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XCAL SHOOTING SPORTS AND FITNESS (XCAL)

USAGE AGREEMENT

March 3, 2024

THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY

I, hereby acknowledge that I have voluntarily applied to enter on to and to engage in or to observe shooting and other activities (the Activities) at XCAL Shooting Sports and Fitness (the Club). I further acknowledge and understand that “shooting and other activities” includes any and all activities of any kind whatsoever in which I engage or observe while traveling to or from the Club or at the Club, regardless of the sponsoring party.

As consideration for the right to participate in the Activities, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned on behalf of the undersigned and any listed minor (the Participants), as to whom the undersigned represents and warrants that this is such minor’s parent or legal guardian, and on behalf of the Participants’ heirs, successors and assigns, personal representatives, guardians and next of kin, I agree to all of the terms of this Agreement, including the ASSUMPTION OF RISK, WAIVER OF LIABILITY, DEFENSE and INDEMNIFICATION, and HEALTH AND SAFETY provisions below.

1.     Assumption of All Risks

 

a.     I acknowledge and understand that the Activities are inherently hazardous and involve both known and unanticipated risks which could result in damage or destruction of property and physical or emotional injury, including paralysis or death of myself or of other persons. The risks include but are not limited to being shot by or shooting myself or others, partial or total loss of eyesight or hearing, inhalation or other harmful contact with lead or other contaminants and being struck by flying or falling objects. I understand that certain of such risks cannot be eliminated without compromising the essential qualities of shooting activities. I further understand that before beginning any exercise program or undergoing any dietary or food supplement changes, I should first consult with my physician. I have been informed of, understand and agree that any exercise or nutrition program, whether or not it requires use of equipment, is a potentially hazardous activity

b.     I acknowledge and understand that the nature and condition of the Club facilities, premises and environment is such that both known and unanticipated hazards exist which create or contribute to both known and unanticipated risks inherent in entering on to the Club, in using Club facilities and in engaging in or observing Activities of any kind whatsoever while at the Club.

c.     I acknowledge that the Activities may involve a test of a person’s physical and mental limits and may carry with it a potential for serious injury, property loss and even death. The risks may include but are not limited to those caused by exposure to hazardous conditions, physical or psychological injury, pain, suffering, illness, disfigurement, temporary or permanent disability (including paralysis), economic or emotional loss and death.

d.     I acknowledge that I have received safety instruction prior to engaging in any Activities and I am satisfied with the sufficiency of such instruction for the Activities in which I have decided to engage.

e.     I acknowledge and understand that XCAL makes no warranty as to the design, manufacture, maintenance, condition or fitness for any particular purpose of any Club facilities or equipment, including, but not limited to firearms, ammunition, eye/hearing protection, and first-aid supplies.

f.      I agree to assume all responsibility and liability for any act or acts, even any negligent, reckless or criminal acts or omissions to act, of my Guests at the Club. I understand that my “Guests” includes any and all persons who are not a member of the Club who enter the Club, use the Club facilities or engage in or observe shooting and other Activities at the Club as a result of my invitation, permission or consent.

g.     I agree to take full responsibility for all risks associated with traveling to and from the Club, for physical, psychological or bodily injury, including but not limited to illness, paralysis, death, damages, economical or emotional loss or property theft or damage (including from lockers or vehicles) due to the Activities and participation at the Club, including such injuries as may be due to the NEGLIGENCE or carelessness of others, INCLUDING THE RELEASEES (defined below), including without limitation, any claim or injury related to travel or resulting from the existence of hidden, latent, or obvious defects in or about the Club or any equipment supplied, sold or approved by the Releasees. My assumption of risk includes, but is not limited to, my use of any supplements, equipment (mechanical or otherwise), sports fields, or other areas, sidewalks, parking lots, stairs, any general areas of any facilities, or any equipment all other programs, activities, classes, sessions, seminars, workshops, assessments, events, amenities, or benefits that are sponsored, endorsed or operated by XCAL on or off its premises. I FULLY UNDERSTAND, AND VOLUNTARILY AND WILLINGLY ASSUME, THE RISKS OF INJURY.

h.     I agree to take full responsibility for the selection, examination, adjustment, control, approval and conduct of all Activities, including, without limitation, the condition and adjustment of all shooting and related equipment, including any firearms, weapons or ammunition.

 

2.     Full Release and Waiver of Claims

a.     I agree that I, my next of kin, heirs, guardians, representatives and assigns hereby forever release, acquit, discharge, waive, hold harmless and covenant not to sue the Releasees or its assigns from or for any and all liabilities, claims, demands or causes of action, including all costs, medical expenses and attorney’s fees and any related costs associated therewith, that I, my next of kin, heirs, guardians, representatives, or assigns may have by reason of any Activities, including, but not limited to any claims or losses ARISING BY REASON OF THE RELEASEES’ PASSIVE OR ACTIVE NEGLIGENCE, including negligent, or omitted first-aid or rescue operations or procedures, or any hidden, latent, or obvious defects at or on the Club or in any equipment used, whether or not supplied, sold or inspected by Releasees, property damage, personal injury or death resulting from me or my Guests, other Club members and their Guests, using Club facilities or equipment, or engaging in or observing shooting and other Activities at the Club. I understand that “XCAL Shooting Sports and Fitness” includes any and all members, stockholders, officers, directors, attorneys, agents, employees, contractors, volunteers, guests and affiliated individuals or organizations of Caliber Club Shooting Sports, Inc. (XCAL) or any of its affiliated entities all of which are Releasees.

b.       On behalf of myself and my spouse/partner, children/minor member, other members, Guest, parents, guardians, heirs, next of kin, personal representatives, heirs and assigns, I agree to defend, indemnify and hold the Releasees harmless to the fullest extent permitted by law from and against any claim (including any Negligence Claim) asserted against any of the Releasees by any other person (including but not limited to any other member, any Guest, any other XCAL member or guest, any family member who is not an XCAL member, or any other person or entity) arising out of, resulting from, caused by the use of the Club and the Activities by me, minor members, other members, or Guests. My agreement to defend the Releasees means that I will pay all of the Releasee’s fees and costs incurred to defend the claim (including a Negligence Claim) from the date the claim is asserted. My agreement to indemnify and hold the Releasees harmless means that I will pay any settlement, judgment, or other damages, fees or costs of any type incurred by the Releasees to resolve the claim.

c.       I, THE UNDERSIGNED, PROMISE TO NOT SUE ANY OF THE RELEASEES FOR ANY CAUSE OF ACTION WHATSOEVER, EVEN FOR CLAIMS ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR FROM HIDDEN, LATENT, OR OBVIOUS DEFECTS IN THE CLUB OR EQUIPMENT SUPPLIED, SOLD OR APPROVED BY THE RELEASEES.

d.     It is further understood and agreed that this agreement shall cover all bodily injuries (including death), property damage and any other damage or injuries, known or unknown, regardless of the severity of the injuries or damages.

e.     Negligence Claims. I understand that Negligence Claims include but are not limited to XCAL’s (1) negligent design, construction (including renovation or alteration), repair, maintenance, operation, supervision, monitoring, or provision of the Club and the Activities ; (2) negligent failure to warn of or remove a hazardous, unsafe, dangerous or defective condition; (3) negligent failure to provide or keep premises in a reasonably safe condition; (4) negligent provision of or failure to provide emergency care; (5) negligent provision of services; and (6) negligent hiring, selection, training, instruction, certification, supervision or retention of employees, independent contractors or volunteers; or (7) other negligent act(s) or omission(s).

f.      This Agreement shall not be subject to any claim of mistake of fact, and this agreement expresses a full and complete waiver of all liability claimed and disputed, and regardless of the type of injury, or circumstances concerning any injury. This Agreement is intended to forever bar any claim the Participants might have and is intended to be final and complete.

g.     This Agreement contains the full and complete agreement between the Participants and the Releasees with regard to the subject matter of this Release. Any prior oral representations or agreements concerning this subject matter are expressly superseded by this Release which may not be altered, amended or revoked except by an instrument in writing signed by the Releasees.

 

3.          Health and Safety. I will present my membership card in order to access to the Club. I represent

that I am healthy enough and that that I have sufficient experience and skill to engage safely in the use of the Club and participation in the Activities, and that I have had the opportunity to talk to a doctor prior to use of the Club and the Activities, which XCAL strongly recommends. I acknowledge that XCAL does not and will not provide medical advice. I agree to remove myself, minor members, other members or Guests from use of the Club and participation in the Activities if I observe any hazardous, unsafe, dangerous or defective condition, if or any of them is incapable of engaging in such use safely, or if required or instructed to do so by XCAL. I acknowledge and understand that XCAL has no duty to undertake first-aid or rescue operations or procedures in the event any property damage or physical or emotional injury occurs, and that any such operations or procedures may result in compounded or increased damages or injuries. While XCAL is not obligated to do so, I consent to emergency care by XCAL for me, minor members, other members or Guests I acknowledge that I am responsible for my own conduct, health and safety and that of minor members, other members or Guests, and that XCAL is not responsible for any medical expenses incurred by me, minor members, other members or Guests in connection with the use of the Club and participation in the Activities.

4. Parent or Guardian Agreement. If I am the parent or legal guardian of a minor member, I acknowledge and represent to XCAL that I have the right and authority to make decisions concerning the care, custody and control of each minor member, including but not limited to the right and authority to execute this Agreement on the minor member's behalf. By signing this Agreement, I am binding each of my minor members to its terms, including but not limited to the ASSUMPTION OF RISK, WAIVER OF LIABILITY, DEFENSE AND INDEMNIFICATION and HEALTH AND SAFETY provisions.

 

5.     Consent to Arbitration; Waiver of Jury Trial and Fees and Costs

a.            Any and all disputes arising out of or relating to this agreement or the breach thereof, or any Activities or any injury, liability, claim, demand or cause of action resulting from or relating to any Activities, will be decided by final and binding arbitration pursuant to the expedited Rules and Procedures of JAMS, Inc. in the Commonwealth of Virginia. Judgment on any arbitration award may be entered in any court of competent jurisdiction.

b.            The Participants hereby waive any and all rights to any proceeding in any court, whether federal or state, or any administrative proceeding against the Releasees and agree that their sole remedy, if any, will be an arbitration pursuant to Section 5(a) of this Agreement. THE PARTICIPANTS EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY.

c.              I specifically agree that, if I (on my own behalf or on behalf of another, including an estate) assert a Negligence Claim against the Releasees and/or breach my agreement not to sue the Releasees, I will pay all reasonable fees (including attorneys' fees), costs and expenses incurred by XCAL (XCAL’s Fees and Costs) to defend (1) the Negligence Claim(s) and (2) all other claims based on the same facts as the Negligence Claim(s).

 

6.     Electronic Communications. I expressly consent to receive electronic messages from XCAL, including messages whose primary purpose is to advertise or promote products or services and messages whose primary purpose relates to my transactions or relationship with XCAL, including membership, purchase of products or services, or amendments to this Agreement.

 

7.     Club Policies; Membership Termination or Suspension byXCAL. I understand that XCAL retains complete control over all matters affecting or relating to its members and memberships, including but not limited to membership levels and types, access, prices, dues, fees, premises, facilities, equipment, services, products, programs, activities, classes, sessions, seminars, workshops, assessments, events, amenities or benefits, all of which are subject to change at any time without notice. I will comply, and ensure that minor members, other members and Guests comply, with XCAL's policies, procedures, rules, and regulations (Club Policies), whether set forth on paper, verbally, in club signage, or online at www.xcal.com XCAL may change, modify or otherwise alter any Club Policies at any time without notice. I understand that XCAL may in its sole discretion terminate or suspend my membership or any aspect thereof, including but not limited to applicable guest privileges, for any reason, including but not limited to any conduct by me, minor members, other members or Guests that violates any Club Policies or that XCAL determines to be improper, inappropriate, or contrary to its best interests.

 

8.     Enforceable Agreement

a.             I acknowledge that this Agreement is intended to be as broad and as inclusive as permitted by the laws of the Commonwealth of Virginia.

b.            I agree that this Agreement, including specifically the ASSUMPTION OF RISK, WAIVER OF LIABILITY, DEFENSE AND INDEMNIFICATION, HEALTH AND SAFETY and PARENT OR GUARDIAN Agreement provisions, is intended to be as broad and inclusive as permitted under applicable law. If a decision of an arbiter declares any part of this agreement unenforceable, invalid or void, that part alone shall be severed from this agreement, and the entire remainder of the Agreement, including any partially enforceable provision, shall be fully binding and enforceable to the maximum extent permitted by applicable law.

c.             I am not relying on any oral or written promises, representations, statements, covenants or warranties, other than those set forth herein, to induce me to sign this Agreement. This Agreement may be amended at any time by XCAL upon such notice, if any, as may be required by law. If XCAL fails to enforce any right in this Agreement for any reason, XCAL does not waive its right to enforce it later.

f.          I acknowledge that this agreement shall remain in effect until it is expressly revoked in writing by Releasees.

 

I REPRESENT AND WARRANT THAT I AM AT LEAST 18 YEARS OF AGE AND HAVE FULL LEGAL CAPACITY TO EXECUTE THIS AGREEMENT AND THAT I AM SIGNING OF MY OWN FREE WILL AND THAT I HAVE READ, UNDERSTOOD, RECEIVED A COPY OF, AND AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING SPECIFICALLY THE ASSUMPTION OF RISK, WAIVER OF LIABILITY AND DEFENSE AND INDEMNIFICATION PROVISIONS UNDER WHICH I AM RELINQUISHING LEGAL RIGHTS.


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