I, the undersigned individual, desire to use Sender One Climbing LLC (“Sender One” or “Sender One Climbing & Fitness”) facilities and/or to participate in other activities at other, non-Sender One facilities, both indoor and outdoor, that are sponsored by or involve Sender One, including off-site competitions and online programs. In consideration of Sender One permitting me to use such facilities and/or permitting me to participate in or observe activities, I have agreed to execute this Release of Liability, Assumption of Risk, Indemnification, and Participation Agreement (the “Release”).
I HEARBY ACKNOWLEDGE AND AGREE to the following:
1. ASSUMPTION AND ACKNOWLEDGEMENT OF RISK:
I hereby acknowledge, accept, and agree that the sport of climbing (both indoor and outdoor) and related fitness activities (e.g., yoga, aerial silks, weightlifting) and the use of Sender One facilities, participation in Sender One activities (including outdoor and online), and/or observation of such activities involves inherent risks. I have received full information regarding Sender One facilities and activities and have had the opportunity to ask any questions that I wished. I understand that no amount of care, caution, instruction, or expertise can eliminate the inherent dangers associated with these and other activities. I have examined the climbing walls and areas of activity and participation and have full knowledge of the nature and extent of all the risks associated with climbing and the use of Sender One facilities and participation in Sender One activities, including, but not limited to:
a. all manner of injury resulting from falling off the climbing walls and hitting the floor, the climbing walls, rock faces, people or projections, whether permanently or temporarily in place;
b. all manner of injury resulting from participation in athletic and fitness activties, both those that arise at a Sender One facility or those that arise while participating in offsite Sender One-led activities, for example, online fitness classes;
c. all manner of injury or illness resulting from participation in activities that require my sharing common spaces and touch points with other individuals, such as climbing areas, holds, ropes, and safety flooring;
d. rope abrasion, entanglement and other injuries resulting from activities on or near the climbing walls such as, but not limited to, climbing, belaying, rappelling, lowering on ropes, rescue systems, and any other rope techniques;
e. injuries resulting from the actions or omissions of others, including but not limited to falling climbers or dropped items, such as, but not limited to, ropes, climbing hardware, wall parts, or personal effects;
f. cuts and abrasions resulting from skin contact with the climbing walls or any other surface;
g. failure or misuse of ropes, slings, harnesses, climbing holds, anchor points, other climbing equipment, or any part of the climbing walls;
h. failure to follow Sender One employee instruction or failure to ask for information or assistance.
I further acknowledge that the above list is not inclusive of all possible risks associated with the use of Sender One facilities and climbing and in no way limits the extent or reach of this assumption of risk, release of liability, and indemnification. I understand that no amount of care, caution, instruction or expertise can eliminate the inherent dangers associated with these and other activities.
I confirm that I am physically and mentally capable of participating in the use of Sender One facilities and all Sender One activities. I understand that if my mental or physical condition changes after the execution of this Release such that I am not capable of participating in the activity or using the equipment, I am obligated to cease participation in the activity or activities immediately. In order to avoid any illness, serious injury, or death, Sender One has advised that I consult a physician before beginning an exercise program, or engaging in strenuous physical activities or diet/nutrition alternations.
I acknowledge that there are certain dangers associated with the use of or participation in activities at Sender One other than climbing-related equipment or activities, including, but not limited to, the use of exercise equipment or participation in group exercise classes, including, but not limited to yoga classes.
I acknowledge and accept that there are certain unavoidable risks that accompany my choice and decision to enter and remain in public spaces--both enclosed and outdoors--for any length of time; and the unavoidable risks that accompany my presence near other individuals, including the choices and actions those others may or may not make with regards to personal hygeine and health. I understand that no amount of santizing, cleaning, or precaution can fully mitigate the risk of harm or damage, including death, caused by or resulting from any virus, bacterium, or microorganism that induces or is capable of inducing physical distress, illness, or disease.
I understand that climbing at Sender One facilities on artificial climbing walls is not the same as outdoor rock climbing or on other artificial rock surfaces. I understand that the instruction I may receive from Sender One or at Sender One facilities is not necessarily applicable to real or other artificial rock climbing. I understand that the instruction I receive at Sender One facilities does not prepare me to climb without supervision. I further understand that the holds used on artificial climbing surfaces are a convenience; they are not a safety feature and they can and do break and drop.
I am aware of the safety policy recommending the use of a protective helmet that could prevent permanent brain damage or other injury in the event of an accident. I understand that wearing a helmet does not eliminate the dangers associated with rock climbing but that in certain instances a helmet can reduce the risk of permanent injury or death. I am also aware it is my responsibility to provide and use a protective helmet according to manufacture specifications. I understand that Sender One recommends that I wear a helmet and that if I choose not to wear a helmet I do so against their advice. I AGREE TO ASSUME ALL RISK OF INJURY AND/OR DEATH THAT MAY OCCUR AS A RESULT OF MY NOT WEARING A HELMET.
I understand that climbing gear and other equipment could become damaged or defective. I am capable of examining and assessing and am responsible for my own equipment that I use. If damage occurs to equipment belonging to Sender One while I am using it or I otherwise become aware of damaged Sender One equipment, I will bring it to the immediate attention of the Sender One staff in charge at a given facility so that they can evaluate the equipment.
2. RELEASE AND INDEMNIFICATION:
I agree to accept and assume all of the risks existing in these activities and facilities, both known and unknown, either caused or alleged to be caused by the negligent acts or omissions of Sender One and others. My participation is purely voluntary, and I elect to participate in spite of the risks. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Sender One Climbing LLC, dba “Sender One Climbing & Fitness”; its subsidiaries, officers, owners, affiliates, agents, and employees; Sender One Village LLC; Sender One Service LLC; Sender One Hindry LLC; Sender One Runway LLC; Sender One Westwood LLC; the landlord of any Sender One facility, if any; the designers and engineers, manufacturers, installers or distributors of Sender One’s artificial climbing walls and other equipment; and any of their respective members, officers, directors, employees, agents, representatives, as well as any other persons, corporations, or other entities that might have any liability to me (collectively, the “Released Parties”), from and against any and all damages, actions, claims, suits, demand actions, and liabilities, whether known or unknown, anticipated, suspected or unsuspected, now or any time in the future, in any way relating to or arising from any activity, occurrence or event, whether supervised or not, including, without limitation, all claims for property damage, personal injuries, or wrongful death involving Sender One, Sender One facilities, or any of the Released Parties, including claims that allege negligent acts or omissions with the exception of gross negligence, or intentional, willful, or wanton misconduct.
Sender One facilities contain a number of cameras, photographic and video, including web-cams, and I consent to the use of such devices to capture my image and likeness. I understand that during the use of any facility, web-cams and cameras may record my activities. Sender One reserves the right to use a climber’s likeness or image as well as any video or photographs recorded by the cameras, web-cams, or other devices. I hereby grant Sender One, its affiliated entities, and their licensees the right to use my likeness or image and any and all video recorded by the cameras and web-cams for any purpose. Climbers are permitted to take personal photos at the facility. Anything beyond reasonable use of photographic equipment by a participant for personal, non-commercial purposes shall require the express consent of Sender One management.
I understand and agree that Sender One and its personnel reserve the right to deny access to its facilities to any individual, permanently or for any specified period of time, for any breach of Sender One’s policies, rules and regulations, or for any conduct that is viewed as unhealthy, unsafe, or inappropriate.
I understand and agree to submit to health screenings Sender One may conduct in its sole discretion prior to allowing me to participate in activities or enter Sender One facilities. I further agree to abide by decisions and conclusions Sender One in its sole discretion may make based on those screenings as it relates to my presence at Sender One faciltiies and participation in Sender One activities. I also understand and agree to Sender One making communications to satisfy local public health mandates, directives, and recommendations as they relate to contract tracing.
I further understand and agree that I am solely responsible for my personal property while it is at any Sender One facility or event; Sender One and its personnel assume no responsibility for any lost or stolen personal property. I also understand and agree that it is my responsibility to keep all personal property under observation or secured. If I become the victim of a theft, I will report it immediately to Sender One personnel.
Should Sender One or anyone acting on its behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.
I am aware of and specifically waive the provisions of California Civil Code Section 1542, 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.” I am aware of and specifically waive the provisions of California Civil Code Section 1714, which provides in pertinent part as follows: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…”
3. COVID-19 POLICIES AND PROTOCOLS
I also acknowledge, accept, and agree that Sender One facilites and activities currently operate with additional requirements stemming from the on-going COVID-19 pandemic; and that I agree to abide by and follow these requirements, which may be changed at the sole discretion of Sender One based on the shifting and evolving circumstances of the pandemic. These requirements include, but are not limited to, the following:
I agree that I and all guests must undergo a health screening prior to entry to a Sender One facility conducted by Sender One staff, which may include a health and contact questionnaire and body temperature check. I further agree to accept the conclusions and decisions reached by Sender One staff and follow the instructions given by Sender One staff and management for entry to a facility based on the health screening.
I agree to the Check-In and Check-Out procedures located at specific stations designated for that function, or if necessary, at the front desk, to log my presence in and out of my session (if reserved) and the facility.
I affirm I will comply with Sender One's hygiene protocols (which may be amended as the Covid-19 pandemic evolves) while on-site, including, but not limited to, the following: maintaining a minimum distance of six (6) feet from other individuals; properly wearing (over nose and mouth) a face covering when, where, and how Sender One instructs and requires; complying with signage posted throughout the facility, which includes closures of certain areas of the facility; washing hands (with soap and water; or hand sanitizer) as needed; using liquid chalk prior to touching climbing holds and climbing walls; and cleaning surfaces and common equipment after my use of it.
I will accept the conclusions and decisions reached by Sender One staff; and follow the instructions given by Sender One staff and management for remaining at a facility based on my ability to comply with Sender One and government-mandated health and hygiene protocols.
I understand and will comply to the best of my ability with the following recommendations: arrive at a facility already dressed appropriately for physical activity; minimize the amount of belongings I bring into a facility; keep my belongings in a single location within a facility; and use a facility when it has less traffic.
I consent to and will help to the best of my abiliities any contact tracing and communications Sender One may undertake in light of contact tracing, particularly in accordance with local public health officials, guidance, and mandates.
4. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL, ARBITRATION, AND SEVERABILITY:
This Release shall be governed by California law, without regard to its conflict of law rules, including its validity and enforceability, and construed broadly to provide a release and waiver to the maximum extent permissible under applicable law. I VOLUNTARILY WAIVE ANY RIGHT I MAY HAVE TO A TRIAL BY JURY IN ANY ACTION INVOLVING ANY RELEASED PARTY. I agree that if any portion of this Release is held to be invalid, void, or unenforceable, the remaining portions shall nonetheless remain in full force and effect.
FURTHERMORE, I agree that any controversy, dispute, or claim I have arising out of, in connection with, or in relation to any Released Party or this Release shall be submitted for resolution through final and binding arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures in the County of Los Angeles, California. Any Court of competent jurisdiction may enforce these arbitration provisions, and judgment on the award may be entered in any court having jurisdiction. The parties submit to the jurisdiction of the Superior Court of California, County of Los Angeles, California, for purposes of confirming any such award and entering judgment. In the award, the arbitrator may allocate all or part of the costs of the arbitration, including the arbitrator's fees, and the reasonable attorney's fees of the prevailing party.
This agreement shall be effective and binding upon my heirs, next of kin, executors, administrators and assigns, in the event of my death. By signing this agreement, I waive the right to bring a court action to recover compensation or obtain any other remedy for any injury to my property or myself, or for my death, however caused, arising out of my use of Sender One facilities, now or any time in the future, whether caused by Sender One’s negligence or that of its officers, agents or employees. I agree to pay for all legal fees accumulated by Sender One, incurred by any claims made by me or on my behalf.
TO BE SIGNED BY THE PARTICIPANT:
I am at least 18 years of age and otherwise legally competent to sign this agreement. This Release of Liability, Assumption of Risk, Indemnification, and Participation Agreement shall be effective and binding upon me and upon my assigns, heirs, representatives, executors and administrators. My participation in activities at Sender One facilities or affiliated events is purely voluntary, and I elect to participate in spite of the risks. I certify that I have adequate insurance to cover any injury or damage I may cause or suffer while participating, or else I agree to bear the costs of such injury or damage myself. I further certify that I have no medical or physical conditions that could interfere with my safety, or else I am willing to assume and bear the costs of all risks that may be created, directly or indirectly, by any such condition. I have had sufficient opportunity to read this entire document. I have had the opportunity to ask questions about this document. By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in activities at Sender One facilities or involving Sender One, I may be found by a court of law to have waived my right to maintain a lawsuit against Sender One or any of the other Released Parties on the basis of any claim from which I have released them herein. I further agree to indemnify, hold harmless and defend the Released Parties from and against any loss, damage, liability, expense, costs, and/or attorneys’ fees arising from my participation in activities at Sender One facilities or affiliated events.
I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND ITS CONTENTS AND IMPLICATIONS.
Date: June 5, 2023