PARTICIPATION AGREEMENT AND WAIVER
YOU MUST READ THIS PARTICIPATION AGREEMENT AND WAIVER CAREFULLY
This Agreement Must be Signed by a Legal Guardian or Individual over the age of 18 with Authority to Sign
INHERENTLY RISKY RECREATIONAL ACTIVITY
MAY RESULT IN DEATH OR PARALYSIS!
PLAY AT YOUR OWN RISK!
THIS PARTICIPATION AGREEMENT (“Agreement”) is made and is effective as of the last date executed (hereinafter the “Effective Date”) by and between Monkey Do, LLC (hereinafter “Monkey Do”) and the adult or guardian identified (hereinafter “Adult”), who is executing this Participation Agreement personally, and on behalf of him or herself and any minor children specified below (the Adult and any minor children on whose behalf Adult signs this Agreement are collectively referred to hereinafter as the “Participants”). If you are signing on behalf of any child, you are representing that you have authority to sign on behalf of that child, and we are relying on your representation. Monkey Do and Participants are collectively referred to hereinafter as the “Parties.”
WHEREAS, Monkey Do owns and/or operates a children’s indoor play facility located at 64 Harvest Lane, Williston VT 05495 (hereinafter the “Play Facility”); and
WHEREAS, Monkey Do makes the Play Facility available to customers solely for recreational use and enjoyment, not as a service to the general public; and
WHEREAS, Participants desire to participate in ALL the recreational activities available at the Play Facility; and
WHEREAS, Participants know, understand, and acknowledge that participation in ANY of the recreational activities available at the Play Facility is purely voluntary, not essential or necessary, and intended solely for recreational enjoyment; and
WHEREAS, Participants know, understand, and acknowledge that the use of play equipment, obstacle courses, trampoline equipment, ropes courses, climbing facilities, and the like, and use or participation in any of the equipment, services, activities, or presence at Play Facility (collectively “Use of Facility”), constitutes an inherently risky recreational activity that is likely to result in serious injury (such as paralysis and death), damage to property, and injury to third parties; and
WHEREAS, Monkey Do will not make the Play Facility available to Participants unless Participants are willing to take personal responsibility for any and all known and unknown injuries to Participants, damage to property, and injuries to third parties that may result from Participants' voluntary participation in ALL the recreational activities available at the Play Facility and any of the other causes identified hereinafter.
NOW THEREFORE, in consideration of the premises and the mutual covenants, conditions, representations, and agreements contained herein, as well as the cost of admission to the Play Facility, the Parties hereby agree as follows:
1. Waiver and Release of Liability
To participate in the Use of Facility, all Participants, on behalf of themselves, and their parents, spouses, children/wards, heirs, assigns, representatives, estates, successors, attorneys, insurers, and all other persons, firms, partnerships or corporations connected therewith (collectively referred to hereinafter as the “Releasing Parties”), forever, finally, fully, permanently and unconditionally waive, release, acquit and discharge Monkey Do, and its present and former employees, owners, members, principals, directors, subsidiaries, affiliates, representatives, predecessors, successors, shareholders, partners, parents, officers, agents, assigns, servants, attorneys, insurers, suppliers, manufacturers, clients, customers, participants, and all other persons, firms, partnerships or corporations connected therewith (collectively referred to hereinafter as the “Released Parties”), to the fullest extent permitted by law, from any and all charges, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants’ Use of Facility at the Play Facility, and any claims for costs, expenses and attorneys’ and expert fees associated therewith.
2. Assumption of Risk
Releasing Parties know, understand and acknowledge that the use of slides, play equipment, obstacle courses, and use or participation in any of the equipment, services, activities, or presence at Play Facility (collectively “Use of Facility”), constitutes an inherently risky recreational activity that may result in serious injury (such as paralysis and death), injury to third parties, and damage to property. Releasing Parties know, understand and acknowledge that these risks include, but are not limited to, falling off equipment, bouncing into other children, collision with fixed objects and/or people, sudden and unforeseen malfunction of equipment, and failed attempted jumps and stunts. Releasing Parties hereby assume the risk both known and unknown of personal injury or death, injury to third parties, and damage to property that arise out of or relate in any way to Participants’ past, present or future Use of Facility.
To the maximum extent allowed by law, the Releasing Parties hereby indemnify and covenant to hold harmless and defend Released Parties from and against any and all charges, passive and active negligence, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants’ Use of Facility, or based on or arising out of any breach of this Agreement, its covenants, representations, or warranties by the Releasing Parties, and any claims for costs, expenses and attorneys’/expert fees associated therewith.
4. Fitness to Participate
Participants represent that they: (i) Are in good health, and in proper physical condition to participate in the Use of Facility and ALL activities at the Play Facility; (ii) Are NOT under the influence of alcohol, illicit or prescription, or over-the-counter drugs that would in any way impair their ability to safely participate in the Use of Facility and ANY activity at the Play Facility; (iii) Do NOT have ANY preexisting conditions which would make Participants unfit to participate in the Use of Facility and ANY activity at the Play Facility. It is the sole responsibility of all Participants to determine sufficiency of health, fitness, and ability to participate in the Use of Facility and ANY activity at the Play Facility.
5. Covenant Not to Sue
Releasing Parties hereby covenant not to sue Released Parties on account of any and all charges, claims, debts, disputes, demands, suits, causes of action, rights of action, dues, sums of money, accounts, liabilities, losses, expenses and damages, absolute or contingent, known or unknown, whether or not asserted, threatened, alleged or litigated, now existing or arising in the future, at law or equity, whether caused by the negligence of Released Parties or otherwise, that arise out of or relate in any way to Participants’ Use of Facility, and any claims for costs, expenses and attorneys’ fees associated therewith.
6. Representations, Warranties, and Further Assurances
Adult represents and warrants that she/he was given ample opportunity to read and review this Participation Agreement. Adult further represents, warrants, and covenants (a) that Adult is the parent or legal guardian of the minor Participants, and that if Adult is not the parent or legal guardian of the minor, Adult has been granted actual authority to sign for and make representations on behalf of the minor for whom this waiver is signed, (b) that Adult has and will maintain adequate medical or other insurance to cover and pay for any possible injury that may occur to Participants and/or third parties (“Insurance”) that arises out of or relate in any way to Participants’ presence at the Play Facility, participation in any of the activities at the Play Facility, or Use of Facility at the Play Facility (“Injury Event”); and (c) that in the event of any Injury Event, the Insurance shall be used as the primary insurance and shall cover all costs, expenses, losses, and damages related to injuries arising from or connected in any way to Use of Facility or such Injury Event, and that Adult hereby waives any rights of subrogation. Adult further represents and warrants that he or she has read and MUST follow the rules of the Play Facility as amended from time to time, and will cause other Participants (including minor children) to follow such rules, including, without limitation, any safety video rules, rules conveyed orally, and any rules posted on signs within the Play Facility.
This Participation Agreement constitutes the entire and only agreement and understanding between the Parties with respect to the subject matter hereof and may not be altered, enlarged, or abridged except by an agreement in writing executed by all of the Parties hereto. To the extent there may have been any prior understandings between the parties, all such understandings are hereby marched into this Agreement.
8. Binding Nature of this Participation Agreement
The provisions of this Participation Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective successors, heirs, and assigns. Adult understands that Adult has the chance to consult with an attorney about this Agreement and is otherwise signing it voluntarily.
All the provisions of this Participation Agreement shall be considered as separate terms and conditions. In the event that any provision hereof is determined to be invalid, prohibited, or unenforceable by a court or other body of competent jurisdiction, this Participation Agreement shall be construed as if such invalid, prohibited, or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited, or unenforceable. Notwithstanding the foregoing two sentences, in the event that any of the provisions of this Participation Agreement should be determined to be invalid, prohibited or unenforceable, the validity, legality and enforceability of the remaining provisions contained in this Participation Agreement shall not in any way be affected or impaired thereby.
10. Choice of Law and Jurisdiction
This Participation Agreement shall be governed by and construed in accordance with the laws of the State of Vermont without regard to any conflict of law rules of another state.
11. Mediation and Arbitration
Any and all disputes, claims, or controversies arising out of or relating in any way to this Agreement, including but not limited to Participants’ Use of Facility at the Play Facility may be submitted to a formal mediation using a mediator, to whom the Parties mutually agree in writing, or, if no such agreement is possible, a mediator appointed by the American Arbitration Association. Mediation must commence within any applicable statute of limitations, and shall be deemed to commence when a Party notifies the agreed-upon mediator, in writing, of its request for mediation, the subject of the dispute, its agreement to pay any mediation fees, and the relief requested. Mediation shall be deemed to be in the nature of settlement negotiations and any dispute not otherwise satisfactorily resolved shall be subject to mandatory, final and binding arbitration. Either Party may initiate arbitration with respect to the matters submitted to mediation by notifying the other Party, in writing and within ten days after the mediation is concluded, of its demand for arbitration. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. Except as otherwise agreed in writing by the Parties or as required by applicable law, any mediation and arbitration shall be conducted in Burlington, Vermont. Similar to a judge or jury, an arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, however the scope and rules of arbitration differ, and review is limited. In the event the Parties elect not to mediate, arbitration shall be the sole and exclusive forum for resolution of the dispute, claim or controversy, and the award shall be in writing, state the reasons for the award, and be final and binding. Judgment thereon may then be entered in any court of competent jurisdiction.
ACKNOWLEDGEMENT OF ARBITRATION: THE PARTIES TO THIS AGREEMENT UNDERSTAND THAT IT CONTAINS AN AGREEMENT TO ARBITRATE. AFTER SIGNING THIS DOCUMENT, BOTH PARTIES UNDERSTAND THAT THEY WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS LAW. INSTEAD, BOTH PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR. ANY SUCH DISPUTE SHALL BE FILED ON AN INDIVIDUAL BASIS, WITH ANY DISPUTE FROM DIFFERENT PARTICIPANTS TO BE HEARD IN DIFFERENT PROCEEDINGS.
12. Attorney Fees for Breach of this Participation Agreement
In the event either Party hereto defaults in any of the covenants or agreements contained herein, including without limitation, Paragraph 11 above, the non-prevailing Party shall pay all costs and expenses, including reasonable attorneys’ fees and expert fees, incurred by the prevailing Party as a result of this default.
13. Use; Acknowledgment of the Rules
Participants understand that to be present at, or participate, in Use of Facility at the Play Facility or any portion thereof, Participants must complete all of the following: (1) sign this Agreement; (2) watch any and all safety videos; and (3) read and abide by the rules and regulations prescribed by the Play Facility. Additionally, Participants agree that Participants will ensure any guest Participant brings to the Play Facility signs Monkey Do’s standard release form and completes the other steps required for Use of Facility at the Play Facility or any portion thereof. Participants understand that Participants are responsible for themselves and for any guest or guests Participants bring to the Play Facility, and therefore agree to indemnify the Released Parties for any liability arising out of Participants’ guest’s visit to, or Use of Facility at the Play Facility or any portion thereof. All Participants MUST READ, UNDERSTAND and FOLLOW all Play Facility rules as amended from time to time. By signing this Agreement, you are representing and warranting that you have READ, UNDERSTAND and WILL FOLLOW ALL RULES as amended from time to time.
14. Video, Photo, and Image Release; Data Storage and Use
The Agreement gives Monkey Do the exclusive rights and permissions to use all media captured on the Play Facility premises, including but not limited to: security footage, photos, and video. Such information may be used for any and all purposes including but not limited to publication in both printed and electronic media, internet, websites, social media, advertisement, and other promotional uses.
In the event Participants choose to provide such data, Monkey Do may collect and store data that includes sensitive and personally identifiable information. This includes, for example, names, contact information (such as an address, e-mail, or phone number), and dates of birth. Monkey Do may use this data to help toward development of new services or to improve existing services, to provide advertising and other information to Participants (including promotional materials about special offers, new services, or other information that may be of interest to Participants), or for any lawful business purpose, or to allow Monkey Do’s business partners to do the same. Monkey Do also reserves the right to access, use, and share Participants’ personally identifying information with others for purposes of health, safety and other matters in the public interest. Monkey Do may also provide access to its database or stored data in order to cooperate with investigations or legal proceedings initiated by governmental and/or law enforcement officials, as well as private parties, including, for example, in response to subpoenas, search warrants, court orders, or other legal process.
15. Subsequent Visits
This Agreement shall apply to ALL of Participants’ future visits to Monkey Do.
IN WITNESS WHEREOF, the Participant has signed this Participation Agreement as of the Effective Date.
Any minor must have his or her parent or legal guardian sign this Agreement before that minor can participate in any activities or Use of Facility at the Play Facility. Monkey Do may rely completely on the representation made by an individual who claims to be the parent or guardian of a participant and shall not be obligated to independently verify whether or not such individual is in fact the parent or legal guardian of the participant. By signing this Agreement for yourself without a parent or guardian also signing, you are representing to Monkey Do that you are at least 18 years of age and that you agree to all of the above terms and conditions.