Release and Waiver of Liability, Assumption and Acknowledgement of Risk, and Indemnity Agreement
No person under ten (10) years of age is allowed to participate in the Activity under any condition.
15850 Apple Valley Road Unit 101 Apple Valley Ca. 92307 (the “Premises”)
1. In consideration for being allowed to enter the Premises and/or participate in axe throwing (the “Activity”), organized and offered by Pulido Industries LLC. ( Tomahawk Axe Throwing”), I, (“Participant”), do hereby voluntarily release, agree to defend, indemnify, hold harmless and forever discharge Pulido Industries LLC, the current landlord of the Premises (“Landlord”) (Premier Properties) and all other Indemnified Parties (as defined below) from any and all losses, claims, demands, proceedings, investigations, causes of action, damages, liabilities, judgments, costs and expenses, including attorneys’ fees and other litigation costs sustained and/or expended which arise out of, relate to, or are in connection with (A) Participant’s use of or presence in the Premises, (B) Participant’s participation in the Activity, (C) conditions which are in any way connected with the Activity, the Premises, or the rest of the shopping center in which the Premises is located (“Shopping Center”), (D) Participant’s negligence, gross negligence, actions, inaction, or omissions, (E) the negligence, gross negligence, actions, inaction, or omission of another guest or invitee within the Premises, and (F) the negligence of any of the Indemnified Parties in connection with or related to the Activity, the Premises, or the shopping center; and Participant holds Indemnified Parties harmless for all such fees and costs and shall reimburse the Indemnified Parties and each of them for any such expenses incurred. I understand and agree that there are certain inherent risks associated with Activity and I assume full and all responsibility for personal injury to myself, and further release and discharge (Pulido Industries LLC) Tomahawk Axe Throwing, and the Indemnified Parties and each of them from all injuries of every kind or nature that I may suffer in connection with, arising out of, arising under, and/or relating to my participation in the Activity, whether foreseeable, intended, unintended, accidental, intentional, or not, or otherwise, as well as or for all losses, expenses, costs, or damages I or my family sustain and/or expended arising out of, relating to, or in connection with our presence upon the premises and/or facilities of (Pulido Industries LLC) Tomahawk Axe Throwing.
2. Participant further agrees to all the other terms stated in this agreement (“Agreement”). To the greatest extent allowed by law, I, for myself and on behalf of all minors that I am the legal guardian of, my estate, my children, my guardians, my parents, my heirs, my assigns, and my personal representatives (hereinafter collectively referred to as the “Assigns”), agree not to sue or make any claim against any of the Indemnified Parties; this specifically includes, but is not limited to, my agreement not to sue or make any claim against any of the Indemnified Parties for any claim(s) related to any injury or loss which arises from the Activity or from any occurrence in the Premises. Participant confirms that this Agreement constitutes Participant’s complete and unconditional release of the Indemnified Parties from all liability to the greatest extent allowed by law.
3. The term “Participant” shall include Minor. As used herein, “Minor” shall mean any one or more children of Participant or any person that Participant is the legal guardian of that enters the Premises.
4. The term “Indemnified Parties” shall mean Pulido Industries LLC, Tomahawk Axe Throwing, Landlord, and all of Tomahawk Axe Throwing’s’ and Landlord’s employees, owners, volunteers, participants, officers, members, managers, attorneys, representatives, contractors, successors, assigns, directors, agents, members, and any other persons or entities acting in any capacity on their behalf, and each of them.
5. Participant agrees to observe and obey all rules and warnings, and further agrees to follow any written or oral instructions or directions given by Tomahawk Axe Throwing owners, employees, representatives, contractors, successors, assigns, and/or agents of Tomahawk Axe Throwing (hereinafter collectively referred to as the “Tomahawk Parties”).
6. By signing this Agreement, Participant acknowledges, understands, and agrees that Participant will forever be prevented from suing or otherwise claiming against any of the Indemnified Parties for all claims, including but not limited to claims of negligence. Participant expressly acknowledges and agrees that this Agreement includes a waiver of all rights under Section 1542 of the California Civil Code. This statute reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
7. Participant has read the above Civil Code section, and fully understands it and the release Participant is giving. Participant acknowledges and understands that Participant may later discover facts different from or in addition to those Participant now knows or believes to be true regarding the matters released or described in this Agreement, and even so, Participant agrees to the releases and agreements contained in this Agreement which shall remain effective in all respects notwithstanding any later discovery of any different or additional facts. Participant shall assume all risk of mistake in connection with the true facts involved in the matters, disputes, or controversies described in this Agreement or with regard to any facts now unknown to Participant relating to those matters.
8. Participant understands and acknowledges that the Activity is an inherently dangerous and risky activity and Participant expressly acknowledges and agrees that the doctrine of primary assumption of risk is applicable to the Activity and to Participant’s participation in the Activity.
9. Participant represents and warrants that Participant shall not be under the influence of any drugs that could cause impairment while in the Premises and that Participant will not take marijuana or any other drug that could cause impairment while in the Premises.
10. Participant expressly accepts all responsibility for personal injury to Participant and shall assume all risks in connection with and arising from the Activity. Injury may arise from the action, inaction, or negligence of Participant or of others, or for other reasons.
11. Participant understands that Activity will involve voluntarily engaging in the throwing of axes, a dangerous weapon, and that axe-throwing is an inherently dangerous and risky activity and that risk of injury or loss simply cannot be eliminated from the Activity. RISKS ASSOCIATED WITH THE ACTIVITY INCLUDE, BUT ARE NOT LIMITED TO, SERIOUS PHYSICAL AND/OR PSYCHOLOGICAL INJURY, SCARRING, SPINAL INJURIES, NERVE DAMAGE, LOSS OF BODILY FUNCTIONS, PAIN, SUFFERING, ILLNESS, DISFIGUREMENT, LOSS OF LIMBS, TEMPORARY OR PERMANENT DISABILITY (INCLUDING PARALYSIS), SOCIAL OR ECONOMIC LOSS, EMOTIONAL INJURY, AND/OR DEATH. Participant’s participation in this Activity is purely voluntary and Participant elects to participate despite the risks. If I am pregnant, have a heart condition or other significant health condition, or believe that this activity may affect my health, I will not participate in the Activity. I understand and agree that Pulido Industries LLC and/or the Indemnified Parties have no way of knowing or being aware of the extent of my limitations, restrictions, sensitivities, phobias, and/or other physical, emotional, and other conditions, and therefore understand and agree that I am solely responsible for declining participation in the Activity and assume all responsibility for all consequences of my participation in the Activity. I understand that the activities I am voluntarily engaging in are physical and unpredictable in nature and involve forces and elements beyond the control of Pulido Industries LLC and/or the Indemnified Parties and could lead to bodily injury, property damage, including permanent injuries and even death, even if the exact nature of the in jury(ies) may or may not be foreseeable.
12. Participant is hereby informed and acknowledges that Tomahawk Axe Throwing (and not Landlord) is solely responsible for everything within the Premises, including but not limited to (i) all inspection, repair and maintenance of the Premises, (ii) all inspection, repair and maintenance of all equipment in the Premises, and (iii) providing all equipment, instruction, safety equipment and safety procedures used or provided in connection with the Activity. Therefore, in addition to all other agreements herein, Participant specifically agrees not to sue (or bring any type of claim or action against) Landlord for or in connection with: (i) any occurrence within the Premises (ii) the condition of any equipment used or provided in connection with the Activity (whether caused by failure to adequately inspect, repair or maintain the equipment, or otherwise), (iii) the condition of the Premises (whether caused by failure to adequately inspect, repair or maintain the Premises, or otherwise), (iv) the adequacy of any instruction or safety procedures used or provided in connection with the Activity or (v) any injury in connection with the Activity. Participant specifically releases, indemnifies, holds harmless and forever discharges Landlord from any liability in connection with the items listed in this section.
13. Participant agrees to check all equipment and all areas to be used for the Activity very carefully, and to immediately report any potential issues or concerns to Tomahawk Axe Throwing employees before taking part in the Activity.
14. Participant certifies that Participant has adequate insurance to cover any injury, medical treatment, or damage Participant may cause or suffer that is in any way connected with or arising from Participant’s participation in the Activity and Participant agrees to bear all costs of such injury or damage.
15. Participant certifies that Participant has no medical or physical conditions which could interfere or jeopardize Participant’s health or safety or the health or safety of others during their participation in the Activity.
16. Participant understands and agrees that Indemnified Parties have no way of knowing or being aware of any limitations, restrictions, sensitivities, phobias, health, and/or other physical, emotional, and other conditions Participant may have, if any. Participant understands and agrees that Participant shall be solely responsible for declining participation in the Activity and Participant assumes all responsibility for all consequences of participating in the Activity.
17. Participant agrees that Participant will not touch or otherwise make purposeful physical contact with any third parties and/or employees, representatives, and/or agents of Tomahawk Axe Throwing or Indemnified Parties.
18. Participant understands and agrees that Tomahawk Parties have difficult jobs to perform. Participant also understands and agrees that the equipment being used might malfunction. Participant understands that (in addition to the warnings contained herein) the Indemnified Parties are not required to and may not give any additional warnings. The Tomahawk Parties may provide instruction. Participant agrees to follow such instruction and agrees that Participant shall hold the Indemnified Parties harmless for any and all claims as a result of such instruction.
19. Participant hereby waives all rights to seek compensatory damages, lost profits, and exemplary damages against the Indemnified Parties, and each of them, and agrees that any damages that Participant may suffer for participation in the Activity shall be limited to a refund of the admission fees that Participant has paid for participation in the Activity. INDEMNIFIED PARTIES SHALL NOT BE LIABLE TO PARTICIPANT FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR ANY OTHER TYPES OF DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ACTIVITY AND/OR PRESENCE IN THE PREMISES. THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER OR NOT PARTICIPANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
20. No Warranties. INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
21. Participant agrees and acknowledges that Participant is not under any pressure or duress to sign this Agreement and that Participant has been given a reasonable opportunity to review this Agreement. Participant further agrees and acknowledges that Participant shall be free to have his/her own legal counsel review this Agreement. Participant further agrees and acknowledges that Tomahawk Axe Throwing has offered to refund any fees Participant has paid to use its facilities if Participant chooses not to sign this Agreement.
22. By signing this agreement, Participant grants and gives Tomahawk Axe Throwing and the Indemnified Parties the irrevocable right, license, and permission to record and use for any purpose: (i) Participant’s image and likeness (both still and motion picture) – including photographic, film, video, and other electronic images and (ii) Participant’s voice – including sound and video recordings. Participant agrees that Participant shall not be entitled to compensation for any use of Participant image, likeness, or voice.
23. This agreement is governed by and shall be construed in accordance with the laws of the state of California, without any reference to its choice of law rules. Wherever possible, each provision hereof, shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, each such provision shall be ineffective to the extent, and only to the extent, of such invalidity, illegality or unenforceability, without invalidating or impairing the remainder of such invalid, illegal or unenforceable provision and without invalidating or impairing any other provisions hereof. This Agreement shall be given the construction that renders its provisions valid and enforceable to the maximum extent reasonably possible under applicable law. For example, if a release for negligence and gross negligence by Participant is found to be contained in this Agreement and the gross negligence portion of such release is found to be unenforceable, then the release by Participant for gross negligence shall be deemed to be ineffective, but the release for negligence shall remain included in this Agreement and shall remain enforceable to the greatest extent permitted according to law. The various covenants and provisions of this Agreement are intended to be severable and to constitute independent and distinct binding obligations and rights.
24. In the event that any ambiguity is found to exist in the interpretation of this Agreement, the court or arbitrator shall reject the application of any legal or equitable rule of interpretation which could lead to a construction either “for” or “against” a particular litigant based upon their status as the drafter of this Agreement or a specific term, language, or provision giving rise to such ambiguity.
25. In consideration of any Minor being allowed to enter the Premises and/or participate in the Activity, Participant, on behalf of Minor, hereby grants a full release (as set forth above) to all Indemnified Parties. I, as parent/guardian, certify that I have custody of Minor and/or I am the legal guardian of Minor by court order. I have read this Agreement and fully understand and agree to all its terms and I am executing this agreement for myself and on behalf of Minor. In addition to all other obligations contained in this Agreement, Minor also specifically agrees to indemnify all the Indemnified Parties and covenants not to sue any Indemnified Party. Furthermore, I, Participant, agree to indemnify and hold harmless each Indemnified Party from any and all claims which are brought by, or on behalf of Minor, or which are in any way connected with the participation by Minor in the Activity.
Any dispute, claim or controversy that Participant may have or raise against any one or more of the Indemnified Parties, including but not limited to any dispute, claim or controversy arising out of or relating to the Activity (including the determination of the scope or applicability of this agreement to arbitrate) shall be determined by arbitration in Victorville, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator shall either be agreed to by the parties or selected by strike procedure.
PARTICIPANT SHALL WEAR CLOSED TOED SHOES AT ALL TIMES WHILE IN THE PREMISES.
PARTICIPANT ACKNOWLEDGES READING THIS ENTIRE AGREEMENT AND FULLY UNDERSTANDS THE CONTENTS HEREOF AND PARTICIPANT AGREES TO BE BOUND BY ITS TERMS. PARTICIPANT FURTHER CONFIRMS THAT BY SIGNING THIS AGREEMENT, PARTICIPANT FREELY AND VOLUNTARILY SURRENDERS CERTAIN SUBSTANTIAL LEGAL RIGHTS INCLUDING CERTAIN RIGHTS TO SUE. PARTICIPANT UNDERSTANDS AND ACCEPTS THAT THE ACTIVITY CARRIES RISKS THAT INCLUDE BUT ARE NOT LIMITED TO PHYSICAL AND/OR PSYCHOLOGICAL INJURY, PAIN, SUFFERING, ILLNESS, DISFIGUREMENT, LOSS OF LIMBS, TEMPORARY OR PERMANENT DISABILITY (INCLUDING PARALYSIS), SOCIAL, ECONOMIC OR EMOTIONAL LOSS, AND/OR DEATH.
Likeness & Image Release 15850 Apple Valley Road Unit 101 Apple Valley Ca. 92307 (the “Premises”)
The undersigned participant individually and on behalf of all minors that Participant is the legal guardian of, Participant’s estate, children, guardians, parents, heirs, assigns, and personal representatives (hereinafter collectively referred to as the “Participant”), authorizes Pulido Industries LLC. (“Tomahawk Axe Throwing”), the landlord of the Premises (“Landlord”), and all the representatives, successors, assigns, agents, licensees, and designees of each, and any other persons or entities acting in any capacity on their behalf, and each of them (“Licensees”), the rights to Participant’s image, likeness, and rights of publicity as follows:
Participant authorizes and grants to the Licensees irrevocable, perpetual, worldwide, sub-licensable, sub- assignable, and royalty-free right, license, and permission to record and use for any purpose: (i) Participant’s image and likeness (both still and motion picture), including photographic, film, video, and other electronic images; (ii) Participant’s voice – including sound and video recordings; and (iii) Participant’s identity, likeness, image, photographs, pictures and all other depictions in any tangible or intangible medium now existing or hereinafter created, including film and electronic (video) form, sound and video recordings of my voice, and printed electronic copy of the information provided to Licensees, in any and all media including without limitation, cable and broadcast television, the Internet, social media sites, and mobile applications, and for exhibition, distribution, promotion, advertising, sale, press conferences, meeting, hearings, educational conferences, and in brochures and other online and print media in connection with the advertisement and promotion of Tomahawk Axe Throwing, and/or any other purpose. Participant’s permission extends to all language, media, formats, and markets now known or hereafter devised. Participant further grants and conveys to Licensees all right, title, and interest that Participant may have in all finished pictures, negatives, reproductions, and copies of original prints, and further grants to Licensees the right to such materials for marketing, communications, or advertising and/or other purposes, at the discretion of Licensees. Participant understands, acknowledges, and agrees that Participant shall not receive any compensation in connection with the aforementioned rights and licenses, and Participant hereby waives the right to receive any payment in connection with Licensees’ use of, or any rights to inspect or approve, finished photographs, audio, video, multimedia, or advertising and copy printed matter or computer generated scanned images and other electronic media that may be used in conjunction therewith nor shall Participant have any right to approve the eventual use to which it might be applied.
The undersigned participant represents and warrants to Tomahawk Axe Throwing and Landlord that the undersigned participant has delivered a fully executed copy of the Release and Waiver of Liability, Assumption and Acknowledgement of Risk, and Indemnity Agreement, dated on or about the date hereof, to Tomahawk Axe Throwing and Landlord. [Upon written request from Tomahawk Axe Throwing or Landlord, if Tomahawk Axe Throwing or Landlord is unable to locate a fully executed copy of the Release and Waiver of Liability, Assumption and Acknowledgement of Risk, and Indemnity Agreement, the undersigned participant agrees to execute and deliver to Tomahawk Axe Throwing and Landlord an additional fully executed copy of the Release and Waiver of Liability, Assumption and Acknowledgement of Risk, and Indemnity Agreement [which the undersigned participant shall date as of the date of this Image and Likeness Release].
Participant represents and warrants that the identification Participant has shown or provided to Tomahawk Axe Throwing was issued to Participant, is valid, is authentic, and contains Participant’s correct name and birth date.
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