Participant Agreement, Release and Assumption of Risk (The Agreement) – Chiara, LLC DBA Equalize Fitness / NinjaCats Warriors (CNCWEQ)
All participants of the NinjaCats Warriors are NinjaCats Only Members of Equalize (EQ).
PLEASE ONLY VISIT THE EQ FACILITY IF THE FOLLOWING APPLY:
(1) You are willing to practice social distancing and maintaining at least six feet between individuals in all areas of CNCWEQ; (2)You are healthy enough to participate, and do not have symptoms of COVID 19 such as feeling sick, coughing, sneezing, shortness of breath, fever or are not feeling well; (3)You do not live with or visited a person or family member that has been diagnosed with or suspected of having COVID-19; (4) you consent to having you (or your minor child’s) temperature checked upon entering CNCWEQ. All participants are required to wear masks regardless of vaccination.
ADDENDUM TO PARTICIPATION AND ARBITRATION AGREEMENT ADDING WAIVER/RELEASE FOR COMMUNICABLE DISEASES INCLUDING COVID-19 ASSUMPTION OF RISK AND INDEMNIFICATION AGREEMENT
In consideration of being allowed to participate in any or all the services and activities, including, but not limited to, those set forth in the Participation and Arbitration Agreement and any related events and activities, the undersigned acknowledges, appreciates, and agrees that: (1) Participation includes possible exposure to and illness from infectious diseases including but not limited to MRSA, influenza, and COVID-19. While particular rules and personal discipline may reduce this risk, the risk of serious illness and death does exist; and, (2) Participant for myself, and/or on behalf of my spouse, and minor child(ren)/ward(s) KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and, (3) agree to comply with the stated and customary terms and conditions for participation with respect to protection against infectious diseases and if I observe any unusual or significant hazard during my presence or participation, I will remove myself from participation and bring such to the attention of the nearest management employee immediately; and (4) that I, as parent/guardian, with legal responsibility for any minor participant, have read and explained the provisions in this waiver/release to my child/ward including the risks of presence and participation and his/her personal responsibilities for adhering to the rules and regulations for protection against infectious diseases; and, (5) I, for myself and/or on behalf of my spouse, and minor child(ren)/ward(s) as well as on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE AND HOLD HARMLESS Chiara, LLC DBA Equalize Fitness, DBA NinjaCats Warriors, its officers, officials, agents, and/or employees, other participants, sponsoring agencies, sponsors, advertisers, owners, parent companies, affiliated entities and lessors of premises (“RELEASEES”), WITH RESPECT TO ANY AND ALL ILLNESS, DISABILITY, DEATH, or loss or damage to person or property, WHETHER ARISING FROM THE NEGLIGENCE OF RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IF FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
I have voluntarily elected to use and, if applicable, to allow the minor child(ren) identified above and all minor children under my supervision and referred to individually and collectively herein as “Child”, to use the facilities and equipment located at One Odell Plaza, #190, Yonkers, NY 10701. In consideration for being allowed to use said facilities and equipment, and any other services provided Chiara, LLC DBA Equalize Fitness / NinjaCats Warriors (CNCWEQ), or its employees or agents at said location, or any other location within the State of New York, I represent, acknowledge, and agree as follows:
I acknowledge and agree that this Agreement covers and is intended to release and provide other benefits, legal protections, and consideration to Chiara LLC, DBA Equalize Fitness, DBA NinjaCats Warriors, and their respective and collective agents, owners, officers, managers, shareholders, affiliates, volunteers, participants, employees, and all other persons or entities acting in any capacity on their respective or collective behalf (collectively, “CNCWEQ”)
ACKNOWLEDGMENT OF POTENTIAL INJURIES
I acknowledge and agree that the use of an obstacle course and other equipment at the CNCWEQ Facility involve recreational sport activities, and that participating in obstacle course activities is inherently and obviously dangerous. I understand there is a risk that I or the Child will be injured. I acknowledge that the risks of injury include serious physical or emotional injury, paralysis, death, damage to myself, and/or third parties, 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 the activity, which I further agree is for recreational purposes and completely voluntary. I acknowledge and agree that, while the obstacle course and other activities that take place at the CNCWEQ Facility are monitored generally by CNCWEQ 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, CNCWEQ Facility employees have difficult jobs to perform. They seek 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 ACKNOWLEDGMENT
I acknowledge and agree that I and the Child are participating voluntarily at our own risk. I acknowledge and agree that the actions or activities of other customers or the actions or inactions of CNCWEQ Facility employees could cause me or the Child significant bodily injury (as described in this Agreement), I acknowledge and agree CNCWEQ is not responsible for the actions or activities of customers using the CNCWEQ Facility or the negligence of its employees in supervising the CNCWEQ Facility or its usage, including actions, activities, or omissions that result in such harm. Some of the risks include, but are not limited to, the following:
a) Participants may die or become paralyzed, partially, or fully, through their use of the CNCWEQ facility and participation in CNCWEQ activities.
b) Participants may suffer concussions, cuts, scrapes, bumps, bruises, the transmission of disease strains and allergic reactions through use of the CNCWEQ Facility equipment or contact with other participants or surfaces they have contacted. Participants may sprain, pull, break or otherwise seriously externally or internally injure their head, face (including nose and teeth/jaw), neck, torso, spine, arms, wrists, hands, legs, knees, ankles, feet or other body parts as a result of falling off obstacles(s) or other equipment, landing improperly on the obstacles or other equipment, or making contact with other participants. As noted in paragraph a) above, such injuries can lead to paralysis, disfigurement or death. Participation may result in heat stroke, heart attacks, dehydration and other exertion-related medical events.
c) Participants may fall on each other, resulting in broken bones and other serious injuries.
d) Using obstacles and other equipment can result in similar physical injury (even if the participant is not himself or herself participating at the time).
e) Observing, standing, sitting or taking photographs near any equipment or activity is NOT allowed. Observing, standing, sitting or taking photographs near any equipment or activity can result in physical injury (even if the observer is not himself or herself participating at the time).
I acknowledge that my use of the obstacles and other equipment and participation in other activities at the CNCWEQ Facility is purely voluntary, that there is a risk of serious injury when using the obstacles and other equipment, and that I elect to participate in spite of such risks.
AGREEMENT TO PAY MY OWN MEDICAL EXPENSES
I acknowledge, accept, and assume the risk of any and all medical conditions, limitations, or disabilities (whether temporary or permanent) that I and/or my child possess, whether known or unknown, which might contribute to or exacerbate any injury I might sustain as a result of using the CNCWEQ Facility or any of its equipment. 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 I sustain while using the CNCWEQ Facility, such assistance shall be at my own expense.
RELEASE OF LIABILITY
The Releasing Parties hereby forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability and covenant not to sue CNCWEQ, and 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 my access to and/or use of the CNCWEQ Facility, premises and/or its equipment (whether obstacles and other equipment or otherwise), my entry into the CNCWEQ Facility, the condition, maintenance, inspection, supervision, control or security of the CNCWEQ Facility, the failure to warn of dangerous conditions in connection with the CNCWEQ Facility, and/or the acts or omissions of CNCWEQ or any of the Releasees, including, without limitation, any claim for negligence, failure to warn or other omission, property damage, personal injury, emotional injury, illness, bodily harm, paralysis or death. I understand that this release and waiver applies not only to use of the obstacles and other equipment, but also all other equipment, and all activities and games at the CNCWEQ Facility. I understand that this release and waiver applies to and includes all activities that I engage in at the premises, whether inside or outside the CNCWEQ Facility. In the event that any claim released herein 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.
ARBITRATION OF DISPUTES; TIME LIMIT TO BRING CLAIM
I understand that by agreeing to arbitrate any dispute as set forth in this section, I am waiving my right, and the right(s) of the minor child(ren) above, to maintain a lawsuit against CNCWEQ 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, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, CNCWEQ and the other Releasees waive their right to maintain a lawsuit against me and the minor child(ren) above for any and all claims covered by this Agreement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD’S ACCESS TO AND/OR USE OF THE CNCWEQ PREMISES AND/OR ITS EQUIPMENT, 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) FOR AN ADULT AND WITHIN THE APPLICABLE STATUTE OF LIMITATIONS FOR A MINOR AND BE DETERMINED BY ARBITRATION IN WESTCHESTER COUNTY OF THE CNCWEQ FACILITY, NEW YORK, 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 New York, 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 and the Child’s use of the CNCWEQ Facility, I consent to the recording of the Child’s and my physical likeness and/or voice through mechanical, photographic, technical, digital, electronic or other means (“Recordings”). I hereby consent to and authorize CNCWEQ and its agents, representatives, employees, successors and assigns to use, in perpetuity, such Recordings, as well as the Child’s name and my name, for any purpose, including advertising, promoting, exploiting and/or publicizing any CNCWEQ Facility. I further agree that the foregoing includes the consent to use the Child’s and/or my physical likeness in any form. In addition, I waive any and all claims I may have in connection with the Recordings.
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 I or my child(ren)/ward(s) visit CNCWEQ, whether at the current location or any other location or facility.
SAFETY IS YOUR RESPONSIBILITY: I AND EACH CHILD AGREE TO FOLLOW THE CODE OF PATRON RESPONSIBILITY:
a) You acknowledge that there are inherent risks in the participation in or on any equipment, and that such risks include not only the use of obstacles and other equipment, but other activities and equipment. Patrons who use obstacles and other equipment, 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. Patrons have a duty to exercise good judgment and act in a responsible manner while using the obstacles and other equipment, and while engaging in such activities. Patrons have a duty to obey all oral or written warnings, or both, prior to or during participation, or both.
b) You have a duty to not participate in any activity on any equipment, or engage in any other activity or use any other equipment, when under the influence of drugs or alcohol.
c) You have a duty to properly use all safety equipment provided, whether for the obstacles and other equipment, or otherwise.
d) You have a duty to not participate in any activity on any equipment, or engage in other activities or use other equipment, if you have pre-existing medical conditions, circulatory conditions, heart or lung conditions, recent surgeries, back or neck conditions, knee or ankle conditions, high blood pressure, known pregnancy, any history of spine, musculoskeletal or head injuries, or if you may be pregnant.
e) You have a duty to remove inappropriate attire including hard, sharp or dangerous objects such as buckles, pens, purses, badges and so forth.
f) You have a duty to avoid bodily contact with other patrons.
g) You have a duty to conform with or meet height, weight or age restrictions imposed by the manufacturer or owner to use or participate in any activity, whether involving the use of obstacles and other equipment, or otherwise.
h) You have a duty to avoid crowding or overloading individual sections of the obstacles, or other equipment.
i)You have a duty to use the obstacles, and other equipment, within your own limitations, training and acquired skills.
j)You have a duty to avoid landing on the head or neck. Serious injuries, paralysis or death can occur when landing on the equipment, floor, or elsewhere, whether involving obstacles, other equipment, or otherwise.
k)You also agree to follow and obey all posted and stated warnings and patron education signs.
l)You agree to explain all safety rules to each Child you accompany, and to ensure that each Child obeys the safety rules.
I would like to receive email promotions, discounts, and other advertisements from CNCWEQ and its partners at the email address I provided. I may unsubscribe at any time.
I have had sufficient opportunity to read this entire document. I have read and understood and voluntarily agree to be bound by its terms. I understand that employees working at the CNCWEQ Facility, including the director, supervisors, instructors, do not have the authority to waive any provision of this Agreement. This Agreement constitutes and contains the entire agreement between CNCWEQ and me relating to the Child’s and my use of the CNCWEQ Facility. There are no other agreements, oral, written, or implied, with respect to such matters. I further agree that this Release shall be constructed in accordance with the laws of the State of New York. If any term or provision of this Release shall be held illegal, unenforceable, or in conflict with any law governing this Release the validity of the remaining portions shall not be affected thereby.
By signing below, I represent, warrant and certify that I am the parent, legal guardian, or power-of-attorney of listed Child(ren) and have the authority to execute this Agreement on his/her or their behalf and to act on his/her or their behalf. I have read each and every paragraph in this document and I and they agree to be bound by the terms stated therein, including the release of liability contained therein. I am 18 years of age or older. I am entering this agreement on behalf of myself, my spouse or domestic partner, the Child, and our respective and/or collective issue, parents, siblings, heirs, assigns, personal representatives, estate(s), and anyone else who can claim by or through such person or persons (collectively, the “Releasing Parties”).
IN SUMMARY, BY MY SIGNATURE BELOW, I ACKNOWLEDGE THAT IF I AM INJURED IN ANY WAY, THIS WAIVER PREVENTS AND PROHIBITS ANY RECOVERY OF MONEY FROM ANY CNCWEQ RELATED ENTITY.