THIS AGREEMENT RESULTS IN YOU WAIVING RIGHTS AND POTENTIAL RIGHTS, ON YOUR OWN BEHALF AND ON BEHALF OF SOMEONE FOR WHOM YOU ARE AUTHORIZED TO MAKE SUCH DECISIONS AND AGREEMENTS. THE PERSON WHOSE RIGHTS ARE BEING WAIVED AND RELEASED ARE THE “MEMBER RELEASORS”. YOU SHOULD NOT EXECUTE THIS AGREEMENT UNTIL AND UNLESS YOU COMPLETELY UNDERSTAND IT AND UNRESERVEDLY AND IRREVOCABLY CONSENT TO IT. THIS AGREEMENT IS LEGALLY BINDING.
Good Judgment and Good Conduct by Member. Member warrants and represents that Member is capable of using and shall use good judgment with regard to Member’s conduct and Member’s participation in activities (the “Activities”) and/or Child Watch services (the “Services”) at or via Fitness Journey, LLC, d/b/a Burn Boot Camp (the “Company”). Most of the Activities shall involve some level of physical exertion, sometimes significant physical exertion, and Member must and shall decide to participate in Activities only if and to the extent Member can reasonably participate and is comfortable doing so. Member promises to not participate in Activities or Services if Member is uncomfortable or unsure regarding the safety or appropriateness of participating. Member will otherwise act in a manner which is respectful and safe toward others during and relating to Activities and Services at or via the Company and when participating in or being present at any Company sponsored, organized, or affiliated event or program and when on property owned or controlled by Company.
Appropriate and Sufficient Health, Medical, Physical, Mental, and Emotional Condition. Member warrants and represents that Member is in appropriate and sufficient good health and medical, physical, mental, and emotional condition to participate in the Activities that Member will be participating in at or via Company and that Member has no problems or issues which would endanger Member or others due to such participation. Member further warrants and represents that Member will not utilize the Services except when the child to be cared for is in good health, does not require any medications to be provided while the Services are being utilized, and does not pose an elevated risk toward others, including other children.
Informed Consent and Assumption of Risk. Participating in Activities at or via the Company will by the very nature of said Activities lead to a certain level of physical exertion and physical activity. Member is only participating after giving informed consent, including by way of this Agreement. By volunteering to participate in the Activities, Member assumes the risk of any loss, damage or injury, including death, which may result from the Activities, including as a result of actions or inactions by the Company, by other activity participants, or by third parties. If Member is not aware of the risks which may come by participating in the Activities, Member shall not participate until and unless Member has sought and received information from the Company which allows Member to have a fair and reasonable opportunity to know and understand said risks.
As to Services, Member recognizes and accepts that: Services may be provided by persons who are not child care professionals or otherwise licensed or permitted relating to child care; that the Company is not a licensed or permitted or certified child care facility; the Child Watch services are short-term, drop-in, basic in nature and may only be utilized while Member is present on the premises; and even properly monitored children can and sometimes do end up with bumps, bruises, scrapes, and sometimes more serious injuries or conditions.
Communicable Diseases. Participating in the Activities and/or the Services will also invariably place Member in close proximity with other individuals and in contact with surfaces or areas that may have been handled, touched, or come into contact with other individuals. Due to the nature of the Activities and the Services, as well as the participation of other persons in the Activities and the Services, there is an inherent risk of the transfer of communicable diseases that the Company cannot eliminate. The Company cannot guarantee that (i) recommended social distancing will be followed at all times during the Activities and the Services or (ii) surfaces and other areas or items the Member may come in contact with will be free of all viruses, bacteria, or other contaminants. Member acknowledges that cases of the novel coronavirus (“COVID-19”) have been confirmed throughout the United States, including in Celebration, Florida and surrounding areas. Member further acknowledges that Member fully understands and assumes the risk that Member may be exposed to and contract COVID-19 or another communicable disease, which may result in illness, injury and/or death of the Member or third persons to whom the Member further communicates the disease, by participating in the Activities and/or the Services, including as a result of actions or omissions, including negligent actions or omissions, by the Company, any employee or agent of the Company, or any third person, including other participants in the Activities or the Services.
Member represents and warrants to the Company that neither Member nor any child or other person that Member brings to the Company’s physical location(s) will participate in the Activities or the Services or enter the Company’s physical location(s) if he or she (i) is experiencing symptoms of COVID-19, including, without limitation, fever, cough, or shortness of breath or (ii) has a suspected or diagnosed case of COVID-19 or any other communicable disease. Additionally, Member represents and warrants to the Company that neither Member nor any child or other person that Member brings to the Company’s physical location(s) will participate in the Activities or the Services or enter the Company’s physical location(s) if he or she, within the preceding 14 days, has (1) visited an area subject to a CDC Level 3 Travel Health Notice, (2) been exposed to any person who had visited an area subject to a CDC Level 3 Travel Health Notice in the 14 days preceding the exposure, or (3) been exposed to any person who has a suspected or diagnosed case of COVID-19.
Waiver and Release of Liability and Related Covenant. Member, on behalf of herself or himself and her or his minor child(ren), personal representatives, heirs, devisees, assigns and anyone else who can claim or recover through Member (collectively, the “Member Releasors”), hereby agrees to waive, relinquish, discharge, and release the Company or its parent, sister, affiliated and/or subsidiary corporations and related entities, their members, owners, officers, directors, partners, employees, consultants, contractors, advisors, agents, insurers, attorneys and volunteers (collectively, the “Company Releasees”), and hold the Company Releasees harmless from any and all rights, claims of injury, demands, causes of action, damages, liabilities, or loss that the Member Releasors may have or come to have arising out of, connected with, or in any way related to the Activities or Services at or via the Company or Member Releasors participating in or being present at any Company sponsored, organized, or affiliated event or program or being on property owned or controlled by Company (collectively, “Claims”). Member further covenants not to sue or otherwise bring a claim or complaint against Company for any of the matters waived and released herein. This paragraph should not be interpreted to attempt to waive or release rights or claims which, by law, cannot be waived or released in this fashion.
Limitations on Damages in Case of Liability. Should Company somehow be found liable for a Claim despite this Agreement, Member agrees that the maximum damages Company shall be liable for is the total amount Member has paid to Company in the twelve (12) months preceding the event on which such Claim is based.
Company Indemnified, Defended, and Held Harmless. Member hereby agrees to indemnify, defend, and hold harmless the Company Releasees, at no cost to Company, as to any claims or causes of action against Company arising out of or related to Member Releasors’ participation in the Activities or utilization of the Services or related to any action or inaction of Member Releasors while on Company’s property or while participating or being present in any Company sponsored, organized, or affiliated event or program.
This Agreement’s Interpretation, Severability, Reformation, Completeness, and Finality. The parties agree that the language of this Agreement shall not be interpreted against either party as the “drafter” and that both parties have similar bargaining power here, including since Member can choose to join a different organization which assists with exercise and physical conditioning. If any part of this Agreement is found to be void, illegal, or otherwise unenforceable and if the court is able and willing to do so, the parties hereby agree that a court with appropriate jurisdiction over the matter may reform or otherwise modify the Agreement if necessary to best accomplish the intent of the Agreement as stated herein. If the Agreement is not so modified, then the offending provision(s) shall be stricken but the remainder of the Agreement shall remain in effect and best interpreted to accomplish the intent of the Agreement as stated herein. The parties affirm that this Agreement is final and complete, and supersedes any other information which contradicts this Agreement, and cannot be amended except by further written agreement of the parties which is clearly intended to amend this Agreement.
Resolution of Disputes. Company does not expect to have any disputes with Member, but this issue is addressed in case that does occur. Should there be any disputes between Member and Company regarding this Agreement or any other aspect of the relationship between Member and Company which results in a legal or quasi-legal action being initiated, Florida laws and rules shall apply, without giving effect to any choice of law provision thereof. Jurisdiction and venue for any legal or quasi-legal action shall only be with a state court in Osceola County, Florida. In any action or proceeding to enforce any provision hereof or for damages by reason of an alleged breach of any provision of this Agreement, the prevailing party shall recover its legal costs and fees relating to that dispute, including attorneys’ fees and including any costs of collection, whether pre-litigation or otherwise.
Member’s Agent Executing on Behalf of Member. If the Member is unable to execute this document of his or her own accord for whatever reason, and it is instead being executed by someone on behalf of the Member (the “Member’s Agent”), the Member’s Agent hereby warrants, represents, and swears that (s)he has the authority to execute this legally binding agreement on behalf of the Member and that Company absolutely and materially relies on that warranty, representation, and sworn indication.
