Echo Sports Training, LLC
FULL WAIVER AND RELEASE
PARTICIPATION AGREEMENT ~
INHERENTLY RISKY RECREATIONAL ACTIVITY ~
PARTICIPATE IN ATHLETIC SPORTS TRAINING AT YOUR OWN RISK
THIS PARTICIPATION AGREEMENT ("Agreement") is made and is effective as of the last date executed (hereinafter the "Effective Date") by and between Echo Sports Training, LLC (hereinafter "Echo") and the adult or guardian identified (hereinafter "Adult"), who is executing this Participation Agreement personally, and on behalf of themselves and any minor children specified herein (the Adult and any minor children are collectively referred to hereinafter as the "Participants"). Echo and Participants are collectively referred to hereinafter as the "Parties."
WHEREAS, Echo owns and/or operates a recreational sports training business in Bozeman, Montana (hereinafter the "Sports training facility"); and
WHEREAS, Echo makes the recreational sports training available to customers, not as a service to the general public; and WHEREAS, Participants desire to participate in ALL the trecreational activities available at the sports training facility and premises; and
WHEREAS, Participants know, understand and acknowledge that participation in ANY of the recreational activities available at the facility and with trainers is purely voluntary, not essential or necessary, and intended solely for physical fitness and recreational enjoyment; and
WHEREAS, Participants know, understand and acknowledge that the use of fitness supplies and sports equipment, and the indoor/outdoor space constitutes activity that is or can be inherently risky - it can result in serious injury to participants and injury to third parties; and
WHEREAS, Echo will not make the sports training, equipment or facility available to Participants unless Participants are willing to take personal responsibility for any and all potential injuries to Participants or potential damage to Participants’ property, that may or could result from Participants' voluntary participation in ALL the recreational activities or fitness activities available by or through Echo Sports.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual covenants, conditions, representations, and agreements contained herein, as well as the cost of participation or admission to the sports training facility, the Parties hereby agree as follows:
1. Waiver and Release of Liability
Whether using equipment and/or the facilities or not, all Participants, on behalf of themselves, and their spouses, children/wards, heirs, assigns, attorneys, insurers, and all other persons, firms, or entities connected therewith (collectively referred to hereinafter as the "Releasing Parties"), forever, finally, fully, permanently and unconditionally waive, release, acquit and discharge Echo Sports training, LLC, and its present and former employees, owners, members, principals, directors, subsidiaries, affiliates, representatives, predecessors, successors, shareholders, partners, officers, agents, assigns, servants, attorneys, insurers, suppliers, manufacturers, clients, customers, participants, and all other persons, firms, partnerships or corporations connected therewith (collectively referred to hereinafter as the "Released Parties"), to the fullest extent permitted by law, from any and all charges, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' engagement or participation in sports training equipment, fitness activities related thereto, and equipment used therewith, and any claims for costs, expenses and attorneys' and expert fees associated therewith.
2. Assumption of Risk
Releasing Parties (Participants) know, understand and acknowledge that participation in and use of sports training and fitness equipment, as well as the facilities, constitutes an inherently risky recreational activity that may result in serious injury, injury to third parties, and damage to property. Releasing Parties (Participants) know, understand and acknowledge that sports training activities can test a person’s physical and mental limits and carry with it
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serious risks. These risks include but are not limited to overexertion/exhaustion; heatstroke; slipping/falling; injuries to the lower body; injuries to the hand, fingers, head, face, and teeth; knee injuries; overuse injuries; sprains; strains; fractures; and potential collisions with other people or with sharp, heavy, or blunt objects. Releasing Parties hereby assume the risks - both known and unknown - of personal injury or death, injury to third parties, and damage to property that arise out of or relate in any way to Participants' past, present or future use of the sports training, equipment, obstacle courses, training facility and premises.
3. Indemnification
To the fullest extent allowed by law, the Releasing Parties hereby indemnify and covenant to hold harmless and defend Released Parties from any and all charges, passive and active negligence, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' use of the sports training equipment and any of the sports training facility and premises, or based on or arising out of any breach of this Agreement, its covenants, representations, or warranties by the Releasing Parties, and any claims for costs, expenses and attorneys'/expert fees associated therewith.
4. Fitness to Participate
Participants represent that they: (i) Are in good health and proper physical condition to participate in ALL activities on the sports training premises;
(ii) Are NOT under the influence of alcohol, illicit drugs, prescription drugs, or mind-altering substances that would in any way impair their ability to safely participate in any activity on the sports training premises; (iii) Do NOT have ANY preexisting conditions which would make Participants unfit to participate in ANY activity at the sports training premises. It is the sole responsibility of all Participants to determine sufficiency of their own health, fitness, and ability to participate in ANY activities in or on the sports training premises.
5. Covenant Not to Sue
Releasing Parties hereby covenant not to sue Released Parties on account of any and all charges, claims, debts, disputes, demands, suits, causes
of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants' use of the sports training equipment and at the sports training facility and premises, and any claims for costs, expenses and attorneys' fees associated therewith.
6. Representations, Warranties, and Further Assurances
The Adult/Guardian named above represents and warrants that they were given ample opportunity to read and review this Participation Agreement. The Adult/Guardian further represents and warrants that she/he is the parent or legal guardian of all Minor Participants identified herein; that they have the right to execute this waiver on behalf of the Minor Participants identified; and that she/he has and will maintain adequate medical and dental insurance to cover and pay for any possible injuries that may occur to Minor Participants and/or third parties that arise out of or relate in any way to Participants' use of the sports training equipment, obstacle course, or the premises of the sports training facility and premises. Participants further represent and warrant that they HAVE read and MUST follow the rules of the sports training and its facility rules and will cause other Participants (including minor children) to follow such rules, including without limitation the safety video rules, rules conveyed orally, and any rules posted on signs within the sports training facility and premises.
7. Integration
This Participation Agreement constitutes the entire and only agreement and understanding between the Parties with respect to the subject matter hereof and may not be altered, enlarged, or abridged except by an agreement in writing executed by all of the Parties hereto.
8. Binding Nature of this Participation Agreement
The provisions of this Participation Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective successors and assigns.
9. Severability
All the provisions of this Participation Agreement shall be considered as separate terms and conditions. In the event that any provision hereof is determined to be invalid, prohibited, or unenforceable by a court or other body of competent jurisdiction, this Participation Agreement shall be construed as if such invalid, prohibited, or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited, or unenforceable. Notwithstanding the foregoing two sentences, in the event that any of the provisions of this Participation Agreement should be determined to be invalid, prohibited or unenforceable, the validity, legality and enforceability of the remaining provisions contained in this Participation Agreement shall not in any way be affected or impaired thereby.
10. Choice of Law and Jurisdiction
This Participation Agreement shall be governed by and construed in accordance with the laws of the State of Montana without regard to any conflict
of law rules of another state. Releasing Parties explicitly know, understand and acknowledge that the laws of the State of Montana may be more likely
to recognize the validity and enforceability of the terms of this Participation Agreement-and particularly the parental waiver and indemnification provisions-than the laws of the other states (including the state where the sports training facility and premises is located and/or the Releasing Parties reside). In executing this Participation Agreement, Releasing Parties' expressly intend and desire for the substantive laws of the State of Montana to govern the validity and enforceability of this Participation Agreement.
11. Mediation and Arbitration
Any and all disputes, claims, or controversies arising out of or relating in any way to this Agreement, including but not limited to Participants' use of the sports training equipment, the obstacle course or premises at the sports training facility and premises shall be submitted to a formal mediation using a mediator, or a comparative impartial third party, either appointed by the American Arbitration Association or any other mediator to which the Parties agree in writing. Mediation must commence within any applicable statute of limitations, and shall be deemed to commence when a Party notifies the agreed- upon mediator, in writing, of its request for mediation, the subject of the dispute, and the relief requested. Mediation shall be deemed to be in the nature of settlement negotiations and any dispute not otherwise satisfactorily resolved shall be subject to mandatory, final and binding arbitration. Either Party may initiate arbitration with respect to the matters submitted to mediation by notifying the other Party, in writing and within ten days after the mediation is concluded, of its demand for arbitration. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. Any mediation and arbitration shall be conducted in Montana. Similar to a judge or jury, an arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, however the scope and rules of arbitration differ, and review is limited. Arbitration shall be the sole and exclusive forum for resolution of the dispute, claim or controversy, and the award shall be in writing, state the reasons for the award, and be final and binding. Judgment thereon may then be entered in any court of competent jurisdiction. By signing this Agreement, the Participants, to the fullest extent permitted by law, agree to this Section 11 and agree to settle disputes only by mediation and/or arbitration. Participants thereby waive their right to seek relief in a court of law and have any and all claims decided by a jury or a judge, or to maintain other available court action or administrative proceedings to settle Participants’ disputes.
12. Attorney Fees for Breach of this Participation Agreement
In the event either Party hereto defaults in any of the covenants or agreements contained herein, including without limitation the eleventh clause, the non-prevailing Party shall pay all costs and expenses, including reasonable attorneys' fees and expert fees, incurred by the prevailing Party as a result of this default.
13. Acknowledgment of the Rules
All participants MUST READ, UNDERSTAND and FOLLOW all Echo Sports training, LLC rules, including facility-use rules. By signing this Agreement you are representing and warranting that you have READ, UNDERSTAND and WILL FOLLOW ALL RULES.
14. Video, Photo, and Image Release
The Agreement gives Echo the exclusive rights and permissions to use media captured in sports training for marketing purposes, including footage, photos, and video, which can be used for any and all purposes including but not limited to publication in both printed and electronic media, Internet, websites, advertisement, and other promotional uses.
15. Subsequent Training and Camp Visits
This Agreement shall apply to ALL of Participants’ future visits to Echo Sports training, LLC and participation in training with Echo Sports.