HOLD HARMLESS, RELEASE AND INDEMIFICATION AGREEMENT
This Agreement (the “Agreement”) is by and between Derek Fisher Basketball Academy, LLC, a California limited liability company (“DFBA”) and (one/both of Camper’s parent(s) or legal guardian(s).
Camper’s parent(s) or legal guardian(s) (collectively, “Camper’s Parent”), with regards to the following facts:
WHEREAS, DFBA owns and operates that certain sports day camp through which participants play, practice, train and/or compete fin basketball and other sports-related activities;
WHEREAS, Camper will train, practice, workout and/or compete with DFBA and will be coached by DFBA’s coaching staff; and
WHEREAS, DFBA has agreed to allow Camper to train, practice, workout and/or compete with DFBA, on the condition that Camper’s Parent pays all necessary dues and enters into, and executes, this Agreement.
NOW, THEREFORE, in consideration for DFBA agreeing to allow Camper to train, practice, workout and/or compete with DFBA, the mutual covenants of the parties hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DFBA and Camper’s Parent agree as follows:
1. Assumption of Risk. Camper’s Parent represents and warrants that he or she is an adult, and that Camper’s Parent is fully informed and aware of the risks and dangers that exist and which are inherent in and to the sport of basketball, including, but not limited to, (i) loss or damage to personal property; and/or (ii) personal injury which may occur as a result of being kicked, stomped, hit or otherwise contacted by another Camper or player, hitting any part of the body, being injured by other Camper or player or otherwise injured in any other way. Camper’s Parent is also fully informed and aware of the risks and dangers that exist which are inherent in and to being in and around basketball courts and workout facilities. Camper’s Parent acknowledges that Camper may sustain loss or damage to personal property and/or personal injury or fatality as a result of or from the above-described risks, and/or as a result of or from any and all other risks, which may or may not be inherent or commonly related to basketball and other sports-related activity. CAMPER’S PARENT HEREBY ELECTS TO VOLUNTARILY ASSUME ALL OF THE ABOVE-STATED RISKS, AND ALL OTHER RISKS THAT MAY EXIST, WHICH MAY OR MAY NOT BE RELATED TO BASKETBALL, REGARDLESS OF WHETHER SUCH RISKS ARE SPECIFICALLY ENUMERATED ABOVE. MOREOVER, CAMPER’S PARENT INTENDS TO CLEARLY, EXPLICITLY AND COMPREHENSIBLY ASSUME ALL RISKS WHICH EXCEED THE INHERENT RISKS ASSOCIATED WITH BASKETBALL AND OTHER SPORTS ACTIVITIES. IT IS EXPRESSLY ACKNOWLEDGED BY CAMPER’S PARENT THAT CAMPER’S PARENT IS ASSUMING ON HIS/HER OWN AND CAMPER’S BEHALF ALL RISKS, INCLUDING THOSE WHICH EXCEED THE INHERENT RISKS ASSOCIATED WITH BASKETBALL.
2. Waiver of Liability. Camper’s Parent hereby VOLUNTARILY DISCHARGES AND RELEASES FOREVER, AND SHALL FOREVER HOLD HARMLESS, AND AGREES NOT TO SUE DFBA, its affiliates, members (including Derek Fisher), managers, customers, clients, directors, officers, shareholders, employees, coaches, assistant coaches, volunteers, other Campers, affiliated companies and agents (collectively, the “DFBA Releasees”) against all losses, claims, judgments, damages, settlements, legal actions, proceedings or liabilities of any kind or nature, including, without limitation, attorneys’ fees (collectively, “Damages”) which are related to or arise out of Camper training, practicing, working out and/or competing with DFBA and/or the DFBA Releasees, no matter how incurred, regardless of whether such Damages arise from the active or passive negligence of Camper, or any other third person, OR THE ACTIVE OR PASSIVE NEGLIGENCE OF DFBA OR THE DFBA RELEASES, other than Damages determined in final judgment, by a court having final jurisdiction, to be the result of DFBA’s willful misconduct, recklessness or gross negligence. CAMPER’S PARENT UNDERSTANDS AND AGREES THAT THE ABOVE RELEASE PREVENTS HIM OR HER FROM SUING DFBA OR ANY DFBA RELEASEE FOR ANY AND ALL SUCH DAMAGES.
3. Indemnification. Camper’s Parent agrees to and shall indemnify and hold DFBA, the DFBA Releasees and any third party harmless from any and all Damages, liabilities, costs, or expenses (including reasonable attorneys’ fees) arising from or related to any and all injuries or Damages sustained or suffered by Camper, of any kind or nature, regardless of whether such injuries or Damages relate to, concern or arise out of Camper training, practicing, working out and/or competing with DFBA and/or the DFBA Releasees, INCLUDING, WITHOUT LIMITATION, INJURIES SUSTAINED OR SUFFERED BY CAMPER CAUSED BY THE NEGLIGENCE OF DFBA OR A DFBA RELEASEE, or any other Camper, regardless of the location where such injuries or Damages are sustained. ADDITIONALLY, CAMPER’S PARENT AGREES TO AND SHALL INDEMNIFY AND HOLD DFBA AND THE DFBA RELEASEES HARMLESS FROM ANY AND ALL INJURIES OR DAMAGES SUSTAINED OR SUFFERED BY ANY THIRD PARTY CAUSED BY ANY ACTION OR INACTION OF CAMPER.
4. Certification and Acknowledgement. Camper’s Parent certifies, acknowledges and agrees to the following:
a. That Camper has the necessary skills and abilities to participate in the above-described activities, and Camper’s Parent assumes full responsibility for bodily injury, death, loss of personal property and/or expenses related thereto as a result of Camper’s negligence, the negligence of DFBA or that of a DFBA Releasee, or the negligence of any third party;
b. That Camper and Camper’s Parent will abide by the rules and/or instructions of DFBA or any DFBA Releasee.
c. That Camper has no medical problems which will be aggravated by participation in the above-described activities, or which would, under any circumstances, render Camper unable to participate in the above-described activities even with reasonable accommodation; AND
d. That Camper’s Parent has thoroughly read and understands this Agreement.
5. Section 1542 Waiver. This Agreement extends to all disputes of every kind and nature by or between Camper’s Parent against DFBA, any DFBA Releasee, or any third party, whether known or unknown, suspected or unsuspected, past or present, and whether or not they arise out of or are attributable to Camper’s participation in the above-described activities. Specifically, Camper’s Parent expressly waives any and all rights under Section 1542 of the California Civil Code, which reads as follows: “Section 1542. General Release. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with debtor.”
Camper’s Parent acknowledges that he or she has separately bargained for the foregoing waiver of Section 1542. Camper’s Parent and DFBA intend that where the provisions regarding the disputes released herein are governed by similar federal, state or other laws, all such other, similar laws are so waived by Camper’s Parent.
6. Camper’s Parent’s Consultation with Counsel. CAMPER’S PARENT REPRESENTS THAT, IN THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT, HE OR SHE HAS HAD THE OPPORTUNITY, AND IS HEREBY ENCOURAGED, TO CONSULT WITH AN ATTORNEY.
7. Miscellaneous. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and all prior understandings, agreements and/or promises, oral or in writing, by the parties hereto are cancelled and superseded by this Agreement. No variations, modifications, supplements, waivers or changes herein or hereof shall be binding upon any party hereto unless set forth in a written document, duly executed by or on behalf of such party. Each party represents and warrants that no promises or inducements were made to get either party to enter into this Agreement. This Agreement be governed by and interpreted according to California law. Any dispute regarding this Agreement and subject matter hereof shall be filed in and decided upon by the courts of the State of California, the personal jurisdiction and venue of and to which all Parties agree and consent by entering into and signing this Agreement. If any party hereto commences any action or other proceeding to enforce or interpret this Agreement, including any actions to reform or rescind or any manner effect the provisions of this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred therewith, including but not limited to actual attorneys’ fees.
