ASSUMPTION OF THE RISK AND WAIVER OF LIABILITY RELATING TO CORONAVIRUS/COVID-19

The Novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people.

1. Hooray Indoor Playground (“HOORAY”) has put in place preventative measures to reduce the spread of COVID-19, however, HOORAY cannot guarantee that you or the below-named persons will not become infected with COVID-19.  I Confirm / Acknowledge

2. I,(hereinafter referred to as “I”, "You" or “the undersigned”) understand that the risk of becoming exposed to or infected by COVID-19 at HOORAY may result from the acts, omissions, or negligence of myself and others, including, but not limited to, HOORAY’s employees, volunteers, and program participants and their families.   I Confirm / Acknowledge

3. By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that the named person(s) below and I may be exposed to or infected by COVID-19 by permanent disability, and death.  I Confirm / Acknowledge

4. I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to myself or the named person(s) below (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that I or the named person (s) below may experience or incur in connection with attendance at HOORAY.  I Confirm / Acknowledge

5. I sign this document on behalf of myself and the named person(s) below and hereby release, covenant not to sue, discharge, and hold harmless HOORAY, its employees, agents and representatives of and from the claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto.

Acknowledgements

1. You acknowledge that you and the named person(s) below do not have any-one living with you under any form of self-isolation as a result of an order of any government authority or as the result of a recommendation of a health professional.  I Confirm / Acknowledge

2. You acknowledge that you and the named person(s) below have not been in physical contact with anyone who has been diagnosed with the COVID-19 virus in the last 14 days.  I Confirm / Acknowledge

3. You acknowledge that you and the named person(s) below have not had anyone living with you in the last 14 days who has experienced or experiences flu-like symptoms (sore throat, fever, tiredness, cough) following overseas or interstate travel and/or physical contact with someone who has recently returned from overseas or interstate travel.  I Confirm / Acknowledge

4. You acknowledge that you and the named person(s) below are not experiencing any of the following flu-like symptoms (sore throat, fever, fatigue, or cough) at this current time.  I Confirm / Acknowledge

5. You acknowledge that it may be a requirement that we ask you of the following: wear a mask, wash your hands upon entry, apply hand sanitizer, check your temperature before entry, wash your hands before and after participating in activities.  I Confirm / Acknowledge

6. I understand and agree that this release includes any claims based on the actions, omissions, or negligence of HOORAY, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation at HOORAY.  I Confirm / Acknowledge

7. I sign this document on behalf of myself and the named person (s) above.

HOORAY INDOOR PLAYGROUND CUSTOMER RELEASE AND INDEMNITY AGREEMENT

In consideration of being permitted by HOORAY INDOOR PLAYGROUND / RIGHTSPACE KIDS LLC (“HOORAY”) to participate in its activities and to use its equipment and facilities (“Premises”), I,(hereinafter referred to as “I”, “You” or “the undersigned”), hereby agree to release, discharge, indemnify and hold harmless HOORAY, its agents, owners, members, shareholders, directors, employees, volunteers, participants, lessors, related and affiliated entities, successors and assigns (collectively, the “RELEASED PARTIES”), on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representative and estate as follows:

I, the undersigned, acknowledge that my child’s admission to and use of the Premises entails known and unknown risks that could result in physical or emotional injury, or damage to the child, myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. HOORAY activities involve many risks, including but not limited to the following: All play equipment and all things inside the Premises entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Our play equipment exposes its participants to the usual risk of cuts and bruises. Other more serious risks exist as well. Participants often fall off equipment, sprain or break wrists and ankles, and can suffer more serious injuries as well. Traveling to and from one location raises the possibility of any manner of accidents. Coming down the slides can cause serious injury. Similar risks are also inherent in soft play structure, where children and adults can be injured. Also, injuries can be caused by coming into contact with other customers or persons at the facility. HOORAY has no control or is in no way liable for any injury resulting from other minors, parents, or guardians at the facility. In any event, if you or your child is injured, you or your child may require medical assistance, at your own expense. Furthermore, HOORAY employees, including managers and volunteers, have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant’s fitness or abilities. They may give incomplete warnings or instructions, and the equipment being used might become loose, out of adjustment, or malfunction. There is also a risk that HOORAY employees may be negligent in, among other things, monitoring and supervising use of its equipment and facilities and in the maintenance and repair of its equipment and facilities.

I, the Parent or the Legal Guardian of my child, hereby understand and agree to accept the risk of bodily injury and/or property damage which the child or I may incur or cause a third party to incur as a result of our use of the Premises. WITH THIS UNDERSTANDING AND FOR THE CONSIDERATION OF ALLOWING THE CHILD ADMISSION TO AND USE OF THE PREMISES, THE UNDERSIGNED AGREES TO RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS HOORAY, ITS OFFICERS, AGENTS, ASSISTANTS AND EMPLOYEES, AND ALL OF THE PERSONS, FIRMS, ORGANIZATIONS, OR CORPORATIONS IN PRIVITY WITH THEM, WHETHER NAMED HEREIN OR NOT (THE “PARTIES RELEASED”) FROM AND AGAINST ANY AND ALL

CLAIMS, CAUSES OF ACTION, INJURIES, SUITS, OR JUDGMENTS ARISING FROM, OR IN CONNECTION WITH THE CHILD’S PRESENCE AT HOORAY, REGARDLESS OF THE PARTIAL OR SOLE FAULT OR NEGLIGENCE OF THE PARTIES RELEASED. THE UNDERSIGNED AGREES TO THIS INDEMNIFICATION AND HOLD HARMLESS FOR MYSELF, MY SUCCESSORS, ASSIGNS, HEIRS, EXECUTORS AND ADMINISTRATORS, AND ANY OTHER PERSON OR ENTITY(IES) WHO/WHICH MAY HAVE A CLAIM BASED UPON THE CHILD’S PERSONAL INJURIES AND/OR PROPERTY DAMAGE, CLAIMS FOR CONSORTIUM BY ANYONE ALLEGING A RELATIONSHIP THAT WOULD GIVE RISE TO SUCH A CAUSE OF ACTION, ANY INDIVIDUAL CLAIMING A PARENTAL, CUSTODIAL, OR POSSESSORY RELATIONSHIP WITH THE CHILD, MEDICAL EXPENSES OR LIENS OF ANY HOSPITAL(S), MEDICARE, MEDICAID, HEALTH CARE PROVIDER, INSURANCE CARRIER (INCLUDING, BUT NOT LIMITED TO, LIFE, HEALTH, OR DISABILITY) PAYMENTS FOR DAMAGES TO OTHER PERSONS OR ENTITIES, FOR CONTRIBUTION OR INDEMNITY, COURT COSTS, ATTORNEYS’ FEES, OR OTHER EXPENSES OF LITIGATION, WHICH HAVE BEEN OR MAY BE AT ANY TIME IN THE FUTURE MADE AGAINST THE PARTIES RELEASED BECAUSE OF, OR DIRECTLY RESULTING FROM, INJURIES, DAMAGES, OR OTHER LOSSES SUSTAINED BY THE CHILD AS A RESULT OF ADMISSION TO AND USE OF THE PREMISES. I have read and understand the information listed above and the risks associated with the admission to and use of the Premises. I understand that in the unlikely event my child is injured during the use of the Premises, HOORAY will not cover the medical costs, and that my personal accident or medical insurance will be required to cover expenses. In the event that my child sustains injury or illness while on the Premises, I hereby authorize any emergency first aid, medication, medical treatment or surgery deemed necessary by licensed medical personnel. I also give my permission for attending medical personnel to execute on my behalf my permission forms or other necessary medical documents and to act on my behalf if I am not immediately available to do so.

I UNDERSTAND THIS IS A RELEASE OF LIABILITY THAT IS VALID FOREVER, and will apply to all current and future use of the Premises. I understand that this RELEASE OF LIABILITY will prevent me, my child, my heirs or my estate from bringing any action at law, suit in equity, or other jurisdictional proceeding or making any claim for damages, injury or death in the event of damage, injury, or death arising from admission to and use of the Premises.

I FURTHER AGREE, PROMISE AND COVENANT TO HOLD HARMLESS AND TO INDEMNIFY Releasees, and all other persons or entities from all defense costs, including attorneys’ fees, or any other costs incurred in connection with claims for mental or bodily injury, wrongful death, or property damage that may be filed by me, my child, my heirs or my estate. Such indemnity and defense obligation shall further extend to any claim, loss, or lawsuit, which alleges that I or my child negligently or intentionally caused any injury, death or damage to any other third parties while on the Premises.

INDEMNITY RIGHTS AND OBLIGATIONS: In the event any Claim shall be brought against HOORAY by reason of any matter for which HOORAY is indemnified hereunder, the undersigned shall, upon notice from HOORAY, at the undersigned’s sole cost and expense, resist and defend the same with competent legal counsel approved by HOORAY; provided, however, that the undersigned shall not admit liability in any such matter on behalf of HOORAY without HOORAY’S written consent and provided further that HOORAY shall not admit liability for, nor enter into any compromise or settlement of, any Claim for which it is indemnified hereunder, without the prior written consent of the undersigned. HOORAY shall give the undersigned prompt notice of the making of any Claim or the commencement of any Claim or other proceeding covered by the provisions of this Agreement. Nothing herein shall be deemed to prevent HOORAY from participating in the defense of any Claim by its own counsel at its own expense. IT IS THE INTENT OF THE PARTIES THAT ALL INDEMNITY OBLIGATIONS HEREIN BE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR THE NEGLIGENCE OF HOORAY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONTRACTUAL, OR CONCURRENT, ACTIVE OR PASSIVE, INCLUDING GROSS NEGLIGENCE AND STRICT LIABILITY.

INSURANCE. I certify that I have adequate insurance to cover any injury or damage that I or the minor(s) under my care may cause or suffer while at HOORAY, or alternatively, I agree to bear the costs of such injury or damage myself. I further certify that I am willing to assume the risk of any medical or physical condition that I or the minor(s) under my care may have.

ENTIRE AGREEMENT, SEVERABILITY AND VENUE. I understand that this is the entire Agreement between the undersigned and HOORAY, and that it cannot be modified or changed in any way by the representations or statements of HOORAY or any employee or agent of HOORAY, or by the undersigned. I understand and agree that this Agreement is severable and that if any clause is found to be invalid, the balance of the contract will remain in effect and will be valid and enforceable. I agree that any action will be brought in a {court/arbitration} in the County of Fort Bend, State of Texas. Any disputes will be subject to and determined under the laws of the State of Texas.

NO REPRESENTATION BY OWNER. I acknowledge that HOORAY makes no representation as to the condition of the Premises or the safety of any structures or equipment that may be used at the Premises. I accept for myself and my child(ren) that the use of the Premises is in “AS IS” condition. I acknowledge and agree that I am not relying upon any representation or statement by HOORAY or HOORAY’S officers, agents, assistants and employees, or representatives regarding this agreement or the Premises, except to the extent such representations are expressly set forth in this agreement.

GOVERNING LAW AND VENUE. This Release and Indemnity Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. I agree that any action arising out of this Release and Indemnity Agreement must be brought exclusively {in any state or federal court located in Texas, Fort Bend County/in the manner described in the Arbitration Agreement attached hereto}.

WAIVER. No waiver of any term or right in this Release and Indemnity Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of any party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this agreement thereafter.

SURVIVAL. Any provision of this Release and Indemnity Agreement providing for performance by either party after termination of this Agreement shall survive such termination and shall continue to be effective and enforceable.

SEVERABILITY. If any provision or portion of this Release and Indemnity Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.

ENTIRE AGREEMENT; MODIFICATION; BINDING EFFECT. This Agreement is the entire Agreement between the parties with respect to the subject matter hereof and supersedes any prior Agreement or communications between the parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to this Agreement shall be valid unless in writing and signed by authorized representatives of the parties. This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the parties.

AFFIDAVIT OF PARENT OR LEGAL GUARDIAN

I, the undersigned, declare that I am the parent of, or the legal guardian of, the below named minor, and have the capacity to execute documents on behalf of such minor. I understand that as a condition to admission to and use of the Premises, the parent or the legal guardian of the minor participant must sign certain legal documents, including but not limited to this Release of Liability and Indemnity Agreement. I am signing this document, freely, without any fraud or duress and acknowledge that I have read and understand the same.

In the event that it is determined that I am not the parent or legal guardian of the minor, or did not have the legal capacity to execute the documents on behalf of said minor, then I agree to DEFEND AND INDEMNIFY Hooray Indoor Playground and its officers, agents, assistants and employees, each of their lessors, parent companies, subsidiaries, related companies and business concerns, past and present, each of them, if any litigation is instituted, as a result of any injury or death or claim for damage arising out of, relating to, or in any way connected with the minor’s admission to and use of the Premises. I understand that this indemnity provision is in addition to (and not in lieu of) any other indemnity provision found in this document.

ARBITRATION AGREEMENT

RESOLUTION OF CERTAIN INJURY-RELATED DISPUTES. HOORAY INDOOR PLAYGROUND, INC. (hereinafter referred to as “HOORAY”) has adopted a mandatory policy requiring that you comply with the following dispute resolution requirements:

DISPUTE RESOLUTION REQUIREMENT: Any and all claims or disputes that cannot otherwise be resolved between HOORAY and undersigned are subject to the dispute resolution program described herein. This program is the only method for resolving any such claim or dispute.

CLAIMS COVERED BY THIS REQUIREMENT

This requirement applies to:

Ø Any legal or equitable claim or dispute relating to enforcement or interpretation of the arbitration provisions in this Release and Indemnity Agreement or this arbitration requirement; and 


Ø Any legal or equitable claim by or with respect to the undersigned and any child of the undersigned for any form of physical or psychological damage, harm or death which relates to an accident, disease, or cumulative trauma (including, but not limited to, claims of negligence or gross negligence, any claims for assault, battery, negligent hiring/training/supervision/retention, emotional distress, or violation of any other noncriminal federal, state or other governmental common law, statute, regulation or ordinance in connection with any injury, regardless of whether the common law doctrine was recognized or whether the statute, regulation or ordinance was enacted before or after the effective date of this Release and Indemnity Agreement. 
This includes all claims that you have now or in the future against HOORAY, its officers, directors, owners, representatives, agents, subsidiaries, affiliates, successors, or assigns. 
The determination of whether a claim is covered by these provisions will also be subject to mediation and arbitration under this dispute resolution requirement. Neither the undersigned nor your spouse, children, or parents will be entitled to a bench or jury trial on any claim covered by this dispute resolution requirement. This dispute resolution requirement applies to you without regard to whether you have completed and signed the Release and Indemnity Agreement. These provisions also apply to any claims that may be brought by your spouse, children, parents, and their or your beneficiaries, representatives, executors, administrators, guardians, heirs or assigns. The dispute resolution provisions of this Agreement will be the sole and exclusive remedy for resolving any such claim or dispute. "MEDIATION PRIOR TO ARBITRATION " If you have a claim or dispute, you must first seek resolution of the problem through mediation before you request arbitration. 

REQUIRED NOTICE OF ALL CLAIMS

Mediation: When you seek mediation, you must give written notice to HOORAY. You must send written notice to Hooray Indoor Playground, Inc., 3750 S. Mason Rd. #400 – 500, Katy, TX, 77450.

Arbitration: If the issue is not resolved through mediation, the undersigned must request arbitration. When you seek arbitration, you must give written notice of any claim to the other party within the applicable statute of limitations. The day the act complained of occurred will be counted for purposes of determining the applicable period. If such notice is not given, the claim shall be void and deemed waived.

Mediation Procedures

Mediation under this Section will be handled by a mediator appointed by the American Arbitration Association (“AAA”) or selected by agreement, who is skilled in handling conflicts. If the parties cannot agree to a solution through a mediator, either party may request arbitration.

Arbitration Procedures

Any arbitration under this arbitration requirement will be administered by the American Arbitration Association (“AAA”) under its then-current Arbitration Rules and Mediation Procedures, or selected by agreement. Unless otherwise agreed to in writing by the parties, the arbitrator selected by the parties in accordance with those rules (1) shall be an attorney licensed to practice in the State of Texas with experience in personal injury litigation, and (2) shall be selected from a panel of arbitrators located in Fort Bend County, Texas. If the arbitrator so selected becomes unable to serve for any reason, the parties shall again go through the same selection process. The arbitrator will apply the substantive law (and the laws of remedies) of Texas (other than the Texas General Arbitration Act), or federal law, or both, depending upon the claims asserted. The arbitrator will provide brief findings of fact and conclusions of law. The final decision and the arbitration award, if any, shall be made consistent with remedies available under Texas statute and case law. All decisions rendered by an arbitrator under this arbitration requirement will be kept confidential by all parties, and will not serve as binding, legal precedent with respect to subsequent claims or disputes brought under this arbitration requirement.

Payment of Fees and Expenses

Ø Mediation: Cost of mediation will be split equally between both sides payable in advance to the mediator.

Ø Arbitration: The filing fees to initiate arbitration shall be paid by the party requesting same.

o Either party may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings;

o Each party will also be responsible for their own attorney’s fees, if any. However, if any party prevails on a statutory claim which allows the prevailing party to be awarded attorney’s fees, or if there is a written agreement for providing such fees, the arbitrator may award reasonable attorney’s fees to the prevailing party.

o Notwithstanding the above provisions, the arbitrator will assess the AAA filing fee, arbitrator fees and expenses, and attorney’s fees against the party determined by the arbitrator to be the non-prevailing party.

Ø If either party pursues a claim covered by this dispute resolution requirement by any means other than the dispute resolution provisions of this Agreement, the responding party will be entitled to dismissal of such action.

Interstate Commerce

HOORAY is engaged in transactions involving interstate commerce (for example, purchasing goods and services from outside Texas which are shipped to Texas and providing goods and services to customers from other states). The Federal Arbitration Act will govern the interpretation, enforcement, and proceedings under this arbitration requirement. Unless contrary to applicable law, any lawsuits seeking to enforce or vacate an arbitration award shall be brought in the United States District Court for the Southern District of Texas, Houston Division.

Binding Effect

This arbitration requirement for resolving claims by final and binding arbitration is equally binding upon, and applies to any claims that may be brought by HOORAY and the undersigned, including you and your spouse, children, parents, beneficiaries, representatives, executors, administrators, guardians, heirs or assigns. This binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute. This arbitration requirement applies to all participants without regard to whether they have completed and signed the Release and Indemnity Agreement. Adequate consideration for this arbitration requirement is represented by, among other things, permission to enter the HOORAY Premises and use of its facilities by you, your spouse, or your children.