RELEASE AND WAIVER OF LIABILITY AGREEMENT
THIS RELEASE AND WAIVER OF LIABILITY AGREEMENT (the "Agreement") is made and entered into as of the date set forth below, by and between Diggers Cove, LLC (the "Center"), located at 7200 Independence Parkway, Suite 238, Plano, Texas 75025, and the undersigned parent or legal guardian (the "Parent/Guardian") on behalf of the minor child or children identified below (the "Participant").
WHEREAS, the Center provides various recreational, educational, and physical activities for children, including but not limited to sand play, toys, birthday parties, and related activities (collectively, the "Activities"); and
WHEREAS, the Parent/Guardian desires for the Participant to engage in the Activities offered by the Center; and
WHEREAS, the Parent/Guardian acknowledges and understands that participation in the Activities involves certain inherent risks, dangers, and hazards that may result in injury, illness, or property damage to the Participant or others.
NOW, THEREFORE, in consideration of the Center permitting the Participant to engage in the Activities, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parent/Guardian hereby agrees as follows:
1. USE OF PREMISES AND PARTICIPATION IN ACTIVITIES
1.1 The Parent/Guardian understands and agrees that the Participant may only use the Center's premises (the "Premises") and participate in the Activities in accordance with all rules, regulations, and instructions established by the Center or its staff.
1.2 The Parent/Guardian acknowledges that the Center reserves the right to refuse or terminate the Participant's participation in any Activity or use of the Premises at any time if, in the sole discretion of the Center's staff, the Participant's conduct violates any rule or instruction, is disruptive, inappropriate, or in any way interferes with the safe operation of the Center or the safety or enjoyment of other participants.
1.3 The Parent/Guardian agrees to promptly remove the Participant from the Premises upon request by the Center's staff for any reason.
1.4 The Parent/Guardian agrees that Participant grants permission to Diggers Cove, LLC to photograph, record, or otherwise capture the likeness or voice of Participant and/or the minor children during activities, and to use such media for lawful promotional purposes including social media, marketing, and advertising, without compensation. If Participant does not wish to grant this permission, Participant must notify Diggers Cove, LLC in writing prior to participation.
2. ASSUMPTION OF RISK
2.1 The Parent/Guardian, on behalf of the Participant and themselves, KNOWINGLY, VOLUNTARILY, AND FREELY ASSUMES ALL RISKS, both known and unknown, even if arising from the negligence of the Center or others, and assumes full responsibility for the Participant's participation in the Activities.
2.2 The Parent/Guardian acknowledges and understands that the Activities involve physical exertion and movement that may be strenuous and that participation in the Activities carries inherent risks including, but not limited to:
- Minor injuries such as scratches, bruises, sprains, and strains;
- Major injuries such as joint or back injuries, broken bones, heart attacks, and concussions;
- Catastrophic injuries including paralysis and death;
- Property damage or loss; and
- Other risks not reasonably foreseeable at this time.
2.3 The Parent/Guardian acknowledges that the Participant is in good health and does not have any medical, physical, or mental condition that could be aggravated by participation in the Activities or that could impact the Participant's ability to safely participate in the Activities.
2.4 The Parent/Guardian acknowledges that the Center is not responsible for the actions or activities of other participants using the Premises.
3. RELEASE FROM LIABILITY
3.1 The Parent/Guardian, on behalf of themselves, the Participant, and their respective heirs, assigns, personal representatives, and next of kin, HEREBY RELEASES, INDEMNIFIES, AND HOLDS HARMLESS the Center, its owners, officers, directors, managers, agents, employees, volunteers, other participants, sponsors, advertisers, and, if applicable, owners and lessors of the Premises (collectively, the "Released Parties"), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with the Participant's presence at the Premises or participation in the Activities, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASED PARTIES OR OTHERWISE, to the fullest extent permitted by law.
3.2 This release extends to all claims of every kind or nature whatsoever, foreseen or unforeseen, known or unknown, including claims of negligence on the part of the Released Parties.
3.3 The Parent/Guardian understands that this release does not extend to claims of gross negligence, intentional or reckless misconduct, or any other liabilities that applicable law does not permit to be released by agreement.
4. COVENANT NOT TO SUE
4.1 The Parent/Guardian, on behalf of themselves, the Participant, and their respective heirs, assigns, personal representatives, and next of kin, agrees not to initiate any claim, lawsuit, court action, or other legal proceeding or demand against the Released Parties, nor join or assist in the prosecution of any claim for money or other damages which anyone may have, on account of injuries (including death), losses, or damages sustained by the Participant or the Parent/Guardian in connection with the Participant's participation in the Activities or use of the Premises, and the Parent/Guardian hereby waives any right to do so.
4.2 This covenant not to sue does not apply to claims that cannot be released under applicable law, including claims based on gross negligence, intentional or reckless misconduct.
5. INDEMNIFICATION
5.1 THE PARENT/GUARDIAN HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES from and against any and all claims, demands, losses, liabilities, damages, costs, and expenses, including attorneys' fees, arising from or related to:
- Any injury, disability, death, or loss or damage to person or property sustained by the Participant while on the Premises or participating in the Activities;
- Any injury, disability, death, or loss or damage to person or property caused or contributed to by the Participant while on the Premises or participating in the Activities; and
- Any breach by the Parent/Guardian or the Participant of any provision of this Agreement.
5.2 This indemnification obligation shall survive the termination of this Agreement and the Participant's participation in the Activities.
6. MEDICAL TREATMENT AUTHORIZATION
6.1 In the event of an injury to the Participant during the Activities, the Parent/Guardian hereby authorizes the Center to secure medical treatment for the Participant and to release any medical information available to the Center to appropriate medical personnel.
6.2 The Parent/Guardian agrees to pay all costs associated with such medical treatment and related transportation for the Participant and HEREBY INDEMNIFIES AND HOLDS HARMLESS the Released Parties from any costs, expenses, or liabilities incurred in connection with such medical treatment.
6.3 The Parent/Guardian acknowledges that the Center does not provide health, medical, disability, or other insurance coverage for participants.
7. COVID / INFECTIOUS DISEASE CLAUSE
The Parent/Guardian acknowledges that Participants are not allowed in the Facility if any Participant has a temperature or contagious medical condition. In addition, Participants agree to comply with all local, state, and federal COVID-19 Social Distancing Guidelines, and amendments thereto: including compliance with orders and guidelines related to any other health and medical conditions.
8. RESPONSIBILITY FOR PERSONAL PROPERTY
8.1 The Parent/Guardian acknowledges and agrees that the Center is not responsible for any personal property brought to the Premises by the Participant or the Parent/Guardian, including but not limited to clothing, equipment, toys, electronic devices, or other valuables.
8.2 The Parent/Guardian assumes all risk of loss, theft, or damage to any personal property brought to the Premises.
9. REPRESENTATIONS AND WARRANTIES
9.1 The Parent/Guardian represents and warrants that:
- They are the legal parent or guardian of the Participant and have the legal authority to execute this Agreement on behalf of the Participant;
- They have read this Agreement and fully understand its terms;
- They understand that they are giving up substantial rights, including the right to sue;
- They acknowledge that they are signing this Agreement freely and voluntarily, without any inducement or assurance of any nature; and
- They intend this Agreement to be a complete and unconditional release of all liability to the greatest extent allowed by law.
10. GOVERNING LAW AND VENUE
10.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule.
10.2 Any legal suit, action, or proceeding arising out of or related to this Agreement or the Participant's participation in the Activities shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the County of Collin and the Parent/Guardian irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
11. WAIVER
11.1 No waiver of any term or right in this Agreement shall be effective unless in writing and signed by an authorized representative of the waiving party.
11.2 The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
12. SURVIVAL
12.1 Any provision of this Agreement providing for performance by either party after termination of this Agreement shall survive such termination and shall continue to be effective and enforceable.
13. COMPLIANCE WITH LAWS
13.1 The Parent/Guardian agrees to comply with all applicable federal, state, and local laws, regulations, and rules while on the Premises or participating in the Activities.
14. SEVERABILITY
14.1 If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
15. ENTIRE AGREEMENT; MODIFICATION; BINDING EFFECT
15.1 This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement or understanding between them with respect to such subject matter.
15.2 This Agreement may not be modified or amended except by a written instrument executed by both parties.
15.3 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and permitted assigns.
16. DISPUTE RESOLUTION
16.1 Mediation. In the event that any dispute arises between the parties in relation to this Agreement, or out of this Agreement, and the dispute is not resolved by negotiation within ten (10) days, the parties agree to submit the dispute to mediation. Any party to the dispute may give written notice to the other party of his or her desire to commence mediation, and a mediation session must take place within 30 days after the date that such notice is given. The parties must jointly appoint a mutually acceptable mediator. If the parties are unable to agree upon the appointment of a mediator within ten (10) days after the party has given notice of a desire to mediate the dispute, any party may apply to National Arbitration and Mediation, or such other organization or person agreed to by the parties in writing, for appointment of a mediator. The parties further agree to share equally the costs of the mediation, which costs will not include costs incurred by a party for representation by counsel at the mediation. Mediation shall take place in Frisco, Texas metro area. If mediation does not produce an agreeable outcome, the parties shall enter into binding arbitration.
16.2 Arbitration. Any dispute arising out of the terms of this Release and Waiver and that cannot be resolved through mediation shall be settled by binding arbitration in the Frisco, Texas metro area. The disputing parties shall attempt to select a single arbitrator who is acceptable to all. If that cannot be done within twenty-one (21) days after notice of demand for arbitration shall have been given to all disputing parties, then the matter shall be submitted to a panel of three (3) arbitrators, one selected by each of the two disputing sides. The two so chosen shall select the third, who shall serve as moderator. The arbitrator or arbitrators shall promptly obtain such information regarding the matter as the Arbitrator(s) deem(s) advisable to be fully informed of the facts and circumstances, and shall decide the matter with dispatch and render a written award which shall be delivered to the Company. Any such award shall be a conclusive determination of the matter and shall be binding upon each Member (or Successor in Interest). At the time of rendering the award, the Arbitrator(s) shall establish the Arbitrator fee and expenses in connection therewith. Such fees and expenses shall be allocable by the arbitrator in the award. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. No dissolution or termination of the Company shall affect or impair any party's rights to arbitrate a dispute under this Section. Notwithstanding the foregoing provisions, any party may apply to a Court for injunctive relief and other interim measures to prevent or stop irreparable harm to such party's rights or property during the pendency of any arbitration proceeding.
ACKNOWLEDGMENT OF UNDERSTANDING
I, THE UNDERSIGNED PARENT/GUARDIAN, HAVE READ THIS RELEASE AND WAIVER OF LIABILITY AGREEMENT AND FULLY UNDERSTAND ITS TERMS. I UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
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