VOLUNTARY ACKNOWLEDGEMENT OF RISKS, RELEASE OF LIABILITY, WAIVER CLAIMS AND INDEMNIFICATION, ARBITRATION AGREEMENT, AND IMAGE RELEASE AGREEMENT
Notice: This document affects your legal rights. By signing this document, you are waiving certain legal rights, including the right to sue. By signing below, you acknowledge that you have read and understood the disclosures of risks, voluntarily accept those risks, and agree to be bound by all terms of this Release of Liability and Indemnity Agreement.
In consideration of being allowed entry onto the property and/or being allowed to participate in any activities at the property located at 5347 Old Mexia Road, Waco, Texas 76705 (the “Property”), including, but not limited to, swimming, diving (not allowed), surfing, body surfing, boogie boarding, wake surfing, wake skating, stand up paddle boarding, wakeboarding, surf foiling, knee boarding, slalom skiing, trick skiing, jumping, being pulled by a cable, using bikes (manual or electric), skateboarding, inline skating, roller-skating, sliding, floating, tubing, submerging, walking, running, crawling, riding in any moving vehicle, participating in trampoline activities, eating, drinking, and/or spectating (the “Activities”) the Participant, and the Participant’s parent(s) or legal guardian(s) or supervising companion, if the Participant is a minor (collectively “Participant”), to the fullest extent permitted by law, do hereby AGREE, as follows:
1) WAIVER AND RELEASE ALL CLAIMS: Participant, on behalf of themself, their heirs, assigns, personal representatives and estate, and/or the minor(s), waive and release any and all claims Participant may have against LEMUR ISLAND HOLDINGS LLC; MAKING WAVES WACO LLC; TAMED THE BEAST LLC; and/or CORE FOUR CASA LLC, and each of its/their respective affiliates, owners, employees, managers, members, agents, volunteers, lessors, parent companies, subsidiaries, insurers, related companies and business concerns, past and present, as well as each of their partners, trustees, directors, officers, intellectual property holders, contractors, subcontractors, material suppliers, fabricators, agents, attorneys, servants, and employees, past and present, and successors-in-interest, and each of them (collectively “Released Parties”), arising out of the Participant’s participation in the Activities, including, but not limited to, any rights Participant may have under any Texas Health and Safety Code regarding or related to the Activities. The Participant specifically understands that they are releasing Released Parties from liability for any and all claims for any loss, damage, injury, death, or expense that the Participant (and/or his/her next of kin) may suffer, that arise or allegedly arise from any and all NEGLIGENT or GROSSLY NEGLIGENT acts or omissions, STRICT LIABILITY, or other conduct of the Released Parties; or any actual or alleged defect at the premises, including but not limited to, any alleged defective condition of the property or equipment (whether provided by Released Parties, or brought to the property by Participant or other persons or entities). Under no circumstances will Released Parties be responsible for any injuries to Participants that occur at or about the Property, and Participant is voluntarily releasing and waiving all rights to sue Released Parties.
2) ACKNOWLEDGEMENT AND ASSUMPTION OF ALL RISKS: I UNDERSTAND AND ACKNOWLEDGE that the Activities in which I may voluntarily engage bear certain known risks and unanticipated risks that could result in PHYSICAL OR MENTAL INJURY, DEATH, PARALYSIS, SEVERED LIMBS, DECAPITATION, ILLNESS OR DISEASE, OR DAMAGE to me or my property or to others or their property. I understand and acknowledge those risks, even those caused by the NEGLIGENT acts or omissions of the Released Parties or third parties, that may result in claims against Released Parties. However, I am making an informed choice in consultation with the physician(s) of my own choosing to voluntarily accept such risks due to the thrills, excitement, and benefits of the Activities, and I agree that for me the benefits of the Activities outweigh the risks, which include, but in no way are limited to: (1) the acts, omissions, NEGLIGENCE or GROSS NEGLIGENCE in any degree of Released Parties, or their agents or employees; (2) the risks inherent in the Activities, including but not limited to any injuries such as (a) broken and fractured bones, (b) dislocations, (c) torn ligaments and tendons, (d) sprains and strains, (e) traumatic brain injuries, concussion, injuries to the head, scalp, eyes, ears, spine/spinal cord, body, and/or limbs, (f) torn nails, (g) bumps and bruises, (h) drowning, and/or (i) contracting waterborne or airborne injuries/illnesses (such as those caused by microbes, pathogens, viruses, or any other substance), while participating in the Activities; (3) latent or apparent defects or conditions of the Activities or the Property; (4) improper or inadequate instruction or supervision regarding the Activities or use of the Property; (5) the behavior of coparticipants and spectators; (6) accidents or incidents on the Property, including, but not limited to, accidents or incidents in wet areas, such as pool decks, tiled, concrete, or other wet surfaces; (7) weather or acts of God, including, but not limited to, lightning, wind, thunderstorms, and other circumstances beyond the control of the Released Parties; and/or (8) first aid, emergency treatment or services rendered or failed to be rendered by Released Parties, or their agents or employees.
3) I UNDERSTAND AND ACKNOWLEDGE that the above list is not complete or exhaustive, and that other risks, known or unknown, identified or unidentified, anticipated or unanticipated, may also result in injury, death, illness, disease, or damage to me or to my property, and I contractually assume any and all such risks. I FURTHER ACKNOWLEDGE that I, and/or the minor(s), am/are in good physical and mental health, and do not suffer from any condition, disease, or disablement that would or could potentially affect participation in the Activities or use of the Property. Further, I acknowledge that I and the minor(s) am/are not purchasing or leasing the property, facility and/or any attraction, but rather, am/are being afforded a nonexclusive and revocable right to participate in the property, facility, and/or various attractions. Additionally, I acknowledge that Released Parties are providing recreational services. I ACKNOWLEDGE AND AGREE that the employees of the Released Parties have difficult jobs to perform that require the employees to monitor the attractions and cannot be held responsible for the activities, actions, or inactions of any individual participant.
VOLUNTARY ACCEPTANCE AND ASSUMPTION OF RISK AND RESPONSIBILITY: I EXPRESSLY AND VOLUNTARILY AGREE, COVENANT AND PROMISE TO ACCEPT AND ASSUME ALL RESPONSIBILITIES, AND RISK FOR INJURY, DEATH, ILLNESS OR DISEASE OR DAMAGE to me, the minor(s), and others or to my or others’ property arising from the participation in the Activities or use of the Property.
4) RELEASE AND INDEMNITY: I FOR MYSELF AND/OR THE MINOR(S) VOLUNTARILY RELEASE AND FOREVER DISCHARGE AND COVENANT NOT TO SUE Released Parties and all other persons or entities affiliated therewith, from any and all liability, claims, demands, actions, or rights of action, based upon, related to, arising out of, or in any way connected or involving participation in the Activities or use of the Property, including, but specifically not limited to, any and all NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT of Released Parties. I UNDERSTAND THIS IS A RELEASE OF LIABILITY THAT IS VALID FOREVER and will apply to all current and future participation in the Activities or use of the Property. I understand that this RELEASE OF LIABILITY will prevent me, my child, my heirs, or my estate from bringing any action at law, suit in equity, or other jurisdictional proceeding or making any claim for damages, injury, or death in the event of damage, injury, or death arising from participation in the Activities or use of the Property.
I FURTHER AGREE, PROMISE AND COVENANT TO HOLD HARMLESS AND TO INDEMNIFY AND DEFEND Released Parties from all loss, costs, and expenses, including attorneys’ fees, or any other fees and costs, incurred in connection with claims for mental or bodily injury, wrongful death, or property damage that may be filed against Released Parties and that are related to, arise out of, or are in any way connected with my participation in the Activities or use of the Property. Such indemnity and defense obligation shall further extend to any claim, loss, or lawsuit that alleges that I negligently, grossly negligently, or intentionally caused any injury, death, or damage to spectators or other third parties in the course of my participation in the Activities. This indemnity provision is to be interpreted to afford the greatest relief to Released Parties, as recognized under Texas law, and will obligate the indemnitor even if Released Parties are found to be actively negligent or grossly negligent. This obligation to defend and indemnify is not limited in time or to a specific dollar amount.
5) RELEASE OF ALL RIGHTS RELATED TO MY AUDIO AND PHOTOGRAPHIC IMAGE: I hereby agree to a blanket release of all rights related to my and/or the minor(s) audio and photographic image that may arise out of my participation in the Activities or use of the Property. I understand that this release includes any and all marketing, promotion, or advertising that may occur anywhere and anytime on any media as later used by Released Parties. Further, I hereby grant full permission for Released Parties, to record any or all of the participation, and name and likeness in the Activities for photos, motion pictures, TV, radio, Internet, recordings, videotapes, and other media, known or unknown, and to use them in perpetuity, no matter by whom taken or recorded, in any manner for publicity, promotions, advertising, trade, or commercial purposes, without any reimbursement of any kind due to me, or the need to pay me any fee or compensation whatsoever.
6) FOLLOW ALL RULES: I FOR MYSELF AND/OR THE MINOR(S) understand all rules and agree to follow all rules of the Activities, including all written instructions and verbal commands provided by Released Parties including NO HEADFIRST SLIDING on the Slides. I further agree to exercise good judgment for the health and safety of myself and others, and to use common sense. I UNDERSTAND AND ACKNOWLEDGE that there MAY or MAY NOT be LIFEGUARDS on duty at the Property. I and any minor(s) in my care agree to follow any and all instructions of the Released Parties, their agents, and employees while I am at the Property. I agree that I and/or any minors may be asked to leave the Property if we do not follow such instruction and that no refunds will be provided in such instance.
7) AGREE TO NOTIFY: I hereby agree to immediately notify Released Parties if, while participating in the Activities, the Participant observes any hazard, which he/she believes jeopardizes his/her personal safety or that of others. I understand and agree to immediately report all injuries to the management of the Property so all relevant documentation can be stored for future retrieval. In the absence of the immediate report, I acknowledge that the facility and its operators may be prejudiced, and disadvantaged should I file any claim for arbitration. As such if I fail to report the incident, I waive all right to claim any injury.
8) ARBITRATION OF DISPUTES; WAIVER OF JURY TRIAL; AND CHOICE OF LAW: The parties agree that ANY AND ALL DISPUTES ARISING OUT OF THE ACTIVITY, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY ARBITRATION IN TEXAS BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS RULE 16.1 EXPEDITED 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 COMPETENT JURISDICTION.
This agreement shall be governed by and construed under the laws of Texas, without regard to conflicts of law provisions. 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 Rule & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness. If, despite the representations made herein, I or anyone on behalf of myself and/or minors identified in this agreement, file or otherwise initiate a lawsuit against any Released Party(ies), I agree to venue in the courts of McLennan County in the state of Texas, and, in addition to my agreement to defend and indemnify the Released Parties, I agree to pay within 60 days liquidated damages in the amount of $5,000 to the defendant Released Party(ies). Should I fail to pay this liquidated damages amount within the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount calculated at 12% per annum.
9) ENTIRE AGREEMENT AND SEVERABILITY: I understand that this is the entire Agreement between the undersigned and Released Parties, and that it cannot be modified or changed in any way by the representations or statements of Released Parties or any employee or agent of Released Parties, or by the undersigned. I understand and agree that this Agreement is severable and that if any clause is found to be invalid, the balance of the Agreement will remain in effect and will be valid and enforceable. I have read this entire document, understand it completely, and agree to be bound by its terms. I am of sound mind, not impaired in any way, and I voluntarily enter into this agreement freely and of my own will.
10) BINDING EFFECT: In the event of my death or incapacity, this Agreement shall be effective and binding upon my heirs, next of kin, executors, administrators, assigns, and representatives. On behalf of myself and any minor(s) listed here on, I warrant, represent, and otherwise state that, by so agreeing to the provisions set forth herein, I have the actual and apparent authority to act and bind a parent and/or legal guardian of the minor(s), other than myself, to this Agreement, regardless of whether that parent and/or legal guardian is a signatory hereto, and that my signature constitutes binding and intended assent to the provisions set forth herein.
RULES AND REGULATIONS: All riders and persons who visit Waco Surf must use common sense at our facility and in riding behind the cable and surf, encountering the features we have provided for your enjoyment. If a patron or rider has any questions, they should let the Waco Surf staff know right away. In addition, all persons must follow these rules when at Waco Surf:
1. Persons may not participate in activities unless they have a signed liability waiver on file with Waco Surf. If a participant is under age 18, their parent or legal guardian must sign this document in the presence of a Waco Surf employee.
2. Participants will not be allowed to enter or remain on the Premises unless they are wearing appropriate protective and safety gear for the Participation Activities in which they are participating.
3. Participants must wear U.S.C.G. approved flotation devices while in the water or using the cable system.
4. Participants must engage in Participation Activities in a safe manner at all times and avoid collisions with other persons.
5. Participants may engage in Participation Activities in designated areas only.
6. Participants must obey all safety instructions from Waco Surf at all times.
7. Fighting or other aggressive or disruptive behavior is not tolerated and may lead to ejection from the premises.
8. You may bring food and drinks, but NO glass is allowed.
9. Equipment or gear not required for participation in the Participation Activities and any other items must be stored in locations outside the Participation Activities locations.
10. No illegal drugs are allowed on the Premises.
11. No profanity or vulgar language is permitted on the Premises.
12. No weapons are allowed on the Premises.
13. Dogs are allowed only by the cable area but must be on leashes at all timed. No PETS allowed at the Slides, Lazy River, and Surf Resort areas.
14. No contests of any sort are allowed on the Premises unless organized and run by Waco Surf or other authorized persons.
15. Waco Surf reserves the right to terminate any membership or pass at any time and to eject and anyone at any time for any reason.
16. Safeguard your valuables and possessions at all times. Waco Surf is not responsible for lost and/or stolen items.
17. Alcohol may not be consumed prior to or during participation in any Participation Activities.
18. Participants must obey all posted rules.
19. Violations of rules may result in ejection from the premises and cancellation of all tickets, passes and memberships without refund.
20. Parking upon Waco Surf Premises is for the convenience of patrons only. Cars should be locked at all times. Waco Surf is not responsible for any damage to any vehicle or theft.
I UNDERSTAND AND ACKNOWLEDGE that Waco Surf reserves the right to modify these rules as well as to post additional rules that I must comply with upon the premises.
I AGREE TO DEFEND AND INDEMNIFY EACH RELEASE PARTY FOR ALL LIABILITY AND CLAIMS, INCLUDING ATTORNEYS’ FEES ARISING, WHETHER IN WHOLE OR IN PART, FROM MY AND/OR THE MINOR(S)’ PARTICIPATION IN ANY ACTIVITY OR FROM ANY MISREPRESENTATIONS OR FRAUDULENT EXECUTION OF THIS AGREEMENT.
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND I AM AWARE THAT BY SIGNING THIS AGREEMENT, I HAVE WAIVED CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.
May 28, 2022
PARENTS OR GUARDIANS MUST ALSO SIGN IF THE PARTICIPANT IS UNDER 18 YEARS OLD.
AFFIDAVIT OF PARENT OR LEGAL GUARDIAN I, the undersigned, declare that I am the parent of, or the legal guardian of, the below named minor and have the capacity to execute documents on behalf of such minor.
I understand that as a condition to participate in the Activities the parent or legal guardian of the minor Participant must sign certain legal documents, including but not limited to Acknowledgements of Risks, Releases, and Indemnity Agreements.
I am signing those documents, freely, without any fraud or duress and acknowledge that I have read and understand the same.
In the event that it is determined that I am not the parent or legal guardian of the minor, or did not have the legal capacity to execute the documents on behalf of said minor, then I agree to defend and indemnify (including attorney’s fees): LEMUR ISLAND HOLDINGS LLC; MAKING WAVES WACO LLC; TAMED THE BEAST LLC; and/or CORE FOUR CASA LLC and each of its/their respective affiliates, owners, employees, managers, members, agents, volunteers, lessors, parent companies, subsidiaries, insurers, related companies, and business concerns, past and present, as well as each of their partners, trustees, directors, officers, intellectual property holders, contractors, subcontractors, material suppliers, fabricators, agents, attorneys, servants and employees, past and present, and successors-in-interest, and each of them, if any litigation is instituted, as a result of any injury or death or property damage claim for damage arising out of, relating to, or in any way connected with, minor’s participation in the Activities or use of the Property.
I understand that this indemnity provision is in addition to (and not in lieu of) any other indemnity provision found in this and/or related/separate document.
May 28, 2022