Release and Waiver of Liability Agreement
WHEREAS TM Swim Enterprise, LLC ("Company") is the operator/sponsor of the activity (the "Activity"), described as swimming instruction classes, and is willing to permit the individuals (the "Participants") signing this Agreement to participate in the Activity, upon the terms and conditions of this Agreement. The Company and Participants may be collectively referred to as (the "Parties") and the premises or location of the Activity may be referred to as (the "Premises").
For good and valuable consideration, including but not limited to being provided access to the premises and participation in the Activity, the undersigned, on behalf of themselves and any minor children named below, hereby stipulate and agree:
1. Assumption of Risk. I understand and acknowledge that the Activity I want to participate in may be dangerous and may involve the risk that I will sustain serious injury, temporary or permanent disability, death, and/or property damage. I understand that my participation in the Activity or my being on the Premises may not be supervised and that the Company does not provide medical services. I further acknowledge that any exposure I may sustain while participating in the Activity or while on the Premises may be compounded by negligent or delayed medical service or negligent or delayed assistance by the Company. I VOLUNTARILY AND FREELY ASSUME ALL RISKS AND DANGERS THAT MAY OCCUR PURSUANT TO MY PARTICIPATION IN THE ACTIVITY OR USE OF THE PREMISES, INCLUDING THE RISK OF INJURY, DEATH, OR PROPERTY DAMAGE, EVEN IF CAUSED BY NEGLIGENCE OF THE COMPANY.
2. Representation of Authority. If I am signing this Release and Waiver of Liability agreement on behalf of a minor, I hereby represent and warrant that I am the legal parent or guardian of the minor participant(s) named herein and have full legal authority to execute this release on their behalf.
3. Use of Premises for Activity Only. I understand and agree that I may only use the Premises for the Activity set forth in this Release and Waiver of Liability agreement. I further agree that I am responsible for the proper use and care of the Premises and any of Company's property thereon, and that I will be liable for the replacement cost of any Company property which is damaged, destroyed or lost.
4. Release from Liability. I hereby agree, on behalf of myself, my heirs and my personal representatives, to fully and forever discharge and release Company and its affiliates, and their respective partners, owners, agents, operators, managers, employees, and representatives (“Released Parties”) from any and all claims I may have or hereinafter have for any injury, temporary or permanent disability, death, damages, liabilities, expenses and/or causes of action, now known or hereinafter known in any jurisdiction in the world, attributable or relating in any manner to my participation in the Activity and my presence on the Premises, whether caused by the negligence of the Company or any of the Released Parties or by any other reason. I acknowledge and agree that this Release and Waiver of Liability for Service Providers is intended to be, and is, a complete release, as much as allowed by law, of any responsibility of the Released Parties for all personal injuries, temporary or permanent disability, death, and/or property damage sustained by me while on or using the Premises or participating in the Activity on the Premises.
5. Covenant Not to Sue. I agree, for myself and all my heirs, not to sue the Released Parties or initiate or assist in the prosecution of any claim for damages or cause of action against the Released Parties which I or my heirs may have as a result of any personal injury, death or property damage I may sustain while on or using the Premises or while participating in the Activity.
6. Indemnification. I hereby agree to defend, indemnify and hold harmless Company and the Released Parties from and against any third-party losses, damages, actions, suits, claims, judgments, settlements, awards, interest, penalties, expenses (including reasonable attorneys' fees) and costs of any kind for any infection, illness, personal injury, loss of life or damage to property sustained by reason of or arising out of my participation in the Activity and/or being on the Premises.
7. Medical Treatment Release. I hereby authorize the Company to secure, and I consent to, any medical treatment that may be given to me should the Company determine, in its sole discretion, that I need medical care, as a result of my participation in the Activity and being on the Premises. I accept full responsibility for all costs related to my medical treatment, including any transport costs, and I release all Parties involved from any type of liability for anything that may happen during my treatment or transport.
8. Responsibility for Personal Property. I acknowledge and agree that I am fully and solely responsible for any of my property and personal belongings that I bring onto the Premises or that I use during the Activity, and that the Company will not be responsible for or provide any security for my property and personal belongings.
9. No Representations by Company. I acknowledge that Company makes no representation as to the condition of the Premises or the safety of the Activity. I acknowledge that the Company makes no representations that they have taken any safety precautions that relate to infectious diseases or exposure, and even if Company did proactively take preventative measures, the Company has made no representation that those measures will in any way reduce or prevent the risks associated with exposure. The Company further makes no representations that any safety measures taken were done properly and I accept that those efforts may have been done with negligence. I accept and shall use the Premises, and its equipment, in its "AS IS" condition. I acknowledge and agree that I am not relying upon any representation or statement by the Company or the Company's employees, agents, sponsors, or representatives regarding this Agreement or the Premises or the Activity, except to the extent such representations are expressly set forth in this Agreement.
10. Personal Representations & Warranties. I represent and warrant that I will comply with all directives given by the Company, whether in print or orally, in all matters, including any that relate to the Activity. I represent that I, or any minor on whose behalf I am signing this Release and Waiver of Liability agreement, have no medical conditions that may prevent or limit my (or the minor’s) full participation in the Activity, nor have I been advised by a medical professional to abstain from or limit my (or my minor’s) participation in the Activity.
11. Governing Law, Venue and Jury Waiver. This Release and Waiver of Liability agreement will be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law of such state. I agree that any action arising out of this Release and Waiver of Liability Agreement must be brought exclusively in any state or federal court located in New York County, New York. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
12. Waiver. No waiver of any term or right in this Release and Waiver of Liability agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of any party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
13. Survival. Any provision of this Release and Waiver of Liability agreement providing for performance by either party after termination of this Agreement shall survive such termination and shall continue to be effective and enforceable.
14. Compliance with Laws. In the performance of the terms of this Release and Waiver of Liability agreement and participation in the Activity and use of the Premises, the Parties shall comply with all applicable federal, state, regional and local laws, rules and regulations.
15. Severability. If any provision or portion of this Release and Waiver of Liability agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
16. Entire Agreement; Modification; Binding Effect. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to this Agreement shall be valid unless in writing and signed by authorized representatives of the Parties. This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the Parties.
I HEREBY ACKNOWLEDGE THAT I HAVE FULLY READ AND UNDERSTAND EACH OF THE ABOVE PROVISIONS AND THAT I UNDERSTAND I AM GIVING UP SIGNIFICANT LEGAL RIGHTS ON MINE, INCLUDING THE RIGHT TO SUE THE COMPANY. I ACKNOWLEDGE THAT PRIOR TO SIGNING THIS AGREEMENT I HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY TO REVIEW THIS AGREEMENT. I AM AT LEAST EIGHTEEN (18) YEARS OF AGE AND FULLY COMPETENT, AND I EXECUTE THIS AGREEMENT VOLUNTARILY AND FOR ADEQUATE CONSIDERATION INTENDING TO BE FULLY BOUND.