WAIVER OF LIABILITY AND RELEASE AGREEMENT
In consideration of the undersigned client's ("Client") participations in Radi8 Hot Yoga, LLC's (dba Radi8) ("Radi8") yoga, hot yoga, and other similar physical fitness programs (collectively, the "Hot Yoga Programs"), Client agrees to pay any and all fees charged by Radi8 for those Hot Yoga Programs and enter into this Waiver of Liability and Release Agreement (the "Agreement"), covering the entirety of their participations in the Hot Yoga Programs, whether held at Radi8's studio located at 3905 East Indian School Road, Suite 104, Phoenix, Arizona 85018, or at any other location, Client agrees, warrants, and covenants as follows:
1. Risks of the Hot Yoga Programs and Client Acknowledgments. Client acknowledges that they are aware of the inherent risks to their person (including the risk of significant injuries or death) or property through their participation in the Hot Yoga Programs. Client understands that the risks associated with the Hot Yoga Programs can result in falls, broken bones, torn muscles or ligaments, heart attacks, seizures, dehydration leading to nausea or vomiting, general illness, and other similar injuries including, but not limited to, injuries that can lead to disability, paralysis, and possibly death. These injuries may arise from a variety of circumstances including, but not limited to, the use or misuse of Radi8's equipment or facilities, from the activity itself, from the acts of Client or others (including Radi8 or its agents), or from the unavailability of emergency medical care. Client further understands that they will be participating in the Hot Yoga Programs in an enclosed space and contact with other clients, the instructors, or with man-made or natural obstacles is likely to occur. Client also understands that the floors of Radi8's facility will often be wet and slippery as a result of the Hot Yoga Programs, and Client agrees that they will use caution at all times while at Radi8. Client attests and verifies that Client is physically fit and Client has sufficiently prepared for the Hot Yoga Programs in whatever manner they deem appropriate.
2. Assumption of the Risk. Client agrees that they are participating in the Hot Yoga Programs of their own free will. Client understands that their decision to participate in the Hot Yoga Programs is entirely voluntary and is not a requirement. Client assumes the full responsibility for all risks that may arise out of or result from their participations in the Hot Yoga Programs. Client understands that the Hot Yoga Programs involve strenuous and potentially hazardous athletic activities, and Client knowingly, voluntarily, and fully assumes the risks of their participation in the Hot Yoga Programs and any and all injuries that result from that participation including, but not limited to, those set forth in Section 1 above.
3. Releases and Waivers of Liability. Client agrees, on their own behalf and on behalf of Client's beneficiaries, heirs, estate, successors, and assigns, to indemnify, hold harmless, and fully release Radi8, and its owners, managers, members, employees, instructors, agents, volunteers, assigns, or insurers (collectively, the "Released Parties") against any lawsuits, demands, claims (including, but not limited to, tort or contractual claims), costs, or expenses (including attorneys' fees and legal costs) arising from or in any manner related to this Agreement, Client's participation in the Hot Yoga Programs, or Client's relationship with Radi8 (including, but not limited to, claims related to damage or loss of property, bodily injuries, medical treatment, or death) (collectively, the "Released Claims"), whether or not those Released Claims are foreseeable or contributed to by the negligent acts or omissions of the Released Parties or others. Client also waives any protections afforded by any statute or law in any jurisdiction whose purpose, substance, or effect is to provide that a general release will not extend to claims, material or otherwise, that the Client giving the release does not know or suspect to exist at the time they signed the release. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT THE RELEASED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE HOT YOGA PROGRAMS AND AGREES THAT THE RELEASED PARTIES WILL NOT, UNDER ANY CIRCUMSTANCE, BE LIABLE FOR CONSEQUENTIAL, INDIRECT, GENERAL, SPECIAL, OR SIMILAR DAMAGES ARISING OUT OF ANY INJURY SUFFERED BY CLIENT THROUGH THEIR PARTICIPATION IN THE HOT YOGA PROGRAMS. CLIENT FURTHER UNDERSTANDS THAT THIS RELEASE COVERS CLAIMS BASED ON RADI8'S OWN NEGLIGENCE, ANY AND ALL TORT CLAIMS, AND ANY OTHER CLAIM AGAINST RADI8 WHATSOEVER.
4. Medical Verification and Agreement to Withdraw if Necessary. Client acknowledges and agrees that Client's medical doctor has verified their physical condition and advised Client that they are medically able to participate in the Hot Yoga Programs. Client acknowledges that the Hot Yoga Programs involve extreme physical exertion and endurance and that Client will monitor themselves throughout the Hot Yoga Programs and will withdraw from the Hot Yoga Programs if Client believes that continuing will present a risk of injury to Client or others. Client also agrees to notify Radi8 staff immediately if they feel ill or sick in any way so Radi8 may take the appropriate action to assist the Client.
5. Standard of Care. Client understands and acknowledges that they will receive instruction in yoga theory and exercise only, and they agree not to hold Radi8 and its owners, managers, members, employees, instructors, agents, volunteers, assigns, or insurers to any higher standard of care than that applicable to yoga theory and instruction.
6. Agreement to Follow Instructions. Client agrees to follow all instructions given to them by Radi8's staff and instructors as to when, where, and how to perform the Hot Yoga Programs and it is understood that any deviation by Client from such instruction is at their own risk. Client understands that at the instructor's discretion they could be asked to leave any class if they are found to be disruptive to others. Client understands that as part of the Hot Yoga Programs, the instructors may make adjustments to their posture or poses during the practice. Of course, these adjustments will necessitate physical contact between the instructor and the Client, and Client consents to such contact. If Client does not want adjustments made to their posture or poses during practice, it is the obligation of the Client to inform the instructor before class begins.
7. Consent for Emergency Treatment. Client consents to emergency medical treatment in the Hot Yoga Programs when, in the reasonable judgment of the on-site personnel, Client requires medical care. Client further consents to medical treatment for emergencies that occur during or are related to their participation in the Hot Yoga Programs where they are unable to consent to such treatment. Client agrees that they assume all liability for any and all medical expenses incurred as a result of training for, participation in, or injuries suffered during the Hot Yoga Programs, including, but not limited to, ambulance transport, hospital stays, and physician and pharmaceutical goods and services.
8. Pregnancy. CLIENT EXPRESSLY AGREES NOT TO ATTEND THE HOT YOGA PROGRAMS UNTIL THEY HAVE DISCUSSED THE RISKS ASSOCIATED WITH THAT PARTICIPATION WITH THEIR OBSTETRICIAN AND HAVE OBTAINED THAT MEDICAL PROVIDER'S CONSENT TO PARTICIPATE. CLIENT AGREES TO FOLLOW THEIR DOCTOR'S RECOMMENDATIONS WITH RESPECT TO PARTICIPATION IN THE HOT YOGA PROGRAMS WITH THE UNDERSTANDING THAT THEIR PARTICIPATION WILL INVOLVE STRENUOUS EXERCISE IN A CLOSED ROOM HEATED AT TIMES TO OVER ONE HUNDRED AND FIVE (105) DEGREES FAHRENHEIT.
9. Minors. If the Client is under eighteen (18) years of age, they agree to disclose that information to Radi8. In addition to the minor Client's signature, their parent and/or legal guardian must also sign and date this Agreement and agree to be bound by its terms and conditions.
10. Client Payments. Any and all fees paid by the Client to Radi8 are non-refundable.
11. Lost or Stolen Property. Client agrees to hold Radi8 harmless for any and all lost or stolen property that may occur at Radi8 or anywhere in or near its facilities including, but not limited to, the front desk, retail area, yoga studio, locker rooms, bathrooms, and the parking lot.
12. Photograph and Video Release. For advertising and marketing purposes, Client understands and agrees that Radi8 may photograph or video the Hot Yoga Programs that they participate in. By entering into this Agreement, Client consents to the recording by Radi8 of photographs and/or videos of Client in the context of their participation in the Hot Yoga Programs. Client also gives their consent for the photos and/or videos to be used by Radi8 for advertising or marketing purposes including, but not limited to, on Radi8's website, print media, and social media networks such as: Facebook, Instagram, LinkedIn, Yelp, Twitter, and other similar outlets. Client understands and agrees that these photos and/or videos may stored on Radi8's computer systems, but that they will have no access to the photos and/or videos. Client waives all rights to, and interest in, the photos and/or videos.
13. Entire Agreement; No Modification. This Agreement constitutes the entire agreement related to the subject matter discussed, and supersedes any prior or contemporaneous agreements or understandings with respect to the subject matter discussed. This Agreement may not be amended or modified, by course of conduct or otherwise.
14. Governing Law. This Agreement, and any claim or controversy arising out of or relating to this Agreement, the Hot Yoga Programs, or the Client's relationship with Radi8, are governed by and construed in accordance with the laws of the State of Arizona, without reference to its conflict of law principles.
15. Disputes. Any demand, controversy, dispute, or claim arising out of or related to this Agreement, the Hot Yoga Programs, or the Client's relationship with Radi8 will be determined exclusively by binding arbitration under Arizona's Revised Uniform Arbitration Act, A.R.S. §§ 12-3001, et seq. (the "Act") upon the written request of any party. Any party seeking to invoke the provisions of this Section will transmit a written demand for arbitration to the other party (the "Written Demand"). The Written Demand will set forth the nature of the dispute, the amount involved, and the remedy sought. The arbitrator will have the authority to set the nature and scope of discovery. The decision of the arbitrator will contain a written statement of reasons and support. The decision of the arbitrator will be final and may be entered in any court of competent jurisdiction for enforcement. Under no circumstances may the arbitrator amend any provision of this Agreement or make any award of punitive damages. The arbitrator will apply Arizona law to any dispute consistent with Section 14 above. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT IN AGREEING TO THE ARBITRATION OF ANY AND ALL DISPUTES WITH RADI8 AS SET FORTH IN THIS AGREEMENT, THEY ARE WAIVING ANY RIGHT TO A TRIAL OR TRIAL BY JURY.
16. Severability. In the event that any term or provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, all other terms and provisions of the Agreement will nevertheless remain in full force and effect, so long as the economic or legal substance of the transactions contemplated by the Agreement are not affected in any manner that is materially adverse to any party. Upon such determination that any term or other provision of the Agreement is illegal, unenforceable, or void, the parties will negotiate in good faith to modify the Agreement so as to affect the original intent of the parties as closely as possible so that the transactions contemplated hereby are consummated as contemplated to the greatest extent possible.
17. Interpretation. When permitted by the context, each pronoun used in the Agreement includes the same noun in other numbers. As used in the Agreement, the words "include" and "including" and their variants will not be deemed to be terms of limitation but will instead be deemed to be followed by the words "without limitation."
18. Notices. All notices, consents, waivers, and other communications required or permitted by the Agreement will be in writing and will be deemed given to a party when: (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by email with confirmation of transmission by the transmitting equipment; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the addresses or email addresses set forth on the signature page of this Agreement and marked to the attention of the person (by name or title) designated below (or to such other address, email address, or person as a party may designate by notice to the other parties).
19. Construction; Legal Counsel. Each party agrees and acknowledges that he, she, or it was represented by legal counsel (or had the opportunity to be represented by legal counsel) in connection with the negotiation, execution, and delivery of this Agreement and that such party and their legal counsel have reviewed and revised this Agreement, or have had an opportunity to do so, and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement.
20. Waiver of Terms. Waiver of any term or provision of this Agreement or forbearance to enforce any term or provision by either party will not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Agreement.
21. Binding Nature of Agreement. This Agreement is binding on and inures to the benefit of the parties and their parents, subsidiaries, affiliates, officers, directors, managers, members, employees, agents, attorneys, successors, assigns, heirs, beneficiaries, personal representatives, and insurers.
22. Parent or Guardian Certification. If Client is under age eighteen (18) his/her parent or guardian must sign this Agreement. Client's Parent or Guardian's signature below certifies that Client's son/daughter/ward has permission to participate in the Hot Yoga Programs. Client's Parent/Guardian has read and understands this Agreement and by signing intentionally and voluntarily agrees to its terms and conditions. Client's Parent/Guardian further certifies that such son/daughter/ward is in good physical condition and is able to safely participate in the Hot Yoga Programs. Client's Parent/Guardian expressly authorizes emergency medical treatment for such son/daughter/ward and agrees to assume all financial responsibility for any such treatment.
CLIENT WARRANTS THAT ALL STATEMENTS MADE IN THIS AGREEMENT ARE TRUE AND CORRECT AND UNDERSTANDS THAT THE RELEASED PARTIES HAVE RELIED ON THEM IN ALLOWING CLIENT TO PARTICIPATE IN THE HOT YOGA PROGRAMS. CLIENT HAS READ THE AGREEMENT CAREFULLY AND INTENTIONALLY AND VOLUNTARILY SIGNS THE AGREEMENT. CLIENT AGREES THAT THEY ARE ASSUMING THE RISK OF THE HOT YOGA PROGRAMS AND RELEASING AND HOLDING HARMLESS THE RELEASED PARTIES FOR ANY AND ALL CLAIMS OR DAMAGES WHATSOEVER IN CONNECTION WITH CLIENT'S PARTICIPATION IN THE HOT YOGA PROGRAMS.