ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNIFICATION AGREEMENT
This Assumption of Risk, Waiver of Liability, and Indemnification Agreement (Agreement) is entered into on the date this Agreement is executed between Spicar’s Martial Arts, Inc. (SMA), the Adult Participant as identified by signature below, and if any minor(s) is/are named below, the Adult Participant on behalf of and as parent or legal guardian for such Child Participant(s) as defined herein. Collectively, Adult Participant and Child Participant are referred to as the Participant. As valid consideration for entry into the Premises and participation in the Activities, as defined below, including any of those Activities that may occur in, about, or near the premises located at 2120 E. Southlake Blvd, Suite B, Southlake, Texas 76092 and 1125 Davis Blvd, Suite 300, Southlake, TX 76092 (Premises) or any other premises wherever located, the undersigned agree as follows:
1. Nature of the Activities.
Spicar’s Martial Arts, Inc. (SMA) is a martial arts training facility which offers Participants the opportunity to train in a number of martial arts training classes and related physical activities, such as martial arts, taekwondo, karate, boxing and kickboxing training, safety and self-defense training, martial arts weapons training, sparring and fighting, gun safety and disarm training, pepper spray handling and use, plastic, wooden and concrete board/block breaking, martial arts aerobics, acrobatics and gymnastics, birthday parties, dodge ball games, summer camps, day camps, competitions, tournaments and championships, and other events and activities.
These activities can help produce many benefits for the Participants, including pleasure, improved physical fitness, more attractive appearance, more energy, greater enjoyment of life, and other health and mental benefits. However, SMA feels it is important that the Participants know that martial arts and related activities, including but not limited to the above-mentioned activities, are active, vigorous and dangerous, and consequently, involve risks of injury that are inherent to the activity. Even though SMA (a) has designed the facility with safety as a prime concern, (b) provides instruction in some activities, (c) provides general supervision of activities, (d) has developed rules and policies that focus on safety, it is impossible to eliminate all risk and possibility of injury, serious injury and catastrophic injury, including death.
2. Types of Risks.
Some of the Activities, as defined below, available at SMA include, but are not limited to, martial arts and self-defense training, body contact including grabbing, sweeping, throwing, joint locking, striking, choking, kicking and punching equipment as well as other Participants. Activities also include jumping, twisting, spinning, aerobics, acrobatics, gymnastics, martial arts weapons training, ninja warrior courses and different obstacle courses, dodge ball games and other physical games, competition in championships and tournaments, exercises and other miscellaneous activities. Participants also train in plastic, wooden and concrete board/block breaking, and handle and train with martial arts weapons. The training and activities are vigorous and strenuous, involving bodily contact in a unique environment and such they pose an abnormal risk of injury, and always involve certain risks, including but not limited to, death, serious neck and spinal injuries, concussion, complete or partial paralysis, brain damage, complete or partial blindness, loss of hearing, muscle and tendon strains and tears, and serious injury to any and all bones, joints, muscles, and internal organs. Risks also include over-exertion, landing wrong, using improper form or technique, colliding with other participants, erratic co-participant behavior, unexpected failure of equipment, injury by equipment, and error of judgement by staff members.
3. Types of Injuries.
SMA feels that it is important that the Participants understand the three types of injuries that can occur. First is the common minor injury. This type includes, but is not limited to, muscle strains and sprains, bruises, abrasions, and contusions. The second type of injury is the serious injury. Examples of serious injuries are broken bones, ligament and joint injuries, concussions, and eye injury. These are rare, but do occasionally occur. The third type of injury is the catastrophic injury. Some examples of catastrophic injury are brain injury, blindness, paralysis, heart attack, and death. Even though the likelihood of such an injury is very remote, we feel that the Participants should be aware of all possibilities.
4. Assumption of Risks.
On behalf of myself and as the parent or legal guardian of the Child Participant(s), I warrant I have read this Agreement in its entirety, acknowledge that the Activities contain inherent risks which vary with the activity, understand the demands of the Activities relative to Participant’s physical condition and skill level, appreciate the types of injuries that may occur as a result of the Activities and their potential impact on our safety, well-being, and lifestyle, and assert that participation is voluntary and that all Participants knowingly assume all risks inherent with the Activities. PARTICIPANT ACKNOWLEDGES THAT THE PROTECTED PARTIES WILL NOT PAY FOR ANY COST OR EXPENSES INCURRED BY PARTICIPANT IF PARTICIPANT IS INJURED.
5. Release of Claims.
TO THE FULLEST EXTENT PERMITTED BY LAW, PARTICIPANT (AND ON BEHALF OF HIS/HER HEIRS, EXECUTORS AND REPRESENTATIVES) RELEASES AND AGREES NOT TO SUE SPICAR’S MARTIAL ARTS, INC. AND ANY OF THEIR AFFILIATES OR SUBSIDIARIES, RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, HEIRS, ASSIGNS, VOLUNTEERS, INDEPENDENT CONTRACTORS, EQUIPMENT PROVIDERS, AND INSURERS OF ALL OF THEM (COLLECTIVELY, THE “PROTECTED PARTIES”) FROM AND AGAINST ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, SUITS, CAUSES OF ACTION, COSTS, FEES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES AND COURT OR OTHER COSTS) RELATING TO, RESULTING FROM, OR ARISING OUT OF OR ALLEGED TO HAVE ARISEN OUT OF (IN WHOLE OR IN PART) ANY BODILY INJURY TO OR DEATH OF PARTICIPANT OR DAMAGE TO OR LOSS OF PARTICIPANT'S PROPERTY (A) DURING OR RELATING TO PARTICIPANT'S PARTICIPATION, WHETHER ACTIVELY OR PASSIVELY, IN ANY MARTIAL ARTS TRAINING AND RELATED PHYSICAL AND OTHER ACTIVITIES, SUCH AS MARTIAL ARTS, TAEKWONDO, KARATE, BOXING AND KICKBOXING TRAINING, SAFETY AND SELF-DEFENSE TRAINING, MARTIAL ARTS WEAPONS TRAINING, SPARRING AND FIGHTING, GUN SAFETY AND DISARM TRAINING, PEPPER SPRAY HANDLING AND USE, PLASTIC, WOODEN AND CONCRETE BOARD/BLOCK BREAKING, MARTIAL ARTS AEROBICS, ACROBATICS AND GYMNASTICS, BIRTHDAY PARTIES, DODGE BALL GAMES, SUMMER CAMPS, DAY CAMPS, AND OTHER EVENTS AND ACTIVITIES, USE OF ANY EQUIPMENT OR ATTRACTIONS, INSTRUCTION, TRAINING, CLASSES, OBSERVATION, USE OF THE LOCKER ROOM, BACKROOM AND BATHROOM AREA, USE OF ANY PORTION OF THE PREMISES, INCLUDING, BUT NOT LIMITED TO, THE ASSOCIATED SIDEWALKS AND PARKING LOTS, AND ANY COMPETITION, EVENT, OR PROGRAM SPONSORED BY OR AFFILIATED WITH THE PROTECTED PARTIES (COLLECTIVELY, “ACTIVITIES”), (B) OCCURRING IN OR ABOUT THE PREMISES (INCLUDING THE PREMISES) WHERE ANY OF THE ACTIVITIES ARE TAKING PLACE, CONDUCTED, OR PERFORMED BY PARTICIPANT OR ANYONE ELSE, OR IN TRANSPORTATION TO AND FROM ANY OF THE ACTIVITIES, (C) RESULTING FROM DAMAGE TO, LOSS OF, OR THEFT OF PERSONAL PROPERTY OF PARTICIPANT AND DUE TO THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF THE PROTECTED PARTIES. THE RELEASE CONTAINED IN THE PARAGRAPH WILL APPLY EVEN IF ANY SUCH INJURY OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF THE PROTECTED PARTIES OR PARTICIPANT.
ADULT PARTICIPANT, ON BEHALF OF HIMSELF AND HIS HEIRS, EXECUTORS AND REPRESENTATIVES AGREES TO INDEMNIFY, DEFEND, RELEASE, AND HOLD HARMLESS THE PROTECTED PARTIES FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, LIENS, JUDGMENTS, SETTLEMENTS, PROCEEDINGS, COSTS, FEES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES AND COURT OR OTHER COSTS) OF ANY NATURE WHATSOEVER FOR OR RELATING TO DEATH, BODILY INJURY OR PROPERTY DAMAGE RESULTING FROM, RELATING TO, OR CAUSED BY (WHETHER IN WHOLE OR IN PART) ANY OF THE FOLLOWING MATTERS (WHICH NECESSARILY INCLUDE ALL CLAIMS THAT DO OR MAY BELONG TO THE CHILD PARTICIPANT(S)): (A) PARTICIPANT'S ACTS, OMISSIONS OR PRESENCE ON OR ABOUT ANY PART OF THE PREMISES OR OTHER PREMISES WHERE ACTIVITIES ARE TAKING PLACE, CONDUCTED, OR PERFORMED BY PARTICIPANT OR ANYONE ELSE, (B) PARTICIPANT'S ACTIVE OR PASSIVE PARTICIPATION IN, OR OBSERVANCE OF, ANY OF THE ACTIVITIES; (C) ANY CLAIMS ARISING OUT OF THE NEGLIGENT, GROSSLY NEGLIGENT, OR WILLFUL ACTS OR OMISSIONS OF PARTICIPANT OR ANY GUEST OR INVITEE OF THE PROTECTED PARTIES, OR (D) PARTICIPANT'S USE OF ANY FIXTURES, EQUIPMENT OR PERSONAL PROPERTY IN, ON OR ABOUT PREMISES OR OTHER PREMISES WHERE ACTIVITIES ARE TAKING PLACE, CONDUCTED, OR PERFORMED BY PARTICIPANT OR ANYONE ELSE. THE INDEMNITY CONTAINED IN THIS PARAGRAPH WILL APPLY EVEN IF ANY SUCH INJURY OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF THE PROTECTED PARTIES OR PARTICIPANT, BUT WILL NOT APPLY TO THE EXTENT ANY SUCH INJURY OR DAMAGE IS CAUSED BY THE WILLFUL MISCONDUCT OF THE PROTECTED PARTIES.
7. Dispute Resolution.
A. Arbitration. Any dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this arbitration agreement (Dispute) shall be brought by the parties in their individual capacity and not as a plaintiff or class member in any purported class or representative capacity, and settled by binding arbitration before a single arbitrator administered by the American Arbitration Association (AAA) per its Commercial Industry Arbitration Rules in effect at the time the demand for arbitration is led. Judgment on the arbitration award may be entered in any federal or state court having jurisdiction thereof. No award shall exceed the amount of the claim by either party and the arbitrator shall have no authority to award punitive or exemplary damages. If the Dispute cannot be heard by the AAA for any reason, the Dispute shall be heard by an arbitrator mutually selected by the parties. If the parties cannot agree upon an arbitrator, then either party may petition an appropriate court to appoint an arbitrator. Arbitration shall be subject to 9 U.S.C. § 1 et seq. and Chapter 171 of the Texas Civil Practice and Remedies Code. If either party files suit in violation of this paragraph (except to toll the statute of limitations), such party shall reimburse the other for their costs and expenses, including attorneys’ fees, incurred in seeking abatement of such suit and enforcement of this paragraph.
B. Waiver Of Jury Trial. ADULT PARTICIPANT ON BEHALF OF HIM/HERSELF AND THE CHILD PARTICIPANT AND SPICAR’S MARTIAL ARTS, INC. KNOWINGLY AND VOLUNTARILY, WITH FULL AWARENESS OF THE LEGAL CONSEQUENCES, AGREEs TO WAIVE THEIR RIGHT TO A BENCH TRIAL OR JURY TRIAL OF ANY DISPUTE.
8. Acknowledgments by Participant.
Participant acknowledges on behalf of him/herself and the Child Participant(s) that Participant would not be granted access to the Premises or the ability to participate in the Activities but for these acknowledgments:
• Child Participant(s) and Adult Participant possess a sufficient level of skill and physical fitness for safe participation in the Activities. Participant also agrees to attempt only activities that Participant feels he is capable of performing safely. Further, Participant agrees to stay in areas that will not place Participant in undue danger.
• Neither Adult Participant nor the Child Participant(s) has any health problems that would not allow me to participate in the Activities.
• SMA recommends the Participant receive medical clearance from Participant’s physician prior to participation in the Activities.
• SMA may administer to Participant emergency aid, and/or CPR, when deemed necessary by SMA.
• SMA may secure emergency medical care or transportation (i.e., EMS) when deemed necessary by SMA and Participant shall assume all costs of emergency medical care and transportation.
• It is Participant’s duty to inform SMA and cease participation in the Activities if Participant should feel any unusual discomfort (e.g., faintness, shortness of breath, high anxiety, chest pains).
• SMA may terminate my participation when it determines me to be incapable of safely participating in the Activities.
• Participant agrees to obey all safety rules while participating in the Activities and alert the staff of any rules violations or dangerous behavior.
As the parent or legal guardian of the Child Participant(s), the undersigned represents to the Protected Parties that he has legal capacity and authority to act for and on behalf of the Child Participant(s), and agrees to INDEMNIFY AND DEFEND THE PROTECTED PARTIES FROM AND AGAINST ALL CLAIMS OR LIABILITIES RESULTING FROM OR RELATING TO ANY INSUFFICIENCY OF THE UNDERSIGNED'S LEGAL CAPACITY OR AUTHORITY TO ACT FOR OR ON BEHALF OF THE CHILD PARTICIPANT(S) IN THE EXECUTION OF THIS AGREEMENT.
10. Misc. Terms.
Capitalized terms shall have the meaning set forth herein. This Agreement constitutes the entire agreement between the Protected Parties and the Participant, supersedes any and all previous oral or written promises or agreements, and may only be modified in writing. The Participant further expressly agrees that this Agreement is intended to be as broad and inclusive as is permitted by the laws of Texas and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. Venue for any action brought hereunder or as a result of Participant’s use of the Premises or participation in the Activities shall lie in Tarrant County and only the substantive laws of Texas shall apply. By signing below, Participant authorizes SMA to communicate with Participant via email and social media (Facebook, Twitter, Instagram and others) with updates, news, advertisements, and offers. Wherever any words are used herein in the masculine or feminine gender, they shall be construed as though they were also used in another gender in all cases where they would so apply.
11. Acknowledgment & Understanding.
Participant represents to the Protected Parties that he thoroughly understands this is a complete and final release and indemnity agreement, he is voluntarily entering into this Agreement, and no representations, promises, or statements made by any of the Protected Parties has influenced Participant in signing this Agreement. Participant agrees that there are no oral agreements, representations, promises, or warranties that are not expressly set forth herein and that he is not relying on any statements or representations of the Protected Parties that are not expressly contained herein. Participant acknowledges that he has read this Agreement in its entirety, fully understands its terms, and understands that he is giving up substantial rights herein, including his right to sue. Participant acknowledges that he is signing this Agreement freely and voluntarily, and intends by Participant’s signature, to completely and unconditionally release the Protected Parties from all liability due to ordinary negligence and the inherent risks of the Activities to the greatest extent permitted by the laws of Texas.
12. SMS/MMS Texting & Marketing, Terms and Conditions.
SMA offers subscription text message programs and/or may also use an automatic dialing system to deliver SMS/MMS messages to you. The Federal Communications Commission defines an "automatic telephone dialing system" or autodialer as equipment that has the capacity to store or produce telephone numbers to be called and to call such numbers. 47 C.F.R. § 64.1200. By agreeing and signing below you give your consent to SMA to use an automatic dialing system to deliver text messages to the telephone or cell phone number to which you have provided to SMA. SMA does not have a separate charge for this service; however, message and data rates may apply from your mobile carrier. Subject to the terms and conditions of your mobile carrier, you may receive text messages sent to your mobile phone. You agree and consent to receive recurring autodialed SMS/MMS marketing messages. No purchase required. By agreeing and signing this consent to participate in this program, you approve any such charges from your mobile carrier. Charges for text messages may appear on your mobile phone bill or be deducted from your prepaid balance.
To stop receiving text messages, reply STOP, STOP ALL, END, QUIT, CANCEL, UNSUBSCRIBE to the received message. By enrolling in this subscription program, you consent that following such a request to unsubscribe, you will receive one (1) or more final messages from SMA confirming that you have been inactivated in our system. Following such confirmation messages, no additional text messages will be sent unless you re-activate your subscription.
For good and valuable consideration the receipt of which is hereby acknowledged, Adult Participant on behalf of him/herself and the Child Participant irrevocably grants SMA, and Company's assigns, licensees and successors the right to use all or a portion of my image (including real and personal property owned by me) and name in all forms and media including composite or modified representations for all purposes, including advertising, trade or any commercial purpose throughout the world and in perpetuity. ADULT PARTICIPANT ON BEHALF OF HIM/HERSELF AND THE CHILD PARTICIPANT WAIVES THE RIGHT TO INSPECT OR APPROVE VERSIONS OF IMAGES USED FOR PUBLICATION OR THE WRITTEN COPY THAT MAY BE USED IN CONNECTION WITH THE IMAGES. ADULT PARTICIPANT ON BEHALF OF HIM/HERSELF AND THE CHILD PARTICIPANT RELEASE COMPANY AND COMPANY'S ASSIGNS, LICENSEES AND SUCCESSORS FROM ANY CLAIMS THAT MAY ARISE REGARDING THE USE OF MY STATEMENTS OR IMAGES INCLUDING ANY CLAIMS OF DEFAMATION, INVASION OF PRIVACY, OR INFRINGEMENT OF MORAL RIGHTS, RIGHTS OF PUBLICITY OR COPYRIGHT. Company is permitted, although not obligated, to include my name as a credit in connection with the image. Company is not obligated to utilize any of the rights granted in this Agreement.