ASSUMPTION OF RISK, INDEMNIFICATION AND WAIVER OF LIABILITY
In consideration of the permission granted to me to access and use those certain facilities available to me as a user or guest at Southshore Bay Club (the “Club”), I, the undersigned participant (the “Participant”), on behalf of myself and my minor children, including, but not limited to, those listed below (the “Minors”), and subject to Florida Statutes § 744.301, hereby acknowledge and agree as follows:
- ASSUMPTION OF RISK. The Participant understands that his/her access to, or use of, (a) the Club; (b) the services, amenities, facilities, equipment, improvements, and property of, or at, the Club (the “Club Facilities”); and (c) the real property upon which the Club and Club Facilities are located (the “Club Property”) carry certain inherent risks and hazards that cannot be eliminated regardless of the care taken to avoid injuries. The Participant also understands that there are inherent risks and hazards associated with swimming and participation in water-related and recreational activities, including, without limitation, those associated with the use of the Crystal Lagoon®, recreational “Wibit” obstacle course, rock-wall, inflatable water slide, stand up paddleboards (“SUPs”), kayaks, and other equipment at the Club, Club Facilities, and Club Property. Some of these risks and hazards are outlined below, but there may be other unknown risks and hazards that are an inevitable part of using the Club, Club Facilities, or Club Property. Because of these risks and hazards, serious accidents may occur, including, without limitation, accidents associated with falls, physical contact with equipment or other persons, encounters with wildlife, hitting the lagoon bottom, bad weather, sun exposure, and complications of existing or developing medical conditions. All of these risks and hazards, and others not listed here, may result in injuries severe enough to require serious medical care or short or long-term disability, dismemberment, and even death.
By signing this document (“Agreement”), the Participant agrees that the Participant and any Minors (a) are aware of the risks related to the Club, Club Facilities, and Club Property; (b) are responsible for his/her/their own wellbeing; and (c) will enter upon and use the Club, Club Facilities, and Club Property at his/her/their own risk. Further, the Participant agrees that the Participant’s and any Minors’ access to or use of the Club, Club Facilities, or Club Property is completely voluntary, and that he/she/they expressly assume all risks associated therewith, including, but not limited to, scrapes, lacerations, impact injuries, burns, illnesses, infections, mental stresses and anxieties, weather conditions, slips and falls, equipment failures, damages to property, drownings, disfigurements, and deaths. In other words, the Participant assumes all the risks and responsibility for his/her own wellbeing and the wellbeing of his/her Minors and guests. The Participant also (x) authorizes the Releasees (as defined below) to call for medical care for the Participant and any Minors or guests if, in the Releasees’ sole opinion, medical attention is prudent or necessary; and (y) agrees to pay all costs associated with such care.
The Participant and Minors will abide by all rules and instructions of the Club, Club Owner, Club Manager, or Equipment Lessor, and their respective personnel or contractors. Also, because non-swimmers should not participate in water-related activities, by signing this Agreement, the Participant represents and agrees that the Participant and Minors are in good health, know how to swim, and can swim safely.
- WAIVER AND RELEASE OF CLAIMS; DEFENSE AND INDEMNITY. The Participant (for himself/herself and his/her family members, Minors, guests, personal representatives, heirs, trustees, trusts, beneficiaries, insurers, successors, assigns, and all others claiming by or through him/her (collectively, the “Releasors”)) hereby unconditionally and irrevocably covenants not to sue, releases, acquits, forever discharges, and agrees to defend, indemnify, and hold harmless the Club, all Club owners (currently, Southshore Bay Club, LLC, a Florida limited liability company (the “Club Owner”)), all Club managers (currently, WTS International, Inc., a District of Columbia corporation (the “Club Manager”)), and all providers of rental equipment (the “Equipment Lessor”)) (and their respective past, present, and future employees, officers, directors, representatives, agents, principals, consultants, contractors, owners, shareholders, members, managers, partners, subsidiaries, parents, affiliates, insurers, successors, assigns, and any others claiming by or through them (collectively, the “Releasees”)) for or from – and also knowingly and intentionally waives – any and all claims, rights, remedies, damages, liabilities, guaranties or warranties (express, implied, or statutory), representations, omissions, and any other claims or losses of any type whatsoever (whether common law, statutory, or equitable; whether known, unknown, anticipated, unanticipated, foreseen, unforeseen, accrued or not accrued; and whether caused, in whole or in part, by the negligence, acts, omissions, carelessness, or other conduct of the Releasees) arising from, or relating to, (a) the Participant’s or any Minors’ presence at, or use of, the Club, Club Facilities, or Club Property; (b) the Participant’s or any Minors’ use of any amenities or equipment at the Club, Club Facilities, or Club Property, including, without limitation, the Crystal Lagoon®, recreational obstacle course, water slide, stand up paddleboards, kayaks; (c) the Participant’s or any Minors’ participation in any contest, game, function, exercise, competition, or other activity (i) at the Club, Club Facilities, or Club Property; or (ii) operated, organized, arranged, or sponsored by the Club, Club Owner, Club Manager, or any other Releasee; (d) any personal injuries or property damage caused by the intentional or negligent acts or omissions of the Participant or any Minors; or (e) any loss, theft of, or damage to any of the Participant’s or Minors’ personal property (collectively, the “Released Claims”).
- RENTAL OR USE OF WATER EQUIPMENT. The Participant and any Minors hereby make the following representations, and acknowledge and agree that he, she, or they will abide by the following warranties and rules, all of which govern the use of water or rental equipment at the Club, Club Facilities, or Club Property:
- The Participant and Minors have sufficient physical strength, endurance, and experience to enable him, her, or them to (i) use all equipment at the Club, Club Facilities, or Club Property; or (ii) participate in all classes, lessons, or other programs at the Club, Club Facilities, or Club Property.
- The Participant and Minors do not have any health problems or medical conditions that could prejudice his, her, or their (i) use of all equipment at the Club, Club Facilities, or Club property; or (ii) participation in classes, lessons, or other programs at the Club, Club Facilities, or Club Property.
- Standing on kayaks is prohibited, as is standing on SUPs within 8ft. of the dock, swim-up bar, or any other structures in or around the Crystal Lagoon®.
- The Participant and Minors will follow all instructions given to him, her, or them by any persons conducting the subject activity or activities, including, without limitation, instructions to wear life preservers or similar protective equipment.
- All individuals who use the inflatable obstacle course must know how to swim and MUST wearing a personal flotation device (“PFD”).
- All individuals who use kayaks or SUPs MUST wear a life jacket or other PFD at all times. All individuals who do not comply will (i) be ordered to return to shore and relinquish their rental equipment without refund; and (ii) in the discretion of the manager on duty, be required to leave the Club.
- Intentional capsizing or swamping is prohibited. All individuals observed doing so will (i) be ordered to return to shore and relinquish their rental without refund; and (ii) in the discretion of the manager on duty, be required to leave the Club.
- Equipment will not be removed from the Club.
- No alcoholic beverages are permitted to be consumed on, or prior to using, any equipment. The determination of fitness to operate equipment shall be made in the sole discretion of the manager on duty and shall be final.
- All individuals must adhere to Florida Marine laws, as well as all Club rules.
- DISPUTE RESOLUTION; JURY TRIAL WAIVER. THE PARTCIPANT WAIVES THE RIGHT TO A JURY TRIAL, and agrees that any dispute arising from, or related to, (a) this Agreement; or (b) the Participant’s or the Minors’ presence at, or use of, the Club, Club Facilities, or Club Property shall first be submitted to mediation and, if not settled during mediation, shall be submitted to binding arbitration as provided by the Federal Arbitration Act (or, if inapplicable, by similar state statute) and not by a court of law. All decisions respecting the arbitrability of a dispute also shall be decided by the arbitrator. The mediation shall be conducted before the American Arbitration Association (the “AAA”) in accordance with the AAA’s Commercial Mediation Rules. If the dispute is not resolved by mediation, the dispute shall be submitted to binding arbitration before the AAA in accordance with the Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in, and enforced by, any court having jurisdiction over the matter. This Agreement in all respects shall be construed, interpreted, governed, and enforced according to the laws of Florida, without regard to Florida’s choice of law rules, and the exclusive venue for any mediation or arbitration shall be in Hillsborough County, Florida.
- FUTURE VISITS. This Agreement applies to the Participant’s or Minors’ use of, or presence at, the Club, Club Facilities, or Club Property on the dates specified below and all future dates on which the Participant or Minors use, or are present at, the Club, Club Facilities, or Club Property.
- INTERPRETATION; SEVERABILITY. This Agreement is intended to provide the broadest possible protection for the Releasees, subject to Florida Statutes § 744.301. Thus, and to be clear, nothing contained in this Agreement should be construed to waive or release more than allowed by § 744.301 or impose a burden on the Minors prohibited by § 744.301. Similarly, if any part of this Agreement, or the application thereof under certain circumstances, is held invalid or unenforceable, the remainder of this Agreement, or the application of such part under other circumstances, shall not be affected thereby.
THE PARTICIPANT ACKNOWLEDGES THAT HE/SHE (A) HAS READ, AND FULLY UNDERSTANDS, ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT; (B) UNDERSTANDS THAT HE/SHE IS GIVING UP SUBSTANTIAL RIGHTS, INCLUDING HIS/HER FAMILY’S RIGHT TO SUE; AND (C) IS VOLUNTARILY SIGNING THIS AGREEMENT, PHYSICALLY OR DIGITALLY, ON BEHALF OF HIMSELF/HERSELF AND ANY MINORS.
AGREEMENT FOR MINOR PARTICIPANT
I, the above-signed adult Participant, hereby agree that, if while participating in any activities within the Club, Club Facilities, or Club Property, I observe any unusual hazard or condition, which I believe jeopardizes my safety or that of the Minors or any other person, I will remove the Minors from participation in the activities and immediately bring said hazard or condition to the Club Owner’s, Club Manager’s, or Equipment Lessor’s attention. Further, and regardless of any such hazards or conditions, I agree that I will explain to the Minors that the risk of injury while participating in the activities and using the Club, Club Facilities, and Club Property can be reduced by following all applicable rules, and through the use of common sense and good judgment. My signature below reflects my (a) assent that the Minors are bound by this Agreement; and (b) representation and agreement that I am the natural guardian of the Minors listed below, and possess the legal authority to sign this Agreement on his, her, or their behalf.
NOTICE TO MINOR CHILD’S NATURAL GUARADIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF THE RELEASEES USE REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM THE RELEASEES IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND RELEASEES HAVE THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.