WAIVER OF LIABILITY, RELEASE, HOLD HARMLESS, AND INDEMNIFICATION AGREEMENT
DH Farms LLC and Bounce Town X Bounce Park
READ CAREFULLY – THIS IS A LEGAL DOCUMENT THAT AFFECTS YOUR RIGHTS
BY SIGNING BELOW, I AGREE ON BEHALF OF MYSELF AND THE MINOR CHILD(REN) NAMED BELOW, IF ANY, (“MINOR CHILD(REN)”) ACKNOWLEDGE THAT I/WE AM/ARE VOLUNTARILY ENTERING PARTICIPATING IN ACTIVITIES AT THE HARVEST NIGHTS FESTIVAL WITH IT’S INFLATED PLAY FACILITY (“EVENT”) OWNED AND OPERATED BY DH FARMS LLC, AN ARIZONA LIMITED LIABILITY COMPANY (THE “OWNER”), LOCATED AT 2209 N 99th Ave149TH AVE, PHOENIX, ARIZONA 85037(TOGETHER WITH ALL APPURTENANT SEATING AREAS, TURF AREAS, QUEUE AREAS, CANOPIES, POLES, ANCHORS, FANS, LIGHTING AND RELATED EQUIPMENT, REFERRED TO HEREIN AS THE “EVENT”) AND THAT I FULLY UNDERSTAND AND AGREE TO THE TERMS OF THIS WAIVER, RELEASE, AND INDEMNIFICATION AGREEMENT (THIS “AGREEMENT”). I UNDERSTAND THAT THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND THAT BY SIGNING IT, I AM GIVING UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE FOR INJURIES, DAMAGES, OR LOSSES I AND/OR MY MINOR CHILD(REN) MAY INCUR AS A RESULT OF ENTERING THE EVENT, INCLUDING INJURIES RESULTING FROM NEGLIGENCE OF THE OWNER, THE CITY OF PHOENIX, AND OTHER RELEASED PARTIES (AS DEFINED BELOW).
PLEASE READ CAREFULLY AND, IF YOU FULLY UNDERSTAND AND AGREE TO THE TERMS SET FORTH HEREIN, CHECK THE BOX FOR EACH SECTION AND SIGN BELOW. BY CHECKING EACH BOX, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO THAT SECTION.
IN ADDITION, EACH PARTICIPANT MUST READ ALL SIGNS POSTED AT ENTRANCES AND WITHIN THE EVENT, AND ALL SUCH SIGNS ARE INCORPORATED INTO THIS WAIVER BY REFERENCE. (When signing for any Minor Child(ren), the responsible adult must ensure those Minors for whom they are signing follow all posted instructions, as well as instructions from attendants.)
1: Covered Activities
II understand and acknowledge that the Harvest Nights Festival includes a wide range of attractions and activities, which may include without limitation, Corn maze, Pumpkin trail, Pumpkin bowling, Hay maze, Human hamster wheel, Large Farm Equipment and machinery, Photo ops with old rusty cars trucks and equipment, Culvert swings, Pumpkin gaming boards, S’mores pit, Hot dog pit, Giant bounce park, Giant bounce pads, Hay ride, Farm animals, Highland cows, Watussi bull, Pumpkin and Cookie Decorating, Pumpkin sling shots, live entertainment, Flavors of fall- food and beverage areas, Food Trucks and Mercantile/country store with vendor booths with shopping and services such as temporary tattoos and face painting and bounce park.
I further understand that participation in these and other activities involves inherent and/or obvious risks, including but not limited to falls, collisions, equipment malfunction or failure, pinch or crush injuries from moving parts, improper use of equipment, and hazards associated with operating heavy machinery, physical exertion, contact with other participants, and exposure to outdoor conditions such as heat, cold, dust, and uneven surfaces. These risks can and occasionally do result in property damage, illness, serious injury, permanent disability, paralysis, or death, even when reasonable care is taken. I acknowledge that such risks may result from my own actions or inactions, the actions or inactions of others, or from the negligence of the Owner, the City of Phoenix, and other Released Parties as defined in this Agreement.
By signing this Agreement, I voluntarily choose to enter the Event and to permit the Minor Child(ren) to voluntarily choose to enter and participate in the Event, and I voluntarily choose to accept for myself and the Minor Child(ren) full responsibility for all such risks, whether foreseeable or unforeseeable.
2: Disclosure and Acknowledgment Regarding Covid-19 and Other Diseases:
I am aware of the highly contagious nature of bacterial and viral disease, including the 2019 novel coronavirus disease and its constantly changing variants (“COVID”) and the risks that I, or those on behalf of who I am signing, may be exposed to or contract these and other diseases from participation in the activities available at the Bounce Park, which could result in serious health conditions, including sickness and death. Therefore, I and the Minor Child(ren) for who I am signing: (1) shall practice social distancing and trying to maintain where possible six feet between individuals in all areas of the Bounce Park; (2) represent and warrant that we do not have symptoms of COVID, such as feeling sick, coughing, sneezing, shortness of breath, or fever; (3) represent and warrant that we do not live with and have not visited, within the past fifteen (15) days, a person or family member that has been diagnosed with or suspected of having COVID; (4) consent to having my and the Minor Child(ren)’s temperature checked upon entering the Bounce Park.
I acknowledge for myself and for the Minor Child(ren) that participation at the Event and Bounce Park is an active and participatory recreational activity which includes numerous features that the participants may not face in their usual life’s activities. While fun is the goal of the Bounce Park, participation at Bounce Park may result in physical or mental injury, including but not limited to serious injury, illness, disease, fractures, dislocations, paralysis permanent disability or death.
3: Acknowledgement of Risks:
I expressly, unequivocally and voluntarily acknowledge that I: (A) have read and understood this Agreement and the disclosure of risks contained herein, (B) have observed any and all posted signs relating to the Bounce Park activities, (C) have the opportunity to ask the Bounce Park attendants any questions that I have about the Bounce Park and associated risks, (D) I have the opportunity to inspect the structure, facilities, equipment, and areas to be used, as well as watch and observe others participate in the Bounce Park activities, and (E) represent and warrant to the Owner that I and each of the Minor Child(ren) have the requisite physical fitness, athletic ability, mental and emotional stability, balance, coordination, skill, and good judgment to participate in the Bounce Park activities, appropriately respond to cautions by Bounce Park attendants, and do not suffer from any physical
3: Physical Condition and Safety Rules
I certify that I am 18 years old or older. I certify that I and the Minor Child(ren) are in good health and have no medical, physical, or psychological conditions that would prevent safe participation.
I understand and agree that:
(a) NECK, BACK, SHOULDER INJURIES, HIPS AND LEG INJURIES OR CONDITIONS OR HEART OR LUNG PROBLEMS SHOULD NOT PARTICIPATE. PREGNANT WOMEN ARE PROHIBITED FROM PARTICIPATING DUE TO THE RISK OF, AMONG OTHER THINGS FALLING, IMPACT COLLISIONS, TOO MUCH PHYSICAL ACTIVITY AND ABDOMINAL TRAUMA;
(b) participants will be exposed to inherent and other risks (including obvious and non-obvious risks) associated with participation in Bounce Park activities, including, but not limited to uneven, irregular, changing, bouncing and shifting participation inflatable surfaces and transitions to non-inflatable surfaces, strenuous body movement and physical exertion, improper use or possible malfunction of equipment, falling or being knocked down, and contact or collisions with the ride surface, barrier walls, other participants, including small children that may be hard to see or who are acting unpredictably, and related machinery or parts;
(c) as with any physical activity, there are risks known and unknown. Therefore, it is advised that I should consult with a physician before I or the Minor Child(ren) participate. If you have any questions about my health risks or the health risks for any Minor Child(ren), it is my responsibility to ask the questions of the appropriate persons that know my health condition, or that of the Minor Child(ren), including physicians or family members;
(d) participants may sprain, pull, break or otherwise seriously externally or internally injure their head, face (including nose and teeth/jaw), neck, torso, spine, arms, wrists, hands, legs, ankles, feet or other body parts as a result of falling off the installations or other equipment, landing improperly on the installations or other equipment, or making contact with other participants;
(e) participants may fall on each other, resulting in broken bones and other serious injuries, and participant body movements (whether planned or unplanned) can create a rebound effect and lead to unpredictable body movements and anticipated or unanticipated bodily contact, any, or all of which can lead to serious injury;
(f) traveling to and from installations and equipment can result in similar physical injury (even if the participant is not engaged in the activity at that time);
(g) observing, standing, sitting, or taking photographs within or near the Bounce Park can result in similar physical injury (even if the observer is not himself or herself participating at the time); and
(h) participation during reduced or altered lighting events can affect depth perception and visibility and may cause me and/or the Minor Child(ren) to fall, slip, misstep, collide with other participants, or collide with installations and equipment which can result in a greater risk of serious physical or emotional injury, paralysis, or death.
4: Assumption of Risks:
I knowingly and voluntarily assume all risks of any kind associated with the Event, whether known or unknown, foreseeable or unforeseeable, and whether caused in whole or in part by the negligence of the Event Organizer, the City of Phoenix, or any of the Released Parties (as defined below). I understand that this assumption of risk is a material part of this Agreement and a condition of my and the Minor Child(ren) being permitted to enter and participate in the Event.
Despite the risks involved with participation at Bounce Park, including, but not limited to relating to the use of the Bounce Park inflatable equipment, I, on behalf of myself and the Minor Child(ren), EXPRESSLY AND VOLUNTARILY AGREE, COVENANT AND PROMISE TO ACCEPT AND ASSUME ALL RESPONSIBILITIES, AND RISK FOR INJURY that might be associated with participation at the Bounce Park, be it of the inflatable surfaces, the activities or in and around the equipment, including the alleged negligence or wrongdoing of other participants, the Owner and its employees, instructors, attendants and agents, as well as negligence, failure to warn, product defect, installation defect and strict products liability of the Released Parties (as defined below). I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the Bounce Park activities, which I further agree is for recreational purposes and entering and participating is completely voluntary. I acknowledge and agree that, while the activities that take place at the Bounce Park facility are monitored generally by Bounce Park facility employees/attendants, it is not feasible for such employees to monitor the activities and actions of all participants at all times or all participants simultaneously. Furthermore, Bounce Park facility employees have difficult jobs to perform. They seek to promote safety, but they are not infallible. They might be unaware of a participant’s health or abilities. They may give incomplete warnings or instructions, and the installations, activity stations, rides, displays, and other equipment being used might malfunction or have defects.
5: Waiver and Release
In consideration for being permitted to enter and participate in the Event, I, on behalf of myself, my heirs, executors, administrators, assigns, and anyone claiming through me, and on behalf of the Minor Child(ren) and their respective heirs, executors, administrators, assigns, and anyone claiming through the Minor Child(ren), hereby fully and forever waive and release the Owner and its owners, members, managers, officers, employees, contractors, volunteers, agents, sponsors, vendors, exhibitors, and affiliates; the owner(s) of the premises on which the Event is held; and the City of Phoenix, Arizona (collectively, the “Released Parties”) from any and all claims, demands, actions, causes of action, damages, losses, liabilities, costs, or expenses of any kind or nature (collectively, “Claims”), whether at law or in equity, which arise out of or relate in any way to my or any Minor Child(ren)’s attendance at or participation in the Event or any activities therein.
This waiver and release includes, without limitation, any and all Claims for bodily injury, illness, property damage, wrongful death, loss of consortium, and any other injury or loss, whether caused by the negligence of any Released Party or otherwise. I understand and agree that this waiver and release is intended to be as broad and inclusive as permitted by Arizona law and applies to any and all injuries and damage occurring during and/or after entry into the Bounce Park and participation in the Event and any activities therein so long as such injuries and/or damages arise out of or are related to such entry or participation. in the Event.
6: Indemnification
I agree to defend, indemnify, and hold harmless the Owner, the City of Phoenix, and all other Released Parties for, from and against any and all Claims, including attorneys’ fees and costs, arising out of or in any way related to (a) my or the Minor Child(ren)’s entry and participation in the Event or presence on the Event premises; (b) my violation of any Event rules or applicable laws; and/or (c) any acts, omissions, or conduct by me or any Minor Child(ren) that cause injury, damage, or loss to any person or property.
This indemnification obligation applies even if the Claim is alleged to have been caused in whole or in part by the negligence of any Released Party, but does not apply to Claims resulting solely from the gross negligence or willful misconduct of a Released Party.
7: Emergency Medical Consent
I understand and acknowledge that medical emergencies may occur during the Event. In the event of injury or illness, I hereby consent to and authorize, for myself and on behalf of the Minor Child(ren), the provision of emergency first aid, medical treatment, or transportation to a medical facility as deemed necessary by Event personnel, emergency responders, or medical professionals.
I understand and agree that I am solely responsible for any and all costs and expenses associated with such medical care or transportation, and I release the Released Parties from any liability for the selection, provision, or failure to provide such care. I acknowledge and agree that neither the Owner nor any of the other Released Parties assumes any duty to provide such care or transportation.
8: Media Release
I understand that photographs, video recordings, and other images or audio recordings may be taken while I and Minor Child(ren) are at the Event by the Owner and/or its affiliates and representatives. I hereby grant to the Owner and its affiliates and representatives the irrevocable right and permission to record, possess, use, reproduce, distribute, display, and publish my and/or the Minor Child(ren)’s name, image, likeness, and voice in any media, whether now known or later developed, for any lawful purpose including marketing, advertising, and promotional materials, without compensation to me.
I waive any right to inspect or approve the finished product or any use to which it may be applied. To the maximum extent allowed under applicable law, I release the Released Parties from any and all Claims and any other liability in connection with any such recordation, possession, use, reproduction, distribution, display, and/or publishing.
9: Governing Law, Venue, and Severability
This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of law principles. Any claim or dispute arising out of or related to this Agreement or my or the Minor Child(ren)’s entry or participation in the Event shall be brought exclusively in the state or federal courts located in Maricopa County, Arizona, and I hereby consent to the jurisdiction and venue of such courts.
If any provision of this Agreement is determined to be invalid or unenforceable under applicable law, that provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.
10: Entire Agreement; Binding Effect; Modification
This Agreement constitutes the entire understanding between the parties with respect to the subject matter herein and supersedes any prior or contemporaneous oral or written agreements, promises, or representations made by any party or by any employee, agent, or representative of the Owner regarding participation in the Event.
This Agreement is binding upon and shall inure to the benefit of the undersigned and the Minor Child(ren) and their respective heirs, executors, administrators, personal representatives, successors, and assigns, as well as the Owner and its successors and assigns.
No provision of this Agreement may be waived, altered, or modified except in a written document signed by both the Participant (or their parent/guardian, if applicable) and an authorized representative of the Owner. No oral statements or representations shall be effective to modify this Agreement.
I acknowledge that physically signing or checking each box above and electronically signing below or proceeding to ticket checkout and purchase has the same legal effect as signing a paper document and initialing each section individually, and shall be my legal assent and agreement to this Agreement and all terms, conditions, waivers, releases, and other provisions set forth herein.
