This is a release of liability. By SIGNING THIS AGREEMENT, you acknowledge that you have read and understood the disclosures of risks, voluntarily and expressly accept and assume those risks, accept full responsibility for your own safety, and agree to be bound by all terms of this Agreement. This Release affects your legal rights – please read it carefully.
PARTICIPATING ON OR ENGAGING IN ACTIVITIES IN PROXIMITY TO THE PARK (AS DEFINED BELOW) MAY RESULT IN DAMAGE TO PROPERTY, PHYSICAL OR MENTAL INJURY, ILLNESS OR DISEASE, OR DEATH. SOME ACTIVITIES AT FLIP SIDE ARE CONSIDERED EXTREME SPORTS AND HIGH RISK RECREATIONAL ACTIVITIES.
This Agreement is between me and FLIP SIDE WATERSPORTS OF ALABAMA, LLC (collectively, “FLIP SIDE”) and each of their respective successors, lessors, assignees, licensees, parent companies, subsidiaries, affiliates (including without limitation, the Alabama Department of Conservation of Natural Resources), related companies and business concerns, past and present, and each of them, as well as each of their partners, owners, trustees, directors, managers, officers, members, intellectual property holders, agents, attorneys, and employees, past and present (collectively referred to as “Releasees”). My acceptance acknowledges that I or the minor for whom I am a legal guardian (collectively referred to as “I,” “me,” or “my”) have voluntarily chosen to participate in activities within FLIP SIDE, including riding or participating within the “PARK” (i.e., the park created by FLIP SIDE) or engage in other activities in or around the park, including but not limited to swimming or wakeboarding, using the aqua park, using water vessels or other equipment, or any other activity that may be offered at the Facilities (as defined below) from time to time (collectively referred to as the “Activities”) and/or engage or use FLIP SIDE’s property, facilities, or equipment (collectively referred to as the “Facilities”). In consideration of the permission granted to me by FLIP SIDE to participate in the Activities and/or use the Facilities, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, I hereby AGREE, promise, and covenant on behalf of myself, my spouse, heirs, assigns, personal representatives, and estate, as follows:
1. ACKNOWLEDGEMENTS OF RISKS:
(a) I UNDERSTAND AND ACKNOWLEDGE that use of the Facilities and/or participating in the Activities in which I am about to voluntarily engage are inherently dangerous, represent an extreme test of my physical and mental limits and condition, and bear certain known risks and unanticipated risks that could result in PHYSICAL OR MENTAL INJURY, DEATH, ILLNESS OR DISEASE, OR DAMAGE to me or my property. I understand and acknowledge those risks may result in claims against the Releasees. However, I am making an informed choice to voluntarily accept and assume such risks due to the thrills, excitement, and/or other benefits of participating in the Activities and/or using the Facilities, and I agree that the benefits of participating in the Activities and/or using the Facilities outweigh the risks, which include but in no way are limited to:
(1) The acts, omissions, and/or negligence in any degree of the Releasees or their agents or employees;
(2) the risks inherent in the Activities, including but not limited to any injuries such as: (a) broken bones (including cartilage) or fractures to any part of the human anatomy, including head, back, neck and spinal cord; (b) concussions; (c) dislocations; (d) torn ligaments and tendons; (e) sprains and strains; (f) cuts to the head, body, and/or limbs; (g) torn nails; (h) bumps and bruises; and (i) eye injuries, including loss of sight;
(3) latent or apparent defects or conditions of the Activities and/or the Facilities;
(4) improper or inadequate instruction or supervision regarding the Activities and/or use of the Facilities;
(5) the behavior of co-participants or spectators;
(6) accidents or incidents in the Facilities, including but not limited to accidents or incidents in wet areas, such as the decks and tiled, concrete, or other wet surfaces in and around the wakeboard cable, aqua park, beach, lockers, and bathrooms; and/or
(7) first aid, emergency treatment, or services rendered or failed to be rendered by the Releasees or their agents or employees.
Further, I acknowledge that any injuries I may sustain or illness I contract may be compounded by negligent emergency response(s) of the Releasees, any medical and/or emergency personnel, or any other third party.
(b) I UNDERSTAND AND ACKNOWLEDGE that swimming in the lake at the Facility entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand and acknowledge that such risks cannot be eliminated without jeopardizing the essential qualities of the Activity, and I agree that the benefits of swimming in the lake outweigh the risks, which include but in no way are limited to:
(1) drowning, near-drowning, having a muscle cramp and drowning, or near drowning, panicking and drowning or near drowning, being trampled, struck and pushed underwater by other swimmers, another swimmer panicking and causing me to drown, getting tired or exhausted and then drowning or near drowning, discovery of some unknown medical problem during or after the swim which causes some injury/death;
(2) injury or death caused by an amoeba or bacteria in the water;
(3) adverse weather conditions such as heavy rain and lightning; and/or
(4) cold water causing hypothermia or hyperthermia with disorientation/injury/death.
(c) I UNDERSTAND AND ACKNOWLEDGE that the above list is not complete or exhaustive, and that these and other risks, known or unknown, identified or unidentified, foreseeable or unforeseeable, or anticipated or unanticipated may also result in injury, death, illness, disease, or damage to me or to my property. I FURTHER ACKNOWLEDGE that (i) I am not under the influence of alcohol, narcotics, or any drug, prescribed or otherwise, which would in any way impair my ability to participate in the Activities; (ii) I can swim (if I choose to swim); (iii) I have the skill level necessary to safely ride or participate in the PARK activities (if I choose to participate in PARK Activities); (iv) I am in good physical and mental health and in proper physical condition to participate in the Activities; and (v) I am not suffering from any condition, disease, illness, or disablement which would or could potentially affect participation in the Activities or use of the Facilities. Further, I ACKNOWLEDGE that I am not purchasing or leasing the PARK, but rather am being afforded a non-exclusive, revocable right to use the PARK on a limited basis. I agree to be familiar with and to abide by all rules and regulations established for the Activities in which I participate. I also accept sole responsibility for my own conduct and actions while participating in these Activities and the condition and adequacy of any equipment that I might own and/or supply in conjunction with those Activities. I FURTHER ACKNOWLEDGE that it is difficult or impossible for FLIP SIDE to determine whether I have the proper training, experience. or fitness level to participate in the Activities or use the Facilities, or for FLIP SIDE to determine whether I fully comprehend any instructions or training provided at the Facilities, and I expressly acknowledge, accept, and assume all risks associated with inadequate training or experience whether or not such training or experience is provided at the Facilities and/or by or on behalf of FLIP SIDE.
2. VOLUNTARY ACCEPTANCE AND ASSUMPTION OF RISK AND RESPONSIBILITY: I EXPRESSLY AND VOLUNTARILY AGREE, COVENANT, AND PROMISE TO ACCEPT AND ASSUME ALL RESPONSIBILITIES AND RISK FOR INJURY, DEATH, ILLNESS, DISEASE, OR DAMAGE to me or to my property arising from and/or relating to my participation in the Activities and/or use of the Facilities.
3. RELEASE AND INDEMNITY: I VOLUNTARILY RELEASE AND FOREVER DISCHARGE AND COVENANT NOT TO SUE the Releasees and all other persons or entities affiliated therewith, from any and all liability, claims, demands, actions and/or rights, which are related to, arise out of, or are in any way connected with my participation in the Activities and/or use of the Facilities, including but not limited to any and all passive or active negligence or fault of the Releasees or for strict liability for abnormally dangerous activities. I UNDERSTAND THIS IS A RELEASE OF LIABILITY THAT IS VALID FOREVER and will apply to all of my current and future participation in the Activities and/or use of the Facilities. I understand that this RELEASE OF LIABILITY will prevent me, my spouse, 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 my participation in the Activities and/or use of the Facilities.
I FURTHER AGREE, PROMISE, AND COVENANT TO HOLD HARMLESS AND TO INDEMNIFY the Releasees from all defense costs, including court costs, attorneys’ fees, and/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 spouse, my child, my heirs, and/or my estate. Such indemnity and defense obligation shall further extend to any claim, loss, or lawsuit that alleges that I negligently or intentionally caused any injury, death, or damage to spectators or other third parties in the course of my participation in the Activities and/or use of the Facilities.
4. RELEASE OF ALL RIGHTS RELATED TO MY AUDIO AND PHOTOGRAPHIC IMAGE: I HEREBY IRREVOCABLY GRANT TO FLIP SIDE and its parents, affiliates (including without limitation, the Alabama Department of Conservation of Natural Resources), subsidiaries, licensees, successors, and assigns, in perpetuity, the exclusive, worldwide right to: (1) make use of my name, voice, likeness, appearance, performance (including, without limitation, any musical performance), and image, and the results and proceeds thereof, as depicted in any type of photograph and/or recording provided by or taken of me in connection with my participation in the Activities and/or use of the Facilities, and/or related materials (collectively, the “Recordings”) and to edit the same at FLIP SIDE’s discretion; (2) reproduce, print, publish, manufacture, distribute, exploit, sell, and otherwise use the Recordings, and authorize others to do so, in any and all media, in whole or in part, with or without my name and biographical details attached thereto, for any purpose, an unlimited number of times; and (3) exhibit, distribute, market, advertise, promote, license, sell, and/or otherwise exploit any and all content produced with the Recordings contained therein (collectively, the “Content”), in whole or in part, and authorize others to do so, in all forms of media now or subsequently known or developed.
I understand and agree that: (i) this release and grant of rights shall not entitle me to any fees or other monetary compensation; (ii) this release and grant of rights includes, without limitation, any and all marketing, promotion, and/or advertising that may occur anywhere and anytime on any media as used by FLIP SIDE and/or its parents, affiliates, subsidiaries, licensees, successors, and assigns; (iii) as between FLIP SIDE and me, FLIP SIDE or its designees shall own the copyright in the Recordings, the Content, and any materials produced in connection therewith; (iv) the Recordings and any services provided by me hereunder are on a “work for hire” basis for FLIP SIDE under U.S. Copyright Law and any other applicable law; (v) to the extent any such services and/or Recordings are not considered a “work made for hire,” I HEREBY ASSIGN in perpetuity, all rights in and to such services and/or Recordings to FLIP SIDE on an exclusive, worldwide basis, and such assignment shall be deemed irrevocable and coupled with an interest; (vi) I hereby waive any and all so-called moral rights of authors or “droit morale” in favor of FLIP SIDE; (vii) FLIP SIDE is not obligated to use my services or the Recordings; (viii) I hereby waive any right of inspection or approval of the Recordings or any use thereof; and (ix) FLIP SIDE may freely license, transfer, sell, or assign any or all of the rights granted to it herein to any person or entity for any purpose.
FURTHERMORE, I HEREBY FOREVER RELEASE the Releasees from any and all claims that I have or may have relating to the Recordings, the Content, any materials produced in connection therewith, and/or the rights granted herein and agree that in no event shall I seek or have the right to enjoin, interfere with, or otherwise inhibit the development, production, exhibition, distribution, promotion, or exploitation of the Recordings, the Content, or any materials produced in connection therewith, to rescind any rights granted hereunder or to claim further consideration for the same.
5. FILMING/PHOTOGRAPHY: I agree that I may only photograph, film, or otherwise make a recording of the Activities, the Park and/or the Facilities (collectively, “Personal Images“) for my own personal non-commercial use, and I will not authorize or permit any third parties to make use of any Personal Images without FLIP SIDE’s approval in each instance. For the avoidance of doubt, to the extent I wish to use any Personal Images or otherwise create or produce any audiovisual content (in any form) featuring the Activities, the Park, and/or the Facilities for commercial purposes, then any such use will be conditioned on the a negotiation of commercial terms acceptable to FLIP SIDE.
6. Personal Property: None of the Releasees shall have any liability to me or anyone else in the event of loss, damage, destruction, or use, whether authorized or not, by any person, or theft of my property and/or any personal effects. I agree that I am responsible for the security and safety of my property that I use, bring to, or leave at the Facilities, and that the Releasees cannot and do not guarantee the security or safety of my property. Should I leave any property at the Facilities or otherwise in the custody of any of the Releasees, I do so at my sole and absolute risk.
7. GENERAL: I understand that this Agreement is the entire agreement between the undersigned and the Releasees with respect to the subject matter hereof, and that it cannot be modified or changed in any way by the representations or statements of the Releasees or any employee or agent of the Releasees, or by the undersigned, unless in a writing signed by the parties hereto. I understand and AGREE that this Agreement is severable and that if any clause is found to be invalid, the balance of the Agreement will remain in effect and will be valid and enforceable. I AGREE that this Agreement shall be governed by the laws of the State of Alabama (without giving effect to any provision that would result in the application of another jurisdiction’s laws) and AGREE that any dispute or suit I have with the Releasees will be subject to jurisdiction only in the state courts located in Shelby County, Alabama, and I waive any defense that such forum is not convenient or proper. The provisions of this Agreement are intended to be interpreted and enforced to the fullest extent allowed by law.
I AGREE that when I sign (or, if a minor, when my parent or guardian signs) this Agreement, it will be irrevocable and binding on all parties, subject to the terms and conditions hereof, and all of the terms and conditions of this Agreement shall apply to my current participation and all future participation in the Activities and/or use of the Facilities in perpetuity.
I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. I UNDERSTAND THAT BY SIGNING THIS AGREEMENT, I SURRENDER VALUABLE RIGHTS BELONGING TO ME AND I DO SO FREELY AND VOLUNTARILY.