ASSUMPTION OF RISK, WAIVER OF LIABILITY AGREEMENT, AND PHOTO RELEASE
The PlayGarten Movement Camp
Please read this entire Assumption of Risk, Waiver of Liability and Release Agreement (hereafter "Document" or “Release”) carefully before signing. All adult participants must sign this Document. A parent or legal guardian (hereafter collectively "Participant Representative") must sign if the participant is under 18 yrs. of age (hereafter sometimes "minor" or "child"). The undersigned understands that in the online registration process, the undersigned’s agreement to (and digital signature on) this Document will apply to the undersigned’s participating child or children, and that the undersigned may sign the Document more than once if the undersigned registers their child or children for different programs at different points in time. In consideration of the services of The PlayGarten, LLC, and its owners, officers, directors, employees, agents, representatives, contractors and all other persons or entities associated with it (individually and collectively referred to in this Document as "PlayGarten"), the undersigned (adult participant or parent of a minor participant), acknowledges and agrees as follows:
In consideration for being permitted to participate in activities offered by The PlayGarten, located within the Bluebird Market Hall in Silverthorne, Colorado (the “Premises”), including but not limited to, the use of a playground, open turf space, interactive sports wall (i.e. Multi-Ball), and any other activities (the “Activity” or “Activities”, as further described below), I, the undersigned (“Participant Representative”), on behalf of myself, and my minor children, those whom I am a legal guardian, and assigns, if any (“Participant(s)” or child or minors), agree to all the terms and conditions set forth in this Release. The PlayGarten and Participant Representative are collectively referred to as the “Parties”, or individually as a “Party”.
1. Representations of Participants. Participant Representative acknowledges, agrees or represents: (a) that Participant(s) are in good health and in physical condition to participate in the Activities that The PlayGarten provides on the Premises; (b) that during the Activities the Participant(s) will not be under the influence of excessive alcohol or any illicit or prescription drugs that would in any way impair Participant(s) ability to safely participate in Activities; (c) that Participant(s) have not been advised against any Activities by a health professional; (d) that Participant(s) are under no obligation to participate in any Activities against their will; (e) that Participant(s) are familiar with and will abide by the rules established for the Activities, which include without limitation the rules posted by The PlayGarten at the Premises or the related website; (j) that Participant(s) accept sole responsibility for their conduct and actions while participating in the Activities, (k) that in the event of an injury to Participant(s), Participant Representative will immediately notify The PlayGarten in order to provide The PlayGarten with an opportunity to investigate or evaluate the cause of the injury. Participant Representative agrees that failure to do so will severely prejudice the Released Parties.
2. Acknowledgement and Assumption of Risk. Participating (whether simply attending, observing or actively participating) in The PlayGarten educational, instructional, and/or recreational activities include risks. These Activities can be day or multi-day, take place indoors or outdoors, be located on public and/or private land inside or outside the Premises and may include, but are not limited to: climbing on artificial play structures; play gym course activities; sports and games; and use of any equipment, facilities or premises (collectively referred to in this Document as "Activities"). Activities may be scheduled or unscheduled; structured or unstructured; led by The PlayGarten staff or contractors and/or occur during Participant's free and/or independent time. Participant Representative acknowledges that the inherent and other risks, hazards and dangers (collectively referred to in this Document as "Risks") of these Activities can cause injury, damage, death or other loss to Participant or others. The Participant Representative gives permission for their child or minor to participate in all Activities (unless otherwise designated during the registration process), and agrees to discuss the nature of these Activities and risks with their child or minor. The following describes some but not all of those Risks:
· Physical activity risks: Activities vary, but can include lifting, climbing, carrying weight and frequent and sustained use of a Participant's arms and legs.
· Risks involved in any adventure or athletic activity: These Risks include the risk that a Participant may overestimate his/her abilities or fitness; be inattentive; lose control and trip or fall and/or collide with, for example, others, the ground, or other hazards; not understand the functioning of (or misuse) the equipment; fail to negotiate steep, uneven or difficult terrain; not control his/her speed or experience an equipment malfunction.
· Climbing risks: Climbing on artificial terrain or play equipment includes risks such as the possibility of slipping and falling, rope burns, being impacted by a falling object or impacting a stationary object or the ground.
· Risks in judgment and decision making: These risks include the risk that the Participant or a co-Participant, The PlayGarten staff member, contractor or other person may misjudge the Participant's (or others) capabilities, health or physical condition, or misjudge some aspect of instruction, medical treatment, weather, environment, or other issue.
· Personal health and participation risks: The Risk that Participant's mental, physical or emotional condition/s or limitation/s (known or unknown, disclosed or undisclosed) combined with participation in these activities could result in injury, damage, death or other loss. Although The PlayGarten staff may review Participant's submitted health information, The PlayGarten cannot anticipate or eliminate risks or complications posed by Participant's mental, physical (including fitness level) or emotional condition/s.
· Equipment risks: There is the Risk that equipment used in an Activity may be misused or may break, fail or malfunction. The PlayGarten may require safety gear for some activities or require Participants to follow specific rules to engage in an Activity. Safety gear may prevent or lessen injuries in some instances; however, use of safety gear is not a guarantee of safety, and injury can occur even with the use of this gear. Failure of Participants to follow rules or instructions or policies of The PlayGarten may also result in injury and Participant Representative understands and acknowledges that Participant will be one of many other participants with limited supervision at various times throughout the time Participant is on the Premises.
· Risks regarding conduct: Risks include the potential that the Participant, or other participants or third parties may act carelessly or recklessly.
These and other risks may result in Participants: falling partway or falling to the ground; being struck; colliding with or impacting objects, the climbing surface or people; reacting negatively to increased exertion; suffering gastro-intestinal complications or allergic reactions or experiencing other problems. These and other circumstances may cause dehydration, broken bones, paralysis or other permanent disability, mental or emotional trauma, concussions, skin burns, infections, abrasions, wounds or other injury, damage, death or loss.
Personal Representative, on behalf of Participant(s), understands and acknowledges that participation in the Activities is voluntary and such Activities are dangerous and entail both known and unknown inherent risks, including the risk of bodily injury, exposure to bacteria and viruses (including, but not limited to MRSA, influenza, and COVID-19), temporary or permanent disability, paralysis, or even death, as well as property damage. Such risks and dangers may be caused by Participant(s)’ own actions or inactions, the actions or inactions of other persons participating in the Activities, the negligence of the Released Parties, and/or arising from, but not limited to, equipment malfunctions; defective designs of equipment, negligent equipment maintenance, building malfunctions; lack of supervision; lack of proper equipment or padding, netting, or other safety measures; slipping; falling; landing; or colliding with fixed objects or other people; loss or theft of personal property at the Premises . Participant Representative also acknowledges that any injuries Participant(s) sustain may be compounded or increased by negligent or delayed rescue operations or procedures of the Released Parties. Participant further acknowledges there may be other risks and economic losses, which may be known to Participant or may be unforeseeable, that are presented by participation in the Activities. Participant Representative on behalf of Participant(s), VOLUNTARILY AND FREELY ASSUMES ALL RISKS AND DANGERS THAT MAY OCCUR PURSUANT TO ENTRY ONTO THE PREMESIS AND PARTICIPATION IN THE ACTIVITES OFFERED BY THE PLAYGARTEN, INCLUDING THE RISK OF INJURY, DEATH, OR PROPERTY DAMAGE.
3. Release from Liability. Despite all known and unknown risks, Participant Representative on behalf Participant(s), hereby expressly, unconditionally and voluntarily releases, waives, and forever discharge any and all claims Participant(s) may have or hereinafter have for any bodily injury, exposure to bacteria and viruses (including, but not limited to MRSA, influenza, and COVID-19), temporary or permanent disability, paralysis, death, damages, liabilities, expenses, costs, and causes of actions, now known or hereinafter known in any jurisdiction, attributable or relating in any manner to Participant(s)’ entry upon the Premises or during participation in Activities, whether caused by the negligence of the Released Parties, or by any other reason. Participant Representative acknowledges and agrees that this Release is intended to be, and is, a complete release of any responsibility of the Released Parties for any and all personal injuries, temporary or permanent disability, death, and property damage sustained by the Participant(s) while on the Premises or in any way the Activities.
4. Covenant Not to Sue. Participant Representative agrees, on behalf of Participant(s) and all of Participant(s)’ heirs and assigns, not to sue The PlayGarten, its officers, directors, manager(s), employees, agents, affiliates, shareholders/members, landlord(s), lenders, successors, assigns, and the owner of the Bluebird Market Hall (the “Released Parties”), or initiate or assist in the prosecution of any claim for damages or cause of action against the Released Parties, which Participant or heirs or assigns may have as a result of any personal injury, death or property damage related to this Release or sustained while on the Premises or participating in Activities.
5. Indemnification. To the fullest extent permitted by law, Participant Representative hereby agrees to defend, indemnify and hold harmless the Released Parties from and against any third party losses, damages, loss, actions, suits, claims, judgments, settlements, awards, interest, penalties, expenses (including reasonable attorney’s fees) and costs of any kind arising from any personal injury, death, or property damage sustained by reason of Participant(s)’ participation in any Activities in or Participant’s use of the Premises, whether caused by the negligence of Released Parties or otherwise.
6. No Duty to Supervise. Participant Representative acknowledges and agrees that they are aware that the Released Parties have no duty to supervise the Activities of any Participant(s), spectator, or any other person within the Premises. The Released Parties assume no responsibility or liability for the acts and omissions of any such persons.
7. Liability for Personal Property. Participant Representative agrees that Released Parties are not liable to Participant(s) for any personal property that is damaged, lost, or stolen while on or about the Premises including, but not limited to, a vehicle or its content or any property in a locker or otherwise, whether caused by the negligence of the Released Parties or otherwise.
8. Governing Law and Venue. This Release will be governed by and interpreted in accordance with the laws of the State of Colorado, without giving effect to the principles of conflicts of law of such state. Participant agrees that any action arising out of this Release must be brought exclusively in any state court located in Summit County, Colorado or federal court located in Colorado.
9. Waiver. No waiver of any term or right in this Release 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.
10. Compliance with Laws. In the performance of the terms of this Release, use of the Premises and participation in the Activities, the Parties shall comply with all applicable federal, state, regional and local laws, rules and regulations.
11. Severability. If any provision or portion of this Release 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.
12. Term of Agreement. Participant Representative understands and agrees that this Release extends perpetually and will have full force and legal effect indefinitely.
13. Mediation and Arbitration. If a dispute arises out of or relates to this Release or any Activities or incidents that occur while on the Premises, and if the dispute cannot be settled through direct negotiations between the Participant Representative and The PlayGarten, the Parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association (the “AAA”) under its Commercial Mediation Procedures available at http://www.adr.org before resorting to binding arbitration. If all claims or disputes are not resolved within 30 days of commencing mediation, either Party may refer remaining claims or disputes to binding arbitration in accordance with this section. Thereafter, any unresolved claims shall be submitted to binding arbitration administered by the AAA in accordance with its binding Consumer Arbitration Rules. The arbitration shall be governed by the laws of the State of Colorado. In-person hearings will take place in Summit County, Colorado or in another location as agreed to by the Parties. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. The Parties agree to mediation and binding arbitration of any and all claims, disputes and grievances, not otherwise excepted herein, arising out of or relating to this Release, the participation in any Activities while on the Premises, and while using any items purchased in or about the Premises, as well as the installation, design, construction, and condition of the Premises. The Parties further agree to submit to binding arbitration the issues of substantive and procedural arbitrability, including defenses to arbitration and all disputes regarding the enforceability, interpretation, breadth, scope and meaning of this Release. Any award rendered through arbitration will be in writing with written findings of fact and shall be final and binding on the parties, and the judgment may be entered by any court of competent jurisdiction. The Parties reserve their rights to resolve disputes involving less than $7,500 in an applicable small claims court in Summit County, Colorado, but only if such claims are within the scope of the small claims’ jurisdiction. Mediation between the parties is not required for claims involving less than $7,500 brought in a small claims court located in Summit County, Colorado.
14. Entire Agreement. This Release 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 both Parties. This agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the Parties.
15. Photo Release. Participant Representative, on behalf of Participants, hereby grants to The PlayGarten the irrevocable right and permission to photograph and/or record Participant(s) during participation in Activities and while on the Premises and use images and videos of Participant(s)’ faces, likeness, voice and appearance in such photographs or recordings in connection with legal or security purposes, exhibitions, publicity, advertising, promotional materials, and other marketing purposes, without reservation or limitation, in any manner and all media now or hereafter known, in perpetuity throughout the world, without restriction as to alteration and without compensation. Participant Representative waives any right to inspect or approve the use of the photographs and recordings.
I (adult Participant or parent of a minor Participant, as the Participant Representative) further acknowledge and agree:
· to review all The PlayGarten information received, accurately complete all requested information, and abide by The PlayGarten rules and policies. I agree that any information I have provided to The PlayGarten regarding me/my child is complete and accurate, and I agree it is my responsibility to provide The PlayGarten with any changes, including health or contact information, before the program start date;
· The PlayGarten representatives are available if I have further questions about the activities and risks;
· to disclose to The PlayGarten representatives any mental, physical or emotional condition/s or limitation/s which might affect Participant’s participation (as identified below), and represent that participant is fully capable of participating without causing harm to him/herself or others;
· the information provided in this Document is not exhaustive and other unknown or unanticipated activities, risks and outcomes may exist, and The PlayGarten cannot assure Participant's safety or eliminate any of these risks;
· Participant is voluntarily participating with knowledge of the Risks. Therefore, Participant (and parents of minors) assume and accept full responsibility for the inherent and other Risks (both known and unknown) of these Activities, and for any injury, damage, death or other loss suffered by participant (and parents of minors), resulting from those risks, including the risk of Participant's negligence or other misconduct.
Participant Representative and any adult Participants understand that whether they choose to electronically sign and accept, or sign a printable version of this Document, they are entering into a legally binding contract with The PlayGarten.
I, AS PARTICIPANT REPRESENTATIVE, STATE THAT I AM FULLY COMPETENT TO SIGN THIS RELEASE. I ACKNOWLEDGE THAT I HAVE FULLY READ AND UNDERSTAND EACH OF THE ABOVE PROVISIONS, OBLIGATIONS, AND RISKS STATED HEREIN. I ACKNOWLEDGE THAT PRIOR TO SIGNING THIS AGREEMENT I HAD THE RIGHT TO CONSULT WITH AN ATTORNEY OF MY CHOICE. I UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING THIS AGREEMENT AND ENTER THIS AGREEMENT FREELY AND VOLUNTARILY.
DISCLOSURE: (if this is left blank, The PlayGarten will consider your answer as a "no" or "none.") • Please disclose any mental, physical or emotional condition/s or limitation/s that may affect participation, necessitate care, or potentially affect the health or well-being of Participant(s) or others in the program (include any adaptation/s or restriction/s you consider appropriate or necessary):