PARTICIPATION, WAIVER AND RELEASE
OF LIABILITY, INDEMNITY AND
ASSUMPTION OF RISK AGREEMENT
This is an IMPORTANT AND BINDING AGREEMENT between you and SB ACT (defined below). AMONG OTHER IMPORTANT PROVISIONS, this agreement contains an authorization to use your likeness (Section 3.1), ASSUMPTION OF RISK (SECTION 4.1), INDEMNITY PROVISION (SECTION 5.1), WAIVER AND RELEASE OF LIABILITY (ARTICLE 6) AND AN ARBITRATION PROVISION (ARTICLE 7). Please read this agreement carefully and completely and agree to it only if you fully understand its terms and fully appreciate the risks involved.
In consideration for being allowed to participate in any SB ACT Event (defined in Section 1.3) today or on any future date, I (referred here as “I”, “me” or “my”) voluntarily enter into this binding Participation, Waiver and Release of Liability, Indemnity and Assumption of Risk Agreement (this “Agreement”) with SB ACT. I represent, warrant and agree as follows:
1. Definitions. To make this Agreement easier to understand, we have defined several terms here and throughout this Agreement. Defined terms appear bolded and italicized. Please read these definitions carefully. Singular and plural defined terms have the same meaning.
1.1. “Loss” means liabilities, costs, expenses, damages and losses, including any direct, indirect or consequential losses, penalties, legal costs and expenses (including reasonable attorney fees) and other reasonable professional costs and expenses.
1.2. “Released Parties” means any SB ACT Parties (defined in Section 1.4) along with any party named as an additional insured on any applicable policy of insurance held by any SB ACT Parties, or any other party which SB ACT has or may be obligated to indemnify, hold harmless or to which SB ACT may otherwise be liable, including all governmental or private entities which lease, rent or permit use of premises for SB ACT Events.
1.3. “SB ACT Events” means any activity organized by, sponsored by, paid for, coordinated with, authorized by or held by SB ACT, including kickball games and tournaments, foam dodgeball games and tournaments, other recreational sports, cruises, other competitions (including games and tournaments), trips, social events, happy hours, bar functions and other events and gatherings.
1.4. “SB ACT Parties” means SB ACT and its past, present or future officers, directors, employees, members, representatives, subsidiaries, agents, partners, parents, successors, shareholders, unitholders, owners, managers, volunteers, contractors and assigns.
2. Competence, Binding Effect, Safe Participation and Medical Waiver.
2.1. Competence, Binding Effect and Authority. I represent and warrant that I am over 18 years of age and am fully competent to enter into a binding agreement. I agree that to the fullest extent allowable under law, this agreement will bind my heirs, representatives, executors, administrators, successors and assigns. I represent and warrant that I am the person who will be participating in SB ACT Events.
2.2. Physical Ability to Participate Safely in SB ACT Events.
2.2.1. I represent and warrant that I am physically able to participate safely in the SB ACT Event for which I have signed up or will participate in the future. I agree that I will not participate in any SB ACT Event that I am physically unable to participate in safely or for which I am susceptible to injury or harm.
2.2.2. I agree that it is my sole responsibility to determine whether I am sufficiently fit and healthy to participate in SB ACT Events, and that I am solely responsible for my safety and well-being.
2.3. Unavailability of On-Site Medical Facilities. I acknowledge that medical personnel and treatment facilities are generally not available on-site at SB ACT Events.
3. Use of Your Likeness, Images and Recordings.
3.1. Authorization to Record and Use. I understand that SB ACT may, and I authorize SB ACT to, take images of or record me during SB ACT Events. Further, I authorize SB ACT to use my name, likeness, voice, recording or image for purposes of advertising, marketing, promotion or trade without further compensation, except where prohibited by law; and I further acknowledge and agree that any images or recordings obtained or procured by SB ACT will be the sole and exclusive property of SB ACT, and may be published, broadcast or otherwise disseminated at the sole and exclusive discretion of SB ACT.
4. ASSUMPTION OF RISK and Agreement to Abide by Applicable Laws and Rules.
4.1. ASSUMPTION OF RISK. SB ACT Events, which, as noted in Section 1.3, include physical activity, recreational sports, sporting tournaments, social events (including happy hours, bar functions, events and gatherings) and travel, that by their nature carry certain known and unknown risks and dangers. To the fullest extent allowable under law, I REPRESENT, WARRANT AND AGREE THAT IF I PARTICIPATE IN ANY SB ACT EVENT, I DO SO VOLUNTARILY AND AT MY OWN RISK, INCLUDING BOTH KNOWN AND UNKNOWN RISKS. Additionally, I agree that it is my sole responsibility to learn of the risks involved in each SB ACT Event that I choose to participate in. I agree to not participate in, or continue to participate in, any SB ACT Events that I am not fully cognizant of the risks involved. Further, I assume any known and unknown risks associated with Section 2.3.
4.2. Non-Exhaustive List of Some Risks. Below is a non-exhaustive list of some risks associated with SB ACT Events. Please read carefully.
4.2.1. Some common risks associated with recreational sports, games and tournaments include serious physical injury; permanent injury; paralysis; death; trauma; concussions; brain injury; heat exhaustion or heat stroke; dehydration; sickness or diseases; injuring from colliding with another player; injuries from getting hit with a ball; injuries and damages caused by other players (whether negligent, reckless, intentional or malicious); loss, theft or damage to personal property; injuries from running, kicking or throwing; sprained and torn ligaments, tendons, muscles and cartilages; eye injuries; injuries from delayed or negligent medical help; injuries from defective facilities; injuries from exposure to extreme weather or other adverse weather conditions; injuries from inadequate warnings or inspections; injuries from transportation to and from events; injuries from equipment failure; and slippage.
4.2.2. Some risks association with social events, games and travel include serious physical injury; permanent injury; paralysis; death; risks associated with consumptions of alcohol or other substances permissible by law; injuries from actions of others (whether negligent, reckless, intentional or malicious); injuries from consuming contaminated beverages or foods; misconduct by hosts (including negligence and failure to follow laws); injuries from defects in facility; transportation accidents (including bus accidents, airplane accidents, car accident and falling overboard); injuries from delayed or negligent medical help; sickness or disease (including infectious diseases aboard cruise ships); unsanitary conditions; slippage; injuries from exposure to extreme weather or other adverse weather conditions; injuries from inadequate warnings or inspections; injuries from transportation to and from events; equipment failure; and loss, damage or theft to personal property.
4.3. Agreement to Abide by Applicable Laws, Rules, Policies and Regulations. I agree to abide by all applicable governmental laws, rules and regulations arising from or relating to my and others’ safety, health and wellbeing and all other rules, policies and regulations associated with the applicable SB ACT Event that I participate in (including the rules and regulations of SB ACT and those of the applicable businesses, municipalities, organizations, facility, resort, cruise ship, travel company, common carrier and accommodation company). I agree that it is my responsibility to locate, understand and follow such laws, rules, policies and regulations, including any updates or amendments to them.
5. INDEMNIFICATION FOR YOUR ACTIONS.
5.1. AGREEMENT TO INDEMNIFY SB ACT. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, I AGREE TO INDEMNIFY AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY LOSS, RELATING TO OR ARISING OUT OF (I) MY NEGLIGENT (INCLUDING GROSS NEGLIGENCE), RECKLESS OR INTENTIONAL ACT OR OMISSION AND (II) MY BREACH OF THIS AGREEMENT.
6. RELEASE AND WAIVER.
6.1. INTENT AND RELEASE AND WAIVER. We have structured our release in multiple parts to allow for the fullest enforcement allowed under applicable law. Please see Section 8.2 and consult the CA state laws. In consideration for being allowed to participate in a SB ACT Event (whether now or in the future), I AGREE AS FOLLOWS:
6.1.1. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, I HEREBY VOLUNTARILY AND IRREVOCABLY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY LOSS THAT MAY RELATE TO OR ARISE OUT OF (WHETHER DIRECTLY OR INDIRECTLY) ANY INJURY (WHETHER PHYSICAL, EMOTIONAL OR OTHERWISE), DEATH, DAMAGE, COST, LOSS, LIABILITY OR EXPENSE FROM MY PARTICIPATION IN A SB ACT EVENT THAT MAY BE CAUSED SOLELY OR IN PART BY THE:
220.127.116.11. NEGLIGENT ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE;
18.104.22.168. GROSSLY NEGLIGENT ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE; AND
22.214.171.124. RECKLESS ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE.
6.1.2. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, I HEREBY VOLUNTARILY AND IRREVOCABLY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY LOSS THAT MAY RELATE TO OR ARISE OUT OF (WHETHER DIRECTLY OR INDIRECTLY) ANY PROPERTY DAMAGE, COST, LOSS, LIABILITY OR EXPENSE FROM MY PARTICIPATION IN A SB ACT EVENT THAT MAY BE CAUSED SOLELY OR IN PART BY THE:
126.96.36.199. NEGLIGENT ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE;
188.8.131.52. GROSSLY NEGLIGENT ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE; AND
184.108.40.206. RECKLESS ACT OR OMISSION OF ANY RELEASED PARTIES, WHETHER NOW OR IN THE FUTURE.
7. MEDIATION AND BINDING ARBITRATION.
7.1. Mediation and Arbitration Procedure. If a controversy or claim relates to or arises out of this Agreement, both parties agree that upon request of either party, they will first seek the advice of a mutually selected mediator and try in good faith to settle the claim or controversy within 45 days of that request, following which either party may submit the matter to mediation by the American Arbitration Association (“AAA”). If the matter is not resolved within 90 days after initiation of mediation, either party may, as its sole remedy, file for binding arbitration administered by the AAA under its Commercial Arbitration Rules. The parties agree to try the matter before one neutral arbitrator with experience in resolving the claim or controversy at hand.
Unless the parties mutually agree to otherwise in writing, the place of any arbitration or mediation will be Santa Barbara, CA. The parties will share equally the fees of the arbitration or mediation, but each party will bear the costs of its own attorneys' and experts' fees; provided, that the arbitrator may, in his or her discretion, award the prevailing party all or part of the costs and expenses incurred by the prevailing party in connection with the arbitration. To protect the confidentiality of 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 or mediation without the prior written consent of both parties. Any award by an arbitrator must include findings of facts and conclusions of law. Judgment upon an arbitration award rendered may be entered in any court having jurisdiction. Notwithstanding the foregoing, neither party will be bound to follow the dispute resolution process described in this Section with respect to any dispute for which interim equitable relief from a court is necessary to prevent serious and irreparable injury to a party.
8. Miscellaneous Provisions.
8.1. Survival. Articles 6, 7 and 8 along with Sections 3.1 (to the extent such image or recording was made prior to the expiration or termination date) and 5.1 will survive any expiration or termination of this Agreement.
8.2. Governing Law. Except when prohibited by law, this agreement will be governed by and construed in accordance with the laws of the State of California without reference to any rules of conflict of laws or choice of law provisions that would compel the application of the substantive laws of any other jurisdiction.
8.3. Merger. This Agreement constitutes the entire agreement with respect to the subject matter discussed and supersedes any prior understanding and agreements respecting the subject matter. This Agreement may not be modified except by a written agreement.
8.4. No Waiver. No delay, failure or waiver of SB ACT’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. No waiver of any provision of this Agreement will constitute a waiver of any other provision or of the same provision on another occasion.
8.5. Severability. If any provision or portion of this Agreement is held to be illegal, void or unenforceable, the remaining provisions or portions will remain in full force and effect. If any term or provision of this Agreement is declared invalid, void or unenforceable, the parties agree that the authority making such determination will have the power to and will if possible under applicable law reduce the scope or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the original intention of the invalid, void or unenforceable term or provision.
8.6. Assignment. Except as stated in this Agreement, I acknowledge that this Agreement is personal to me and I cannot assign, delegate or transfer it. SB ACT may freely assign, delegate or transfer this Agreement. Any attempt to assign, delegate or transfer this Agreement in violation of this provision is void and without effect.
8.7. Construction. The headings used in this Agreement are for convenience only and are not part of this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) “or” has the inclusive meaning identified with the phrase “and/or”; (ii) references to the plural include the singular, the singular the plural and the part the whole; and (iii) “include” and “including” have the inclusive meaning identified with the phrases “including, but not limited to,”; “including, without limitation,”; “include, but not limited to,”; and “include, without limitation,”.
8.8. Execution. This Agreement may be entered into by electronic assent, via e-signature, physical signature, email, fax or other similar forms of execution.
I HAVE FULLY READ AND UNDERSTOOD (INCLUDING SECTIONS 3.1, 4.1, 4.2 AND 5.1 AND ARTICLES 1, 6 AND 7) THIS PARTICIPATION, WAIVER AND RELEASE OF LIABILITY, INDEMNITY AND ASSUMPTION OF RISK AGREEMENT AND ENTER INTO IT VOLUNTARILY IN CONSIDERATION FOR BEING ALLOWED TO PARTICIPATE IN ANY SB ACT EVENTS.
I have read and agree to the registration waiver.