PREMISES AND TO PARTICIPATE IN THE ACTIVITIES.
IN SIGNING THIS AGREEMENT, I ACKNOWLEDGE AND REPRESENT THAT I have read the foregoing COVID-19 Wavier of Liability and Hold Harmless Agreement, understand it and sign it voluntarily as my own free act and deed; no oral representations, statements, or inducements, apart from the foregoing written agreement, have been made; I am at least eighteen (18) years of age and fully competent; and I execute this Agreement for full, adequate and complete consideration fully intending to be bound by same.
IN WITNESS WHEREOF, I have signed this Waiver and Agreement on March 5, 2021
Signature of parent or guardian:
I acknowledge and agree that this Agreement covers and is intended to release and provide other benefits, legal protections and consideration to FlannelJax’s. I represent that I have full legal authority to enter into this Agreement on behalf of the Minor Participant. I also agree that all references, consents, waivers, releases, promises and agreements of any kind contained in this Agreement are given on behalf of the Minor Participant and myself to the extent legally required regardless of any terminology limitations in this Agreement.
The Minor Participant is at least 13 years of age, has not consumed alcohol, drugs or any substance that affects their physical or mental abilities, prior to the FlannelJax’s Activities; does not suffer from any medical, mental, psychological or other condition which may be aggravated by or impair his/her ability to participate in FlannelJax’s Activities in a safe and responsible manner; will be supervised by me and will obey all FlannelJax’s rules and regulations.
INFORMED CONSENT TO RISKS
I acknowledge and agree that the use of axes, hatchets, saws, mallets, nails and the other equipment at the FlannelJax's Facility and that participating in axe throwing, sawing, hammering and all FlannelJax’s games and activities (“FlannelJax’s Activities”) is inherently and obviously dangerous. These risks include serious physical or emotional injury, paralysis, death, or damage to myself, minor children and others, 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 FlannelJax’s Activities, which I further agree is for recreational purposes, does not involve a public interest and is completely voluntary. I acknowledge and agree that, while FlannelJax’s Activities that take place at the FlannelJax's Facility are monitored generally by FlannelJax's 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, FlannelJax's Facility employees have difficult jobs to perform. They strive to achieve 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.
VOLUNTARY ASSUMPTION OF RISK
I acknowledge and agree that participation is voluntarily and at Minor Participant’s own risk. I acknowledge and agree that the actions or activities of other customers or the actions or inactions of FlannelJax's could cause significant bodily injury (as described in this Agreement or otherwise), and that FlannelJax's is not responsible for the actions or activities of customers using the FlannelJax's Facility or Activities, or the negligence of FlannelJax's. Some of the risks include, but are not limited to, the following:
a) Participants may suffer minor injuries such as scratches, bruises, splinters, and cuts through the use of FlannelJax's Facility equipment or surfaces they have contacted;
b) Participants may suffer the transmission of disease strains and allergic reactions through use of the FlannelJax's Facility equipment or contact with other participants or surfaces they have contacted;
c) Participants may sprain, pull, break or otherwise seriously externally or internally injure their joints, back, spine, arms, wrists, hands, legs, ankles, feet or other body parts as a result of throwing axes, participating in other activities or making contact with other participants;
d) Participants may experience eye injury or loss of sight;
e) Participants may experience heat stroke, heart attacks, dehydration and other exertion-related medical events;
f) Participants may experience catastrophic injury, die or become paralyzed, partially or fully, through their use of the FlannelJax's Facility and Activities; or,
g) Participants observing, standing, sitting or taking photographs at or near any FlannelJax's Facility activity may suffer similar physical injury (even if the observer is not himself or herself participating at the time).
AGREEMENT TO PAY MEDICAL EXPENSES
I acknowledge, accept, and assume the risk of any and all medical conditions, limitations, or disabilities (whether temporary or permanent) that Minor Participant possess, whether known or unknown, which might contribute to or exacerbate any injury Minor Participant might sustain as a result of using the FlannelJax's Facility or Activities. 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 Minor Participant sustains while using the FlannelJax's Facility or Activities, such assistance shall be at my own expense, either as paid directly or pursuant to prompt reimbursement relative to costs and charges incurred on my behalf.
RELEASE OF LIABILITY
I and my spouse or domestic partner and my respective and/or collective issue, parents, siblings, heirs, assigns, personal representatives, estate(s), and anyone else who can claim by or through me on behalf of myself or who can claim on behalf of Minor Participant shall collectively be known under this document and waiver as the “Releasing Parties”.
The Releasing Parties hereby forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability and covenant not to sue FlannelJax's, their successors, predecessors-in-interest, 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 Minor Participant’s access to and/or use of the FlannelJax's Facility, premises and/or its equipment, Minor Participant’s entry into the FlannelJax's Facility, the condition, maintenance, inspection, supervision, control or security of the FlannelJax's Facility, the failure to warn of dangerous conditions in connection with the FlannelJax's Facility, FlannelJax’s Activities and/or the acts or omissions of FlannelJax's or any of the Releasees, including, without limitation, any claim for negligence, failure to warn, failure to supervise or other omission, property damage, personal injury, emotional injury, illness, bodily harm, paralysis or death. I understand that this release and waiver applies to and includes all activities that Minor Participant engage in at the premises, whether inside or outside the FlannelJax's Facility. Notwithstanding anything to the contrary, nothing in this Agreement purports or intends to waive liability for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence.
In the event that any negligence claim against a Releasee, including but not limited to such claims of negligence that are based upon acts or omissions that pre-date this Agreement, 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. I agree and acknowledge that should FlannelJax's or any other Releasee or anyone acting on their behalf, be required to incur attorneys' fees and/or costs to enforce this agreement or defend the enforceability of this Agreement, I agree to immediately defend, indemnify and hold FlannelJax's 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, on my own behalf, on behalf of Minor Participant, and on behalf of the Releasing Parties, agree to determine and resolve any dispute pertaining to or arising out of my access to and/ or use of a FlannelJax's Facility and Activities, hereby agree to arbitrate the matter pursuant to the terms described herein. I understand that by agreeing to arbitrate any dispute as set forth in this section, I am waiving my right to maintain a lawsuit against FlannelJax's 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. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY ACCESS TO AND/OR USE OF THE FLANNELJAX'S FACILITY AND ACTIVITIES, 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 THE FLANNELJAX'S FACILITY 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 Minnesota 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.
PHOTO/VIDEO/SOCIAL MEDIA WAIVER
In connection with my use of the FlannelJax's Facility, I consent to the recording the physical likeness and/or voice of me and Minor Participant and any other minor accompanying me; through mechanical, photographic, technical, digital, electronic or other means (“Recordings”). I hereby consent to and authorize FlannelJax's and its agents, representatives, employees, successors and assigns to use, in perpetuity, such Recordings, and my name, for any purpose, including advertising, promoting, exploiting and/or publicizing any FlannelJax's Facility or Activities. I further agree that the foregoing includes the consent to use our physical likeness in any form. In addition, I waive any and all claims we may have in connection with the Recordings.
I also grant FlannelJax's the same right and permission to use written or verbal statements or testimonials (“Statements”) made by me, Minor Participant and any other minor accompanying me. I also waive any and all claims we may have in connection with the Statements.
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 we visit a FlannelJax's Facility, whether at the current location or any other location or facility.
SAFETY IS YOUR RESPONSIBILITY: I AGREE TO FOLLOW THE CODE OF PATRON RESPONSIBILITY ON BEHALF OF MYSELF AND MINOR PARTICIPANT:
a) Participants acknowledge that there are inherent risks in the participation in the sport of axe throwing, and that such risks include not only axe-throwing and the use of axes, but other activities and the use of other equipment. Participants in the sport of axe throwing, 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. Participants have a duty to exercise good judgment and act in a responsible manner while using the axe throwing equipment and facility and other equipment, and while engaging in such activities. Participants have a duty to obey all oral or written warnings, or both, prior to or during participation, or both.
b) Participants have a duty to not participate in any axe throwing activity or engage in any other activity or use any other equipment, when under the influence of drugs or alcohol and hereby acknowledge that the sale or consumption of alcohol at the FlannelJax's Facility is not a waiver or exemption of this provision.
c) Participants have a duty to properly use all safety equipment provided.
d) Participants have a duty to not participate in any activity on any axe throwing court, or engage in other activities or use other equipment, if I or Minor Participant have pre-existing medical conditions, circulatory conditions, heart or lung conditions, recent surgeries, back or neck conditions, high blood pressure or may be pregnant.
e) Participants have a duty to wear closed toe shoes and remove inappropriate attire including hard, sharp or dangerous objects such as buckles, pens, purses, badges and so forth.
f) Participants have a duty to play responsibly. This includes: 1) To permit only one Participant per lane in the throwing zone; 2) To permit only two Participants in the court which consists of two lanes; 3) To never retrieve an axe before the other Participant throws their axe; 4) To only retrieve an axe from the throwing zone, 5) After retrieving an axe, to handle it in a safe manner; 6) After finishing a throwing session, to return the axe to its holder; 7) To never remove an axe from the throwing zone; and 8) To obey all instructions, verbal or otherwise, from FlannelJax's Facility employees.
g) Participants have a duty to use the FlannelJax's axe throwing equipment, and other equipment, within their own limitations, training and acquired skills.
h) Participants agree to follow and obey all posted, oral and stated warnings and education signs.
I have had sufficient opportunity to read this document. I certify that I am the greater of the age of majority of the jurisdiction of operation of FlannelJax's or 18 years of age. I have read and understood and agree on behalf of myself and Minor Participant, to be bound by these terms. I acknowledge that this Agreement is also binding upon the Releasing Parties. I understand that employees working at the FlannelJax's 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 FlannelJax's and me relating to use of the FlannelJax's Facility and Activities. 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.
IN SUMMARY, BY MY SIGNATURE BELOW, I AM AWARE AND AGREE THAT I AM GIVING UP ANY RIGHT TO BRING A LEGAL ACTION OR ASSERT A CLAIM AND AM GIVING UP SUBSTANTIAL RIGHTS I AND MINOR PARTICIPANT AND RELEASING PARTIES WOULD OTHERWISE HAVE AGAINST FLANNELJAX'S FOR ITS NEGLIGENCE AND SIGN IT VOLUNTARILY AND WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE BEING MADE, AND INTEND THIS AGREEMENT TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.
By applying my electronic signature to this agreement, I agree that my electronic signature is the legally binding equivalent of my handwritten signature on paper. I will not, at any future time, claim that my electronic signature is not legally binding or enforceable. My signature applies to all pages of this contract.
I understand that I will receive a Portable Document Format (PDF) version of this agreement after it is signed and sent to the email address I have provided. To view the PDF document, I understand that I will need software that enables me to receive and access PDF files such as Adobe Reader software or other software capable of reading a PDF file. In order to print and retain a hard copy of this agreement, I understand that I will also need a printer connected to my computer.
I agree to the terms of the above agreement.
Date: March 5, 2021