THIS CONSENT, RELEASE, AND INDEMNIFICATION AGREEMENT (“Release”) is entered into by the undersigned, individually and on behalf of the minor child whose name is set forth on the signature page (“Minor”), in favor of Kilham Farm, Inc., a California Corporation, and its Member, officers, employees, contractors, agents, successors and assigns (singularly, a “Released Party” and collectively, “Released Parties” ) Recitals: A. Released Party owns and operates an equestrian facility located at 3431 Nicasio Valley Road, Nicasio, California ( “Kilham Farm” ). B. The Minor is under eighteen years of age. C. I desire that the Minor be permitted to participate in the sport of horseback riding at Kilham Farm on and to otherwise use and have access to the facilities of Kilham Farm. D. Released Party has agreed to permit me to engage in horseback riding at Kilham Farm and to otherwise use and have access to its facilities of, in exchange for my agreements set forth in the Release on behalf of the Minor. Agreement: In consideration of the Minor being permitted by Released Parties to participate in the sport of horseback riding at Kilham Farm, and to use or have access to the facilities of Kilham Farm (whether or not on a fee basis). I acknowledge and agree as follows: 1. CAPACITY : The Minor was born on the date listed below. I am entering into this Release for and on behalf of the Minor in my capacity indicated below. ( 2. HAZARDOUS ACTIVITY : The Minor and I are aware of, and understand, the following: 2.1 Horses are powerful, unpredictable, and potentially uncontrollable animals, All horses, even those that are well trained and appear calm and docile, may and will buck, rear, kick, bite, run and bolt uncontrollably, without warning, and without apparent cause or in response to external stimuli (such as wind, sound, movement, other horses and animals, motor vehicles, bicycles, machinery, doors, or other inanimate objects) that may induce fear, panic, anger or reflex actions in the horse. Serious, permanent bodily injury, disability or death of myself, the Minor or others within the vicinity of horses, may result from the handling, training, exercising, care or riding of horses, or being in the vicinity of horses, and that horses and other property belonging to the Minor, me or others may be, as applicable, killed, injured, lost or damaged. 2.2 In the ordinary course of business, motor vehicles (with or without trailers) and bicycles continuously enter and exit the Kilham Farm property in close Proximity to the areas, and in the same areas, in which horses are kept groomed, and ridden. Furthermore, tractors and other machinery are used on a daily basis in the operation, maintenance and repair of Kilham Farm , people are working, walking, running, riding and handling horses, lunging and “turning out” horses, dogs bark, flags and other objects wave, and other activities, conditions, and distractions occur at Kilham Farm, all on a daily basis, in close proximity to horses. Such items, activities, conditions, and objects may cause horses to react in an unpredictable and dangerous manner, without warning. 2.3 Riding rings at Kilham Farm are either uncovered or only partially enclosed and rain or run-off may enter the rings, causing the riding surface to become slippery, and that the slippery nature of the riding surface may not be apparent upon visual inspection. The roads, grounds and fields at Kilham Farm may at any time be wet, icy, slippery, rutted, eroded, rocky or contain holes. 3. VOLUNTARY PARTICIPATION . THE MINOR AND I ARE AWARE AND UNDERSTAND THAT THE HANDLING, CARE, TRAINING, EXERCISING AND RIDING OF HORSES AND BEING IN CLOSE PROXIMITY OF HORSES AND SUCH ACTIVITIES ARE INHERENTLY HAZARDOUS ACTIVITIES, AND THAT I AM VOLUNTARILY PERMITTING THE MINOR TO PARTICIPATE IN SUCH ACTIVITIES, WITH FULL KNOWLEDGE OF THE DANGERS INVOLVED. 4. ASSUMPTION OF RISK. I HEREBY ACCEPT AND ASSUME ANY AND ALL RISKS, INCLUDING, WITHOUT LIMITATION, OF INJURY, PERMANENT BODILY INJULY, DISABILITY, ILLNESS, DISEASE, OR DEATH TO THE MINOR AND ALL OTHER PERSONS AND OF LOSS, DAMAGE OR DESTRUCTION OF THE MINOR’S PERSONAL PROPERTY AND THE PERSONAL PROPERTY OF OTHER PEOPLE. WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATIONS, ANY RELEASED PARTY, ARISING FROM OR IN CONNECTION WITH (a) THE CARE, HANDLING, TRAINING, EXERCISING OR RIDING OF HORSES AND BEING WITHIN THE CLOSE PROXIMITY OF HORSES AND SUCH ACTIVITIES BY THE MINOR AND OTHER PEOPLE AT KILHAM FARM , (b) THE ACTIONS OF THE MINOR’S OR ANY OTHER PERSON’S HORSES, WHETHER OR NOT SUCH HORSES ARE UNDER THE CONTROL OF THE MINOR OR ME, AND (c) THE CONDITIONS OF THE FACILITIES, GROUNDS, AND FIELDS AT KILHAM FARM AND THE MINOR’S USE OF THE SAME. I HEREBY VERIFY THE FOREGOING STATEMENT BY PLACING MY INITIALS HERE: 5. SAFETY EQUIPMENT . I UNDERSTAND AND AGREE THAT THE MINOR SHOULD WEAR PROPER SAFETY EQUIPMENT AT ALL TIMES WHILE RIDING A HORSE AT KILHAM FARM , INCLUDING, WITHOUT LIMITATION, A HELMET AND RIDING BOOTS, AND THAT IT IS MY RESPONSIBILITY, AND NOT THAT OF RELEASED PARTIES, TO ENSURE THAT THE MINOR COMPLIES WITH THIS REQUIREMENT. I ACKNOWLEDGE THAT IT IS MY RESPONSIBILITY TO ENSURE THAT THE MINOR HAS BEEN FULLY INSTRUCTED IN THE PROPER METHODS OF HANDLING AND RIDING A HORSE, INCLUDING, WITHOUT LIMITATION, THE USE OF SAFETY EQUIPMENT AND THE HANDLING OF HORSES WHEN THEY ACT UNPREDICTABLY. 6. RIDING LESSONS If permitting the minor to participate in riding lessons at Kilham Farm , I agree that the Minor, and not the instructor or any other person, will be responsible for maintaining control of the horse the Minor rides. 7. EMERGENCY VETERINARY CARE. If the Minor’s horse or another horse in the Minor’s or my possession or under the Minor’s or my control becomes sick or injured, it may be necessary (or reasonably appear necessary) for immediate veterinary first aid or care to be administered, and it may be necessary to transport such horse to a veterinary clinic or other facility at which veterinary care may be administered. I agree that Released Parties may administer or arrange for first aid to the Minor’s horse and any other horse in the Minor’s or my possession or under the Minor’s or my control and may transport such horse to a veterinarian or veterinary care facility. I further agree that if any Released Party reasonably believes that the Minor’s horse or any other horse in the Minor’s or my possession or under the Minor’s or my control requires emergency veterinary care, and if they are unable to contact me in such emergency situation, they may, at my own expense and risk, call a veterinarian of their choice to administer veterinary care to such horse. Any such care or transportation shall be at my own expense and risk, and I agree to compensate the Released Parties for such care and transportation, I understand and agree that nothing in this Release created any duty on the part of Released Parties to administer any type of aid to, arrange transportation for, or obtain veterinary care for the Minor’s horse or any other horse in the Minor’s or my possession or under the Minor’s or my control. 8. PERSONAL PROPERTY. I agree that if the Minor brings any personal property to Kilham Farm , and if the Minor stores or leaves any personal property at Kilham Farm (including, without limitation, property left in any tack room), the Minor will do so at the Minor’s and my own risk, and none of the Released Parties shall have any liability to the Minor, me or any third party in the event of the loss, damage, unauthorized use (by any person other than a Released Party), of theft of any such property. 9. AGREEMENT NOT TO SUE. I HEREBY AGREE THAT NEITHER I NOR THE MINOR’S HEIRS, DISTRIBUTEES, GUARDIANS, LEGAL REPRESENTATIVES, AND ASSIGNS WILL MAKE A CLAIM AGAINST, SUE, DEMAND COMPENSATION OR INDEMNITY FROM, OR ATTACH ANY OF THE PROPERTY OR ASSETS OF, THE RELEASED PARTIES, AND EACH OF THEM, FOR ANY LOSS OR DAMAGE ARISING OR RESULTING FROM ANY BODILY INJURY, DISABILITY, ILLNESS, DISEASE, DEATH, FINANCIAL LOSS, PROPERTY LOSS, DAMAGE, OR DESTRUCTION, OR OTHER HARM OF WHATEVER NATURE. WHETHER FORESEEN OR UNFORSEEN, THAT MAY BE SUSTAINED OR SUFFERED BY THE MINOR OR ANY OTHER PERSON AS A DIRECT OR INDIRECT CONSEQUENCE OF THE FOLLOWING, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF ANY OF THE RELEASED PARTIES: (a) THE MINOR’S PARTICIPATION, OR THE PARTICIPATION OF ANY OTHER PERSON, IN THE HANDLING, CARE, EXERCISING, TRAINING OR RIDING OF HORSES, OR BEING IN THE PROXIMITY OF HORSES OR SUCH ACTIVITIES, (b) THE ACTIONS OF THE MINOR’S HORSE OR THOSE OF ANY OTHER PERSON’S HORSE, WHETHER OR NOT THE HORSE IS UNDER THE MINOR’S OR MY CONTROL, (c) THE CONDITION OF THE FACILITES, GROUNDS AND FIELDS OF KILHAM FARM AND THE MINOR’S USE OF THE SAME, OR (d) THE TRANSPORTATION OF THE MINOR’S HORSE, OR ANY OTHER HORSE, FOR VETERINARY CARE, OR THE ADMINISTRATION OF ANY AID OR VETERINARY CARE TO ANY SUCH HORSES, OR THE FAILURE TO ARRANGE FOR ANY SUCH TRANPORTATION, AID OR CARE. 10. RELEASE. ON BEHALF OF THE MINOR, MYSELF, AND OUR RESPECTIVE HEIRS, DISTRIBUTEES, GUARDIANS, LEGAL REPRESNTATIVES, AND ASSIGNS, I HEREBY RELEASE AND FOREVER DISCHARGE THE RELEASED PARTIES, AND EACH OF THEM, FROM ALL CLAIMS, ACTIONS, DEMAND, RIGHTS, CAUSES OF ACTION, AND LIABILITIES, EITHER IN LAW OR IN EQUITY, BASED ON ANY BODILY INJURY, DISABILITY, ILLNESS, DISEASE, DEATH, FINANCIAL LOSS, PROPERTY LOSS, DAMAGE OR DESTRUCTION, OR OTHER HARM OF WHATEVER NATURE. WHETHER FORESEEN OR UNFORSEEN, THAT MAY BE SUSTAINED OR SUFFERED BY ME OR BY ANY OTHER PERSON AS A DIRECT OF INDIRECT CONSEQUENCE OF THE CIRCUMSTANCES LISTED IN SECTIONS 9 (a) THROUGH 9 (d) WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF ANY OF THE RELEASED PARTIES OR OTHERWISE: PROVIDED, THAT NOTHING IN THIS SECTION 10 SHALL BE DEEMED TO RELEASE ANY RELEASED PARTY FROM LIABILITY ARISING FROM (a) RELEASE PARTY’S OWN WILLFUL INJURY OF THE MINOR OF THE MINOR’S PROPERTY, (b) RELEASED PARTY’S FRAUD OR (c) RELEASE PARTY’S VIOLATION OF ANY LAW. I, ON BEHALF OF MYSELF, THE MINOR AND OUR RESPECTIVE HEIRS, DISTRIBUTEES, GUARDIANS, LEGAL REPRESENTATIVES, AND ASSIGNS, EXPRESSLY WAIVE ALL RIGHTS AND BENEFITS AFFORDED BY SECTION 1542 OF THE CALIFORNIA CIVIL CODE AND ACKOWLEDGE THAT I AM FAMILIAR WITH AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR . ” NOTWITHSTANDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 AND FOR PURPOSE OF IMPLEMENTING A FULL AND COMPLETE RELEASE AND DISCHARGE OF RELEASED PARTIES, I EXPRESSLY ACKNOWLEDGE ON BEHALF OF MYSELF AND THE MINOR THAT THIS RELEASE IS ALSO INTENDED TO INCLUDE IN ITS EFFECT, WITHOUT LIMITATION, ALL CLAIMS WHICH THE MINOR AND I DO NOT KNOW OR SUSPECT TO EXIST IN FAVOR OF THE MINOR OR ME AT THE TIME OF MY EXECUTION OF THIS RELEASE. 11. INDEMNIFICATION. I AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DEMAND, LIABILITIES, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY FEES) ARISING FROM OR IN CONNECTION WITH THE INJURY, DISABILITY, ILLNESS, OR DEATH OF THE MINOR OR ANY PERSON WHOM THE MINOR OR I BRING OR INVITE TO KILHAM FARM , OR OTHERWISE PERMIT TO BE IN THE VICINITY OF ANY HORSE IN THE MINOR’S OR MY POSSESSION OR UNDER THE MINOR’S OR MY CONTROL, OR THE DAMAGE, DESTRUCTION, OR LOSS OF ANY OF THE MINOR’S OR OTHER PERSONS’ PROPERTY. 12. SPONSORS AND INVITEES. I agree that neither the Minor nor I will permit any person (other that the released parties) to ride the Minor’s or my horse at Kilham Farm unless such person has duly signed and delivered to the Released Parties a form of this Release and other applicable form required by Kilham Farm . I agree that the damages to be suffered by the Released Parties as a result of the breach of this Section 12 by the minor or me include, but are not limited to, (a) the liabilities of Released Parties that would have been released by such person under this release, and (b) the costs and expenses of Released Parties defending the claims, suits, and demand that such person would have agreed not to make or institute under this Release (including, without limitation, attorneys’ and expert witnesses’ fees and costs): and I agree to indemnify, defend, and hold harmless each of the Released Parties from and against all such liabilities, costs, and expenses. 13. REPRESENTATIONS AND WARRANTIES . I represent and warrant: (a) I have read this Release carefully and I fully understand all of its terms and provisions: (b) I am 18 years of age or older and am legally competent to enter into this Release: (c) no promise, inducement, or agreement has been offered or made to the Minor or me by any Released Party in connection with my execution and delivery of this Release; (d) I have knowingly and voluntarily executed and delivered this release at my own risk and initiative and my own free will, without relying on any consented to the Minor’s being present on the facilities of Kilham Farm , and to participating in the activities described in this Release; and (e) I have thoroughly explained this Release to the Minor and the Minor understands and appreciated the significance of each and every section of this Release, provided that to the extent that the Minor is too young to understand and appreciate any portion of this Release, I acknowledge and agree that I will make such arrangements as are necessary and appropriate to supervise the Minor, which supervision I acknowledge and agree is not the responsibility of any of the Released Parties, and I will not permit the Minor, through the Minor’s action or inaction, to behave in a manner which is inconsistent with the Minor’s and my responsibilities under this Release. 14. MISCELLANEOUS 14.1 Severability If one or more provisions of this Release are held to be unenforceable by a court of competent jurisdiction, each such unenforceable provision shall be excluded from the Release, and the balance of this Release shall be interpreted as if each such unenforceable provision we excluded, and the balance of this Release as so interpreted shall be enforceable in accordance with its terms. 14.2 Governing Law This Release shall be construed and enforced in accordance with California law. 14.3 Waivers, Amendments Any term, covenant, agreement or condition of this Release may be amended or waived, and any departure therefrom may be consented to, if, but only if, such amendment, waiver or consent is in writing and is signed by the parties to be bound thereby. A waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given, 14.4 Final Agreement This Release superseded and replaces any prior written or oral agreements or statements between the parties with respect to the subject matter hereto. I UNDERSTAND AND ACKNOWLEDGE THAT THIS RELEASE IS A RELEASE OF LEGAL LIABILITY AND IN THE EVENT OF ANY LITIGATION, THIS RELEASE MAY BE RAISED AS A DEFENSE AND BAR TO, AND AS A WAIVER AND RELEASE OF, LEGAL RIGHTS THAT MIGHT OTHERWISE BE ASSERTED BY THE MINOR, ME OR BY OUR RESPECTIVE HEIRS, DISTRIBUTEES, GUARDIANS, LEGAL REPRESENTATIVES, AND ASSIGNS.
DATED: April 18, 2024 |
