RELEASE AND INDEMNIFICATION AGREEMENTPLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING, YOU ARE GIVING UP LEGAL RIGHTS
This Release and Indemnification Agreement (Agreement) is entered into by the Adult Participant, and if any minor is named below, the Adult Participant on behalf of and as parent or legal guardian for the Child Participant(s) in favor of Armadillo Boulders, LLC, AB San Marcos, LLC, AB SO, LLC, Enchilada Rock Gym, LLC, ERG SM, LLC and ERG SO, LLC (Gym). Collectively and severally, Adult Participant and Child Participant are referred to as the Participant. In consideration of Gym permitting Participant access to the Premises and the ability to participate in the Activities, including the Activities that may occur in, about, or near the Gym Locations at [addresses] or any other premises owned or operated by Gym wherever located (Premises), Participant agrees as follows:
1. Nature of Activities. Gym operates a facility offering Participant: (a) the opportunity to engage in bouldering (a type of rock climbing that does not utilize ropes or harness for fall protection or to assist to climb a wall with a height of usually less than twenty feet (Bouldering)), slacklining; independent and group exercising, including group fitness runs off premises, the use of exercise equipment, and a variety of recreation, exercise and fitness classes, yoga, programs, teams, events and competitions; and (2) access to the locker room, Premises, and parking areas and other activity sites (collectively, Activities). I Agree
2. Orientation Required. No Participant may Boulder until he or she has completed a required orientation. . Bouldering Participants will not use harnesses or ropes for fall protection. Bouldering activities will not be belayed, spotted or otherwise managed by Gym, although a climber may choose to be spotted by another Participant, at his or her own risk. Climbing at Gym is not the same as climbing outdoors or on other artificial rock surfaces. Participant understands that any instruction Participant may receive at Gym or in connection with any Activity is not necessarily applicable to other real or artificial rock climbing and that such instruction does not prepare Participant to climb without supervision. I Agree 3. No Supervision. While Bouldering, Participants can expect to fall, and falls from certain positions can result in serious injury regardless of floor covering and other fall protection strategies. Participants must carefully assess their competencies, in climbing and falling, practice down-climbing as a preferred alternative to jumping, and increase climbing heights and complexity of moves thoughtfully. While instruction and orientation will be provided for some Activities, and certain classes and programs may be attended by staff, Participants should not assume that, except by special arrangement by Gym, they are being supervised or observed in their Activities, or, if they are, that staff will intervene for any purpose, including to address potentially dangerous conduct or conditions. Participants in Activities must pay attention to the condition of holds and other equipment used by them and advise staff of any damage or other dangerous condition caused by them or observed by them. I Agree
4. Equipment Rentals and Sales. Gym offers certain items for rent and purchase, including but not limited to climbing shoes and chalk. Gym does not warrant, and specifically disclaims any warranty or representation, expressed or implied, of fitness, condition or otherwise, of rented or sold items. Participant understands that Gym staff is not responsible for the condition of any equipment Participant brings to Gym, even if it such Participant-supplied equipment is inspected by Gym staff. It is Participant’s sole responsibility to continually inspect and maintain such equipment and follow manufacturers’ instructions. I Agree 5. Gym Rules. Participants share the responsibility for managing the Risks of the Activities, supervised or not, and must follow the Climbing Orientation and Gym Rules (Gym Rules), set forth at the end of this Agreement, posted at the Gym, on the Gym website, or otherwise described by staff. Gym Rules may be updated from time to time at Gym's discretion and updates will be posted in the Gym and on the Gym Website. I Agree 6. Types of Risks. a. Risks Associated with Activities. Participant acknowledges the Activities require moderate to heavy physical exertion and that there are inherent risks in and injuries that may occur from participating in the Activities, including, but not limited to, (1) slips, falls, abrasions or collisions while using the Premises, facilities, climbing walls and boulders, floors, landing areas, entrances and exits, parking areas and moving to and from those areas, and other facilities or equipment; injuries could include cuts, bruises, muscle strain, twisted or sprained ankles, knees, shoulders, or wrists; burns, dirt or other materials in eye; concussions, broken bones, physical or emotional injuries, landing wrong, over-exertion, paralysis, disability, or death; (2) misuse of equipment and facilities; (3) equipment malfunction; defective design or manufacture of equipment; improper or negligent installation of equipment; failure or malfunction of hardware, equipment or gear, including but not limited to manufacturing defects, worn or defective safety equipment (for example, sections of flooring may move or become separated), ropes, slings, anchors, harnesses, fall protection materials and devices, climbing holds (holds on artificial climbing surfaces are a convenience, not a safety feature, and they can and do break, spin and drop); (4) Participant’s or Child Participant’s, impaired or inadequate physical strength, coordination, sense of balance or ability to give or follow directions when climbing, or otherwise participating in Activities; (5) entanglement with ropes or equipment; (6) bad decision making by Participant or Child Participant, including, if Participant or other parent or guardian, while assisting Child Participant in Activities; (7) falling climbers or dropped climbing hardware, wall components, and other items or personal effects: (8) risks ordinarily associated with running through city streets and other urban areas, including often uncertain terrain and collisions with vehicles and pedestrians; (9) theft from and damage to parked vehicles; and (10) the acts or omissions of other persons, including Gym staff and independent contractors, which might include inadequate or faulty instructions. While Bouldering, Participants can expect to fall, and falls from certain positions can result in serious injury regardless of floor covering and other fall protection strategies.
b. Exposure to Bacteria, Fungus, Virus, and Unknown Contagious Diseases. By entering the Premises or when engaging in the Activities, there is a risk of exposure to bacteria, fungus, viruses, unknown contagious diseases and COVID-19, which notwithstanding governmental recommendations and the practices of Gym, cannot be eliminated. CONSEQUENTLY, TO THE FULLEST EXTENT PERMITTED BY LAW, PARTICIPANT KNOWINGLY AND FULLY ASSUMES THE RISK OF, RELEASES, AND SHALL INDEMNIFY GYM FROM ALL CLAIMS (AS DEFINED IN SECTION 5 BELOW) OR BODILY INJURY RESULTING FROM PARTICIPANT’S EXPOSURE TO ANY BACTERIA, FUNGUS, VIRUS, UNKNOWN CONTAGIOUS DISEASES OR COVID-19 AND IN ANY WAY CONNECTED TO PARTICIPANT’S ENTRY INTO THE PREMISES OR ENGAGEMENT IN THE ACTIVITIES. FURTHER, ADULT PARTICIPANT ON BEHALF OF HIM/HERSELF AND THAT OF THE CHILD PARTICIPANT(S) CONSENTS TO HAVING THEIR TEMPERATURE TAKEN BY GYM AND ACKNOWLEDGES THEY MAY BE DENIED ACCESS TO ORFORCED TO VACATE THE PREMISES IF THEY EVIDENCE SYMPTOMS OF EXPOSURE TO BACTERIA, FUNGUS, VIRUSES, UNKNOWN CONTAGIOUS DISEASES OR COVID-19 AS IDENTIFIED BY THE CENTER FOR DISEASE CONTROL AND PREVENTION. I Agree 7. Assumption of Risks. Notwithstanding the foregoing risks and safety measures implemented by Gym, Participant acknowledges it is impossible to eliminate all risk of injury and understands the demands of the Activities relative to Participant’s physical condition and skill level. PARTICIPANT AFFIRMS THAT PARTICIPATION IN THE ACTIVITIES IS VOLUNTARY AND PARTICIPANT KNOWINGLY, WITH UNDERSTANDING OF THE RISKS AND POTENTIAL INJURIES, ASSUMES ALL RISKS INHERENT WITHTHE ACTIVITIES AND ACCESS TO THE PREMISES. I Agree 8. Alcohol & Intoxicants. Participant agrees to exercise ordinary and reasonable care and to not consume alcohol to the extent Participant’s judgment is impaired. Participant understands the potential risks associated with the consumption of alcohol and acknowledges Participant does not have and is not aware of any medical condition that would result in any injury to Participant due to Participant’s consumption of alcohol. Participant assumes the risks associated with alcohol consumption or other intoxicants and takes full responsibility for Participant’s own actions, safety, and welfare. UNDER NO CIRCUMSTANCES WILL PARTICIPANT BE ALLOWED TO PARTICIPATE IN ANY ACTIVITIES IF PARTICIPANT HAS CONSUMED ALCOHOL OR IS OTHERWISE UNDER THE INFLUENCE OF ANY INTOXICANT. I Agree 9. Release and Indemnity. TO THE FULLEST EXTENT PERMITTED BY LAW, ADULT PARTICIPANT ON BEHALF OF THEMSELF, CHILD PARTICIPANT, AND THEIR HEIRS, EXECUTORS, AND REPRESENTATIVES RELEASES, AGREES NOT TO SUE, AND SHALL INDEMNIFY Armadillo Boulders, LLC, AB San Marcos, LLC, AB SO, LLC, ERG SO, LLC, THE LEGAL OWNER OF THE PREMISES, THE LANDLORD, MORTGAGEES AND MANAGEMENT COMPANY OF THE PREMISES, AND ANY OF THEIR LENDERS, PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, HEIRS, ASSIGNS, VOLUNTEERS, INDEPENDENT CONTRACTORS, EQUIPMENT SUPPLIERS, AND INSURERS OF ALL OF THEM (COLLECTIVELY, PROTECTED PARTIES) FROM AND AGAINST ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, SUITS, CAUSES OF ACTION, COSTS, FEES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND COURT OR OTHER COSTS) (COLLECTIVELY, CLAIMS) RELATING TO, RESULTING FROM, OR ARISING OUT OF OR ALLEGED TO HAVE ARISEN OUT OF (IN WHOLE OR IN PART) ANY PROPERTY DAMAGE OR BODILY INJURY (INCLUDING DEATH) TO PARTICIPANT RESULTING IN ANY WAY FROM (A) PARTICIPANT’S USE OF THE PREMISES, (B) PARTICIPANT’S ACTIVE OR PASSIVE PARTICIPATION IN THE ACTIVITIES, (C) LOSS OR THEFT OF PERSONAL PROPERTY, (D) FROM THE CONSUMPTION OF ALCOHOL AT THE PREMISES BY PARTICIPANT OR ANY OTHER INVITEE OF GYM, OR (E) PARTICIPANT’S BREACH OF THIS AGREEMENT. THIS RELEASE AND INDEMNITY SHALL APPLY EVEN IF ANY THE CLAIM IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR WILLFUL MISCONDUCT OF THE PROTECTED PARTIES OR PARTICIPANT. THE INDEMNITY SHALL ALSO INCLUDE ADULT PARTICIPANT’S OBLIGATION TO INDEMNIFY THE PROTECTED PARTIES FROM (A) ANY SUM OR SETTLEMENT PAID TO OR ON BEHALF OF THE CHILD PARTICIPANT RESULTING FROM A CLAIM IN ANY WAY INVOLVING THE FOREGOING SUBSECTIONS AND (B) ALL CLAIMS RESULTING FROM OR RELATING TO ANY INSUFFICIENCY OF PARTICIPANT’S LEGAL CAPACITY OR AUTHORITY TO EXECUTE THIS AGREEMENT FOR OR ON BEHALF OF THE CHILD PARTICIPANT. I Agree 10. Dispute Resolution. a. Arbitration. Any dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this arbitration agreement (Dispute) shall be brought by the parties in their individual capacity and not as a plaintiff or class member in any purported class or representative capacity, and settled by binding arbitration before a single arbitrator administered by the American Arbitration Association (AAA) per its Commercial Industry Arbitration Rules in effect at the time the demand for arbitration is filed. Judgment on the arbitration award may be entered in any federal or state court having jurisdiction thereof. The arbitrator shall have no authority to award punitive or exemplary damages. If the Dispute cannot be heard by the AAA for any reason, the Dispute shall be heard by an arbitrator mutually selected by the parties. If the parties cannot agree upon an arbitrator, then either party may petition an appropriate court to appoint an arbitrator. Arbitration and the enforcement of any award rendered in the arbitration proceedings shall be subject to and governed by 9 U.S.C. § 1 et seq. b. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, ADULT PARTICIPANT AND GYM KNOWINGLY, WILLINGLY, AND VOLUNTARILY, WITH FULL AWARENESS OF THE LEGAL CONSEQUENCES, AFTER CONSULTING WITH COUNSEL (OR AFTER HAVING WAIVED THE OPPORTUNITY TO CONSULT WITH COUNSEL) AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY DISPUTE AND TO RESOLVE ANY AND ALL DISPUTES THROUGH ARBITRATION. The right to a trial by jury is a right parties would or might otherwise have had under the Constitutions of the United States of America and the state in which the Premises is located. I Agree 11. License. Participant irrevocably grants the Protected Parties the right to use all or a portion of an image or video of Participant and their name and likeness in all forms and media including composite or modified representations for all purposes, including advertising, trade or any commercial purpose throughout the world and in perpetuity. PARTICIPANT WAIVES THE RIGHT TO INSPECT OR APPROVE VERSIONS OF IMAGES OR VIDEOS USED FOR PUBLICATION OR THE WRITTEN COPY THAT MAYBE USED IN CONNECTION WITH THE IMAGES/VIDEOS. PARTICIPANT RELEASES THE PROTECTED PARTIES FROM ANYCLAIMS THAT MAY ARISE REGARDING THE USE OF PARTICIPANT’S STATEMENTS, VIDEOS, OR IMAGES INCLUDINGANY CLAIMS OF DEFAMATION, INVASION OF PRIVACY, OR INFRINGEMENT OF MORAL RIGHTS, RIGHTS OF PUBLICITY,OR COPYRIGHT. 12. Authority. If Adult Participant signs this Agreement on behalf of his/her spouse, child, family member, friend, minor child, or other person, Adult Participant warrants and represents to Gym that he/she has the legal authority and such person’s actual and implied authority to execute this Agreement on their behalf, including, but not limited to, the arbitration clause, release, indemnity agreement, and license. I Agree 13. Acknowledgements. Participant represents to the Protected Parties that this Agreement is a complete and final release and indemnity agreement, that Participant is voluntarily entering into this Agreement, and no representations, promises, or statements made by any of the Protected Parties has influenced Participant in signing this Agreement. Participant agrees that there are no oral agreements, representations, promises, or warranties that are not expressly set forth herein, this Agreement may only be modified in writing, and that Participant is not relying on any statements or representations of the Protected Parties that are not expressly contained herein. Participant expressly agrees that the terms of this Agreement shall govern all Participate and Child Participant visits to the Premises on and following the Participant’s signature and this Agreement shall continue in force until it is amended. Participant expressly agrees that this Agreement is intended to be as broad and inclusive as is permitted by the laws of the state in which the Premises is located and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. Venue for any action brought hereunder or due to Participant’s use of the Premises or participation in the Activities shall lie in the County in which the Premises is located. The substantive laws of Texas shall apply. By signing below, Participant authorizes Gym to communicate with Participant via email with updates, news, advertisements, and offers. I Agree
14. Representations by Participant. Participant represents to the Protected Parties as follows: A. Participant shall obey all Gym Rules while participating in the Activities and alert the staff of any rules violations or dangerous behavior. B. Participant possesses a sufficient level of skill and physical fitness for safe participation in the Activities. C. Participant shall only attempt Activities that Participant can perform safely. D. Participant is not aware of any health problems, including mental health problems,that would prevent him/her from participating in the Activities. E. Participant has received either medical clearance from his/her physician prior to participation in the Activities or has determined that such clearance is not necessary for his/her safe participation in the Activities. F. Gym may, but shall not be obligated or required to, administer to Participant emergency aid, CPR, and use an AED (defibrillator), secure emergency medical care or transportation (i.e., EMS), and Participant shall assume all costs of emergency medical care and transportation. G. Participant shall discontinue participation in the Activities if Participant feels any unusual discomfort (e.g., faintness, shortness of breath, high anxiety, or chest pains). H. Participant shall report any injury, however minor, to a Gym employee immediately. I. Participant shall inspect their supplied equipment prior to use and ensure that any equipment has been maintained in compliance with manufacturer's instructions. BY EXECUTING THIS AGREEMENT, I REPRESENT I HAD A SUFFICIENT OPPORTUNITY TO READ THIS AGREEMENT, I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND I AGREE TO BE BOUND AS SET FORTH HEREIN.
ARMADILLO BOULDERS FACILITY TERMS, RULES, AND REGULATIONS (GYM RULES) Armadillo Boulders General Bouldering Rules: • All climbers and observers must check-in at the front desk and execute the Visitors Agreement before proceeding to the padded climbing areas or fitness areas. • Bouldering is inherently dangerous. Participants must assume the risks of climbing. All Visitors at Gym must sign a Visitors Agreement. • Grabbing hold of any lighting fixtures or structural members of the building or climbing wall or associated structures is prohibited at Gym. • All persons using the Facility are expected to respect other individuals in the facility and conduct themselves with due consideration for others. Any person deemed by Gym staff to be behaving in an unsafe or disorderly fashion will be asked to leave the facility. • The use of headphones is prohibited while bouldering. • All Visitors must wear appropriate clothing, including shirts. • Shoes must be worn while bouldering. • Gym reserves the right to ban or expel anyone from its facility at its discretion. Rules Specific to Youth Climbers: • In the interest of safety, youth under the age of 12 must be supervised by an adult (18 years or older) or by a staff member of Gym. • Gym has a minimum age requirement of 3 years old in order to engage in a climbing activity. Children under the age of 3 are not permitted in a padded climbing or fitness area. • Gym requires a youth to adult supervision ratio of 3:1 Safety Orientation Acknowledgement (Initial in the highlighted area for each statement) I understand that I require a safety orientation before participating in climbing and fitness activities in this facility, and I must abide by all posted facility rules. I understand that if I need additional assistance during my participation at this climbing facility at any future time that it is my responsibility to seek such assistance from the climbing gym staff prior to using any equipment or participating in any activity for which I am not familiar to minimize risk. . My signature indicates that I understand the information above and that the Gym staff has presented this information to me. I have carefully read, understand, and fully informed myself, and Child Participant, if applicable, of the contents of this agreement, including the Facility Terms, Rules and Regulations. I voluntarily sign this agreement, which I acknowledge constitutes a binding contract for myself, and to the fullest extent allowed by applicable law, the Child Participant.
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