This Release of Liability, Assumption of Risk, and Indemnity Agreement (“Agreement”) is entered by and between Neurologic Relief Center LLC dba the Spero Clinic, an Arkansas limited liability company (“Spero”) and the undersigned (“Patient”) (collectively the “Parties” or individually a “Party”) on the date noted below.
This Agreement is made for the reasons and on the terms as set forth herein.
1. Subject and Purpose. The Parties desire to enter into this Agreement to set forth their complete understanding as to the complete release and indemnification of Spero (the “Releasee”) by the Patient (“Releasor”).
2. Release and Indemnification. For good and valuable consideration, Releasor irrevocably agrees to release, hold harmless and indemnify Releasee from any and all Claims (as defined in subparagraph 19.1) and Indemnified Costs (as defined in subparagraph 19.2) that Releasee may incur arising out of the treatment of Releasor by neuromuscular re-education (“Treatment”).
3. Assumption of Risk. Releasor acknowledges that the Treatment involves a certain
level of exercise. Releasor further acknowledges that any level of exercise or rehabilitation carries an inherent risk of injury or death despite all safety precautions, especially if a prior injury exists. Releasor fully accepts and assumes the liability for any and all such risks, whether known or unknown, without limitation. Releasor further acknowledges that the Treatment may not cure or alleviate the condition or illness that prompted Releasor to seek treatment from Releasee.
4. Voluntary. Releasor acknowledges that participation in theTreatment and execution
of this Agreement is voluntary.
5. Period Covered. This Agreement will cover all past, present and future Claims and
Indemnified Costs.
6. No Limitation on Amount of Liability Indemnified Against. Releasor agrees to
indemnify Releasee for any and all Indemnified Costs and no limitation on the amount of such Indemnified Costs will be effective.
7. Governing Law. This Agreement will be governed by the laws of the State of Arkansas.
8. Binding Effect. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the Releasor and Releasee.
9. Assignment. The rights and obligations under this Agreement are effective only with respect to the Releasee and Releasor and shall not be assignable, delegable, assumable, or otherwise transferable by Releasor. No purported transfer of this Agreement by Releasor shall ever release a Releasor of any of its obligations under this Agreement. Any Releasee may assign, delegate, participate, transfer all or any part of its rights and obligations under this Agreement without notice to Releasor.
10. Severability. Each provision of this Agreement is severable from all other provisions of this Agreement. If any Governmental Authority determines any provision of this Agreement invalid or unenforceable, the provision shall be deemed modified to the extent necessary to render it valid and enforceable, and all remaining provisions of this Agreement shall remain in full force and effect.
11. Waivers. The failure of any person to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
13. Entire Agreement. This Agreement contains the entire agreement among Releasee and Releasor and no other oral or written agreement shall be binding upon Releasee or any Releasor. No Releasor has been unduly influenced to enter into this Agreement or relied on any representation of Releasee except for those representations set forth in this Agreement. This Agreement supersedes all prior agreements, contracts, and understandings of any kind between Releasor and Releasee, either oral or written. No amendment or modification of this Agreement shall be effective except upon the unanimous written consent of the Releasor and Releasee.
14. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELEASOR AND RELEASEE IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS CONTEMPLATED HEREIN.
15. Confidentiality. Releasor agrees that any negotiations or discussions leading up to this Agreement as well as the individual terms set forth are to be treated as confidential information. Releasor agrees not to take any action that could injure or interfere with the current business relationship of the Releasee nor shall Releasor say, publish or cause to be published, disseminate, or otherwise communicate, directly or indirectly, in whole or in part, at any time or in any manner, anything that casts Releasee in an unfavorable light, or disparage or injure Releasee’s good will, business reputation or relationship with any person or business.
16. Advice of Counsel. The Parties to this Agreement represent that prior to the execution of this Agreement, they have had the opportunity to (1) review this Agreement, including all attachments, and (2) consult with and receive the advice of qualified legal counsel on the ramifications of this Agreement.
17. Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa. Use of the word “person” refers to both natural persons (i.e. individuals) and artificial persons (e.g. corporations, partnerships, etc.) as appropriate to the context. The generic use of an uncapitalized word or phrase includes within that use in proper context a defined word or phrase that is noted by capitalization. For example, reference to “releasor”includes and refers to the Releasor. A reference to a “part” or “portion” of something includes “all” of it. Use of the word “includes” or a derivative of it is not used in the limitation sense. Headings are for convenience, are not part of this Agreement and cannot be used in a construction of it.
18. Mediation and Arbitration. All disputes and controversies between the parties hereto arising out of or in connection with this Agreement shall be submitted to non-binding mediation first and if this mediation does not produce a settlement agreeable to the parties, then such disputes and controversies shall be submitted to arbitration.
18.1. Mediation. Mediation will be conducted pursuant to the following procedure:
(A) The opposing parties will attempt to select a mutually satisfactory mediator.
If they cannot agree on a mediator within fifteen (15) days after the
unresolved dispute arises, the opposing parties will submit a panel of seven
persons as proposed mediators. Names will be stricken from the list of the
panel alternatively by the opposing parties (with the order of striking
determined by lot) until only one name remains and that remaining person
will become the mediator.
(B) The mediator will render his decision within thirty (30) days after the close
of the hearing or thirty (30) days after the brief filing date, whichever is later.
(C) The mediator will have no power to add to or to subtract from or modify any
of the terms of this Agreement or any agreement made supplementary hereto.
(D) The mediator will decide only the issues presented by the dispute and will not
have the right to decide any other issues unless all parties involved in the
dispute agree otherwise.
(E) Neither the opposing parties nor the mediator may disclose the existence,
content, or results of any mediation without the prior written consent of the
opposing parties.
(F) Each opposing party will bear his own costs and expenses and will pay onehalf
of the mediator's fee and one-half of the administrative fees of mediation
unless there are more than two opposing parties in which event the mediator's
fee and the administrative fees of mediation will be shared equally by the opposing
parties.
18.2 Arbitration. Arbitration will be conducted pursuant to the following procedure:
(A) The opposing parties will attempt to select a mutually satisfactory arbitrator.
If they cannot agree on an arbitrator within fifteen (15) days after the
unresolved dispute arises, the American Arbitration Association will be
requested to submit a panel of seven persons, each qualified to serve as
arbitrator. Names will be stricken from the list of the panel alternatively by
the opposing parties (with the order of striking determined by lot) until only
one name remains and that remaining person will become the arbitrator.
(B) The arbitrator will render his decision within 30 days after the close of the
hearing or 30 days after the brief filing date, whichever is later. The decision
of the arbitrator will be final and binding and judgment on the award rendered
by the arbitrator may be entered in any court having jurisdiction.
(C) The arbitrator will have no power to add to or to subtract from or modify any
of the terms of this Agreement or any agreement made supplementary hereto.
(D) The arbitrator will decide only the issues presented by the dispute and will
not have the right to decide any other issues unless all parties involved in the
dispute agree otherwise.
(E) Neither the opposing parties nor the arbitrator may disclose the existence,
content, or results of any arbitration without the prior written consent of the
opposing parties.
(F) Each opposing party will bear his own costs and expenses and will pay onehalf
of the arbitrator's fee and one-half of the administrative fees of
arbitration unless there are more than two opposing parties in which event the
arbitrator's fee and the administrative fees of arbitration will be shared
equally by the opposing parties.
19. Definitions.
19.1. Claims. As used in this Agreement, the term “Claims” includes but is not limited to any and all direct or indirect demands, claims, losses, causes of action, suits, damages, obligations, responsibilities, judgments, and liabilities of any kind or character for personal injury, death, property damage, or any other tortuous injury and any violations of any applicable law, rules, regulations, orders or any other legal right or duty actionable at law or in equity.
19.2. Indemnified Costs. As used in this Agreement, the term “Indemnified Costs” includes and is not limited to any expense, attorney fees, accountant fees, expert witness fees, court filing fees, process server fees, telephone charges, photocopy costs, printing costs, cost incurred for preparing or purchasing litigation exhibits, postal or other parcel delivery charges, courier charges, travel expenses relating to litigation, other litigation expense or cost, any other cost, expense, liability, or damage of any type Releasee incurs related to the treatment of the Patient. Indemnified Costs will also include, damages awarded as a consequence of litigation, any amount reached in a settlement of or to avoid litigation, resulting from healthcare treatment of Patient by Releasee, and damages asserted or that could have been asserted prior to the execution of this Agreement.
19.3. Releasor. As used in this Agreement, the term “Releasor” includes any prior, current, or successor affiliates, associates, advisors, managers, members, officers, employees, owners, shareholders, partners, parent corporations or companies, subsidiaries, independent contractors or agents of the Releasor.
19.4. Releasee. As used in this Agreement, the term “Releasee” includes any prior, current, or successor affiliates, associates, advisors, managers, members, officers, employees, owners, shareholders, partners, parent corporations or companies, subsidiaries, independent contractors or agents of Releasee.
19.5. Governmental Authority. The term “Governmental Authority” means and refers to any federal, state, or local governmental body, whether executive, legislative, or judicial, and any agency or department thereof.
20. Agreement Effect. The release and indemnity granted under this Agreement will be in addition to any and all rights to indemnity implied by law.