This Participant Waiver and Release of Liability (hereinafter “Release”) is made and effective as of the day set forth below by the undersigned executing this Release (Hereinafter “Participant”, “I”, or “me”) in favor of 805 Fitness Inc., a California corporation, dba Fitness 805, its directors, officers, shareholders, agents, employees, independent contractors, insurers, attorneys, guarantors, successors, assigns, affiliated companies, and Jason Baker and Wendy Baker, in their individual capacities (collectively “Fitness 805”). I have voluntarily requested to participate in Fitness 805’s Services, Classes and/or Events as defined herein and understand that my participation is non-work related even though it may be organized through my employer.
I acknowledge that use of the Services is expressly conditioned on my agreement to each of the terms of this document. I do hereby freely, voluntarily and without duress execute this Release under the following terms:
Nature of Services, Classes, or Events. Fitness 805 provides services, classes, and events, including but not limited to, hospitality wellness services, water activities (Kayak, Stand-up Paddle Boarding & Surfing), hiking, physical training, utilization of fitness equipment, and indoor/outdoor group or individual activities (“Services”).
Express Assumption of Risk. I understand that use of the Services involves physical exercise, sport and/or recreational activities that may cause injury. I understand that there is an inherent risk of injury, up to and including death, when choosing to participate in any physical exercise, sport, wellness, and/or recreational activities, which may be due to the active or passive negligence on the part of myself, other people around me, or Fitness 805. In participating in such Services, I assume all risks of injury and illness that may result from such use whether foreseeable or not, including death and damages or loss which I may sustain as a result of participating in any and all activities arising out of, connected with or in any way associated with my use of the Services including any sponsored group activities or individual use of exercise equipment.
WAIVER AND RELEASE. I, ON BEHALF OF MYSELF, MY HEIRS, PERSONAL REPRESENTATIVES, AGENTS, SUCCESSORS, AND ASSIGNS, AND ANYONE ELSE WHO MAY MAKE A CLAIM ON MY BEHALF (“RELEASORS”), DO HEREBY FULLY RELEASE AND FOREVER DISCHARGE FITNESS 805, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, INSURERS, ATTORNEYS, GUARANTORS, SUCCESSORS, ASSIGNS, AFFILIATED COMPANIES, AND JASON BAKER AND WENDY BAKER, IN THEIR INDIVIDUAL CAPACITIES (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY, CLAIMS AND DEMANDS OF WHATEVER KIND OR NATURE, ARISING UNDER LAW, EQUITY, STATUTES, OR CONTRACT, WHICH ARISE OR MAY HEREAFTER ARISE FROM OR ARE IN ANY WAY CONNECTED WITH MY PARTICIPATION IN THE SERVICES. I UNDERSTAND THAT THIS RELEASE DISCHARGES FITNESS 805 FROM ANY LIABILITY OR CLAIM THAT THE RELEASORS MAY HAVE AGAINST FITNESS 805 WITH RESPECT TO ANY PERSONAL INJURY, ILLNESS, LOSS OF LIFE, SELF-HARM, DAMAGE TO PERSONS OR PROPERTY, OR LOSS OF PROPERTY THAT MAY RESULT FROM OR IN CONNECTION WITH MY PARTICIPATION IN THE SERVICES, WHETHER CAUSED BY THE PASSIVE OR ACTIVE NEGLIGENT ACTIONS OR OTHERWISE OF FITNESS 805 OR CAUSED BY MY OWN ACTIONS. I ALSO UNDERSTAND THAT FITNESS 805 DOES NOT ASSUME ANY RESPONSIBILITY FOR OR OBLIGATION TO PROVIDE MEDICAL ASSISTANCE, FINANCIAL ASSISTANCE, OR OTHER ASSISTANCE IN THE EVENT OF ILLNESS OR INJURY, INCLUDING DEATH. I UNDERSTAND AND AGREE BY SIGNING THIS DOCUMENT OR PARTICIPATING IN THE SERVICES THAT THIS IS A COMPLETE AND IRREVOCABLE RELEASE AND WAIVER OF LIABILITY. I COVENANT NOT TO SUE THE RELEASED PARTIES FOR ANY ALLEGED LIABILITIES, CLAIMS, OR CAUSES OF ACTION RELEASED HEREUNDER. WITHOUT LIMITING THE FOREGOING, I AGREE THAT SHOULD FITNESS 805 BE FOUND LIABLE FOR LOSS OR DAMAGE DUE TO THE SERVICES OR THE FAILURE OF FITNESS 805 TO PROVIDE ANY OF THE SERVICES SUBSCRIBED FOR UNDER THIS AGREEMENT, FITNESS 805’S LIABILITY SHALL NOT EXCEED A SUM EQUAL TO MY COST FOR THE SERVICE GIVING RISE TO THE CLAIM.
1. Indemnification. I hereby agree to indemnify, defend, and hold harmless the Released Parties against and from any and all liability, demands, claims, costs (including attorneys’ fees and costs), losses, damages (whether actual, punitive, consequential or otherwise), recoveries, settlements, and expenses, whether arising from law, equity, statute, contract, and legal liability, including, without limitation, any injury to person (including death) or damage to property, whether anticipated or unanticipated, known or unknown, suspected or unsuspected and/or foreseeable or unforeseeable, which in any way relate to or arise out of the Services.
2. Ability to Participate. I certify that I am physically able to participate in the Services and have no known injuries, illness or disabilities that impact my ability to participate safely and without risk to my health or wellbeing. If I am in any doubt about my ability to participate, now or in the future, I agree to consult a medical professional and obtain clearance to proceed. I understand and agree that any comments or advice that I receive from Fitness 805 are not intended as medical advice. I further certify that I am knowledgeable about the proper use of any equipment that I will use. I understand and agree to abide by Fitness 805’s policy and rules.
3. Emergency Treatment. In the event of any emergency, I authorize the Fitness 805 to secure from any licensed hospital, physician and/or medical personnel any treatment deemed necessary for my immediate care and agree that I will be responsible for payment of any and all medical services rendered.
4. Lost Personal Property. The Released Parties are not responsible for any loss or theft of personal property brought to or left at the classes, gym and/or beach and I release Fitness 805 from any liability for such loss or theft.
5. Choice of Law; Severability. I understand that this Release shall be governed by and construed in accordance with the laws of the State of California, excluding any laws that direct the application of another jurisdiction’s laws. Any action with respect to this Release must be brought in a court having jurisdiction over Santa Barbara County, California. I hereby irrevocably submit to the jurisdiction of such courts. In any action or other proceeding relating to the activities or this Release, the prevailing party shall be awarded reasonable attorney fees, together with costs and expenses, to resolve the dispute and to enforce the final judgment. If any provision of this Release shall be deemed to be invalid, the remainder of this Release shall not be affected by such invalidation. Each provision of this Release shall be valid and enforceable to the fullest extent permitted by law. This Release shall be binding upon my executors, heirs and assigns. No provision of this Release may be amended, modified, supplemented, waived, discharged or terminated unless consented to in writing by Fitness 805.
6. Alternative Dispute Resolution Required. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation. If the parties are unable to settle the dispute by mediation, the dispute shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. THIS IS A WAIVER OF RIGHTS TO A JURY TRIAL, IF ANY.
7. Beginning Arbitration. The party demanding arbitration must give written notice of any claim to the other party setting out the basis of the claim, and proposing the name of an arbitrator, no later than one year after the event giving rise to the claim. Otherwise, the claim shall be void and deemed waived even if there is a federal or state statute of limitations which would have given more time to pursue the claim.
Any proposed arbitrator must either be a retired judge or be an attorney who has at least 10 years of relevant experience to the claim at issue. The responding party has 10 business days in which to respond to this demand in a written answer. If this response is not timely made, or if the responding party agrees with the person proposed as the arbitrator, then the person named by the demanding party will serve as the arbitrator. If the responding party submits a written answer rejecting the proposed arbitrator then, unless the parties agree on an arbitrator, on the request of either party, the American Arbitration Association will select an arbitrator pursuant to its method of appointment for the Resolution of Commercial Disputes.
8. Discovery. The parties are entitled to discovery sufficient to adequately arbitrate their claim(s), including access to essential documents and witnesses, determined by the arbitrator as necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. No less than 30 calendar days before the arbitration, a party may serve a document request calling for any document that would be discoverable in civil litigation. The party served with this request shall deliver the requested documents and any objections within 7 business days. Each party may take no more than three depositions, unless additional depositions are allowed by the arbitrator for good cause. All depositions must be completed as of 14 calendar days before the arbitration hearing. The arbitrator shall have the power to resolve any dispute over the exchange of documents or depositions; issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of books, records, documents, or other evidence; to order depositions to be used as evidence; and subject to the limitations above, enforce the rights, remedies, procedures, duties, liabilities, and obligations of discovery as if the arbitration were a civil action before a California Superior Court.
9. Location. The arbitration will take place in Santa Barbara, California at a time and place selected by the arbitrator.
10. Award. Within 15 days from the date the hearing is closed, the arbitrator will submit a tentative decision in writing, specifying the reasoning for the decision and any calculations necessary to explain the award. The tentative decision will dispose of each issue submitted to the arbitrator. Each party has 15 days in which to submit written comments to the tentative decision. Within 10 days after the deadline for written comments, the arbitrator will announce the final award in a writing provided to the parties. The arbitrator’s award is subject to judicial review for errors of law or legal reasoning.
11. Arbitration Costs. Before arbitration commences, each party will pay the arbitrator half of the expected cost of the arbitration. Unless otherwise ordered by the arbitrator, each party shall pay its own attorneys’ fees, witness fees, and other expenses incurred by the party.
I am 18 years old or older. I have read and fully understand this Acknowledgement and Release of Liability set forth above, including Fitness 805’s permission to secure medical treatment on my behalf and waiver and release of all claims, including claims for the negligence of the Released Parties. I understand that this Release will be retained by Fitness 805. This document is binding upon me and the Releasors as herein defined in this Release. I certify that all of the information provided in this Release is true and correct.
BY ENTERING INTO THIS AGREEMENT, I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, FULLY UNDERSTAND ITS CONTENTS, AGREE TO ITS PROVISIONS, AND AM AUTHORIZED TO ENTER INTO THIS AGREEMENT. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY, A WAIVER OF CLAIMS, AND AN AGREEMENT TO BE BOUND BY ARBITRATION.
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If signing only for self, please submit. If adding a minor, please scroll down to sign again.
BY SIGNING BELOW, I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS RELEASE, FULLY UNDERSTAND ITS CONTENTS, AND AGREE TO ITS PROVISIONS. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY, A WAIVER OF CLAIMS, AND AN AGREEMENT TO BE BOUND BY ARBITRATION, ALL ON BEHALF OF MYSELF AND THE MINOR. I AM THE PARENT/GUARDIAN OF THE MINOR NAMED BELOW AND AM AUTHORIZED TO EXECUTE THIS RELEASE AND ALLOW THE PARTICIPATION OF THE MINOR IN FITNESS 805's SERVICES.
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