The Therapy Xploriment Waiver and Indemnity Agreement

PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING, YOU ARE PERMANENTLY WAIVING LEGAL RIGHTS FOR YOURSELF AND OTHERS AND ARE AGREEING TO BROADLY INDEMNIFY THE THERAPY XPLORIMENT.

BACKGROUND

This Waiver and Indemnity Agreement (the “Agreement”) is entered into by the adult signing below (the “Adult Participant”), both on his/her own behalf, and, if any minor(s) is/are named below (each a “Child Participant”), on behalf of and as parent or legal guardian for such Child Participant(s) identified below. The Adult Participant and any Child Participants, are collectively referred to as the “Participants” in this Agreement. In consideration of TheTherapyXploriment, PLLC (“Xploriment” or “Business”) granting Participants limited access to enter the Business’ premises at or near 13617 Fitzhugh Rd, Austin Texas 78736 (or any other premises owned or operated by Business) (collectively the “Premises”), and participate in the Activities (as defined herein), Participants hereby agree as follows:

TERMS

1. Activities Subject to Change. Xploriment strives to provide an evolving portfolio of Activities to better serve Participants. Participants are advised to carefully review the Activity descriptions for any programs prior to registering, or, to speak with the admissions representative upon arrival to verify that the Participants are interested in and comfortable with the Activities offered on that particular day of entry.

2. Day Camp Programs. Xploriment offers select multi-hour, drop-off programming to Child Participants as authorized by their parents or legal guardians (“Day Camps”). Participants acknowledge that the terms of this Agreement apply to all Activities offered during Day Camps and also all Activities offered during routine, non-Day Camp visits. The terms of this Agreement also apply to any situation in which a Child Participant is left at the Premises in the care of another Adult Participant who is not the Child Participant’s parent or legal guardian for a birthday party or similar event (“Party”).

3. Supervision. Except during Day Camps, when direct, continuous supervision is not possible, Adult Participants shall directly and continuously supervise any of the Child Participants they bring to Xploriment or are otherwise responsible for (example during Party events) at all times while engaged in the Activities. Such supervision by the Adult Participants is of paramount importance to ensuring that Child Participants safely enjoy the Activities and, like signing this Agreement, is material consideration from Participants in exchange for access to the Premises and Activities. Adult Participants shall also remain vigilant at all times while on the Premises and shall immediately alert Xploriment staff to the presence of any hazards or other threats to any Participant’s safety. If Adult Participant(s) fail to comply with this immediate hazard and safety notification obligation and allow their associated Child Participant(s) to continue engaging in the Activities, such failure will be deemed an irrevocable acceptance of such hazard and safety risks on the part of all involved Participants.

4. Risks. The following, non-exhaustive list of possible risks Participants may encounter while engaged in the Activities at the Premises is offered for Participants’ consideration prior to signing this Agreement and partaking in Activities:

5. General Risks Associated with Activities. Participants acknowledge there are inherent risks in all activities, including the Activities, and that all manner of bodily and property injury and death might occur from participating in the Activities. These risks may include, without limitation: equipment malfunction; defective design or manufacture of equipment; improper or negligent installation or maintenance of equipment; all manner of physical injuries, including choking, cuts, bruises, muscle strain twisted or sprained ankles, knees, shoulders, or wrists; burns; dirt or other materials in eye; concussions; broken bones; physical or emotional injuries; over-exertion; being hit by a ball; collisions with other participants; erratic co-participant behavior; collisions with standards and supports; using improper form or technique; slipping, falling, or tripping; error of judgment by employees; paralysis, disability, or death; personal injury to third persons; or property damage. If you have any questions, please contact a manager before purchasing admission.

6. Exposure to Bacteria, Fungus, Virus, Allergens, and Contagious Diseases. By entering the Premises to engage in Activities, Participant may be exposed to various bacteria, fungus, viruses, allergens and contagious diseases, which—notwithstanding Xploriment’s adherence to applicable law, regulation, and good hygiene and cleaning practices—cannot be entirely eliminated.

7. Agritourism Risks. Participants acknowledge that Xploriment is an Agritourism operator by nature of various of the Activities it offers. WARNING: UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY. ACCORDINGLY, I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES. I UNDERSTAND THAT BY SIGNING THIS AGREEMENT AND PARTICIPATING IN THE ACTIVITES I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER LOSS THAT MAY RESULT FROM SUCH AGRITOURISM ACTIVITIES.

8. Assumption of Risks. Notwithstanding the foregoing risks and the safety measures implemented by Xploriment, Participants acknowledge it is impossible to eliminate all risk of injury and understand the demands of the Activities relative to Participant’s physical condition and skill level. Participants agree that engaging in the Activities is purely voluntary and that Participants have the ability to cease engaging in the Activities at any time if they become uncomfortable with any perceived or actual risks—regardless of whether specifically identified in this Agreement; Participants’ continued engagement in the Activities will be deemed an irrevocable acceptance of such Participants’ clear understanding of the risks posed by the Activities at the Premises.

9. Prohibition on Alcohol or Any Other Intoxicating or Illegal Drugs. No alcohol or intoxicating/illegal drug use is permitted on the Premises at any time, and Participants shall not attempt entry into the Premises or participation in any Activities while under any alcohol or drug impairment of any degree. If Participants are observed consuming or are suspected to be intoxicated or impaired by any mind-altering substance, Participants will be asked to immediately vacate the Premises along with any other members of their party, and no refunds will be provided to such Participants.

10. RELEASE AND INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY LAW, ADULT PARTICIPANT ON BEHALF OF HIM/HERSELF, ANY ASSOCIATED CHILD PARTICIPANT, AND THEIR HEIRS, EXECUTORS, SUCCESSORS IN INTEREST, INSURERS AND ALL OTHER PERSONAL OR LEGAL REPRESENTATIVES HEREBY IRREVOCABLY RELEASES, AGREES NOT TO SUE, AND SHALL INDEMNIFY AND DEFEND XPLORIMENT, THE LEGAL OWNER OF THE PREMISES, THE LANDLORD, MORTGAGEES, AND THE MANAGEMENT COMPANY OF THE PREMISES, ALONG WITH ANY OF THEIR LENDERS, PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, HEIRS, ASSIGNS, VOLUNTEERS, EQUIPMENT SUPPLIERS, AND THE INSURERS OF ALL OF THEM (COLLECTIVELY, THE “PROTECTED PARTIES”) FROM AND AGAINST ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, SUITS, CAUSES OF ACTION, COSTS, FEES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT OR OTHER COSTS) (THE FOREGOING COLLECTIVELY ARE THE “CLAIMS”) RELATING TO OR ARISING OUT OF (IN WHOLE OR IN PART) ANY PROPERTY DAMAGE OR BODILY INJURY (INCLUDING DEATH) TO ONE OR MORE PARTICIPANTS ALLEGED OR ACTUALLY RESULTING IN ANY WAY FROM (A) PARTICIPANTS’ USE OF THE PREMISES, (B) PARTICIPANTS’ ACTIVE OR PASSIVE PARTICIPATION IN THE ACTIVITIES, (C) LOSS OR THEFT OF PERSONAL PROPERTY, OR (D) ANY PARTICIPANTS’ NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OTHER FAULT, OR BREACH OF THIS AGREEMENT, OR (E) ANY COMBINATION OF THE FOREGOING (A)-(D). THIS RELEASE AND INDEMNITY SHALL APPLY EVEN IF ANY CLAIM IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, WILLFUL MISCONDUCT, OR ANY OTHER FAULT OF THE PROTECTED PARTIES OR ANY OTHER THIRD PARTIES. THIS INDEMNITY SHALL ALSO INCLUDE ADULT PARTICIPANTS’ OBLIGATION (EITHER DIRECTLY OR THROUGH ITS INSURER(S)) TO INDEMNIFY THE PROTECTED PARTIES FROM (X) ANY SUM OR SETTLEMENT PAID TO OR ON BEHALF OF ANY CHILD PARTICIPANT RESULTING FROM A CLAIM IN ANY WAY INVOLVING THE FOREGOING SUBSECTIONS (A) – (E) AND, (Y) ALL CLAIMS RESULTING FROM OR RELATING TO ANY INSUFFICIENCY OF AN ADULT PARTICIPANT’S LEGAL CAPACITY OR AUTHORITY TO SIGN THIS AGREEMENT FOR OR ON BEHALF OF THE CHILD PARTICIPANT.

11. Dispute Resolution. Any dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this arbitration agreement (each a “Dispute”) must be brought by the parties in their individual capacity and not as a plaintiff or class member in any purported class or representative capacity, and settled by binding arbitration before a single arbitrator administered by the American Arbitration Association (AAA) per its Commercial Industry Arbitration Rules in effect at the time the demand for arbitration is filed. Judgment on the arbitration award may be entered in any federal or state court having jurisdiction thereof. The arbitrator shall have no authority to award punitive or exemplary damages. If the Dispute cannot be heard by the AAA for any reason, the Dispute shall be heard by an arbitrator mutually selected by the parties. If the parties cannot agree upon an arbitrator, then either party may petition an appropriate court to appoint an arbitrator. Arbitration and the enforcement of any award rendered in the arbitration proceedings shall be subject to and governed by 9 U.S.C. § 1 et seq. Participants hereby irrevocably waive any argument that this dispute resolution clause is unenforceable for any reason or on any basis. Similarly, to the full extent permitted by applicable law, Participants hereby voluntarily, with full understanding of the legal consequences and after consulting with personal legal counsel (or electing not to do so) hereby irrevocably waive any right to bring any dispute arising out of or related to this Agreement in a state or federal court of competent jurisdiction, instead reserving all such legal disputes resolution through this mutual arbitration election.

12. License. Xploriment utilizes image or video recordings on the Premises for security of Participants and the Premises. Image and Video recordings may also be subject to use for advertising purposes. Participants irrevocably grant Xploriment the right to use all or a portion of an image or video of Participants in media for advertising or for security of Participants and Premises without compensation. Participants hereby waive the right to inspect or approve versions of images or videos used for publication or the written copy that may be used in connection with the images/videos. Participants further release Xploriment from any claims relating to the use of Participants’ statements, videos, or images, including any claims of defamation, invasion of privacy, infringement of moral rights, rights of publicity, or copyright.

13. Legal Authority. The Adult Participant signing this Agreement on behalf of his/her spouse, child, family member, friend, minor child, or other person, hereby states that he/she has the unconditioned legal authority and such person’s actual and implied authority to sign this Agreement on their behalf, irrevocably binding him/herself any such others to the waiver, release, indemnity, dispute resolution, license, and all other terms/obligations herein.

14. Acknowledgments. Participants state that this Agreement is a complete and final Waiver and Indemnity agreement, that Participants are voluntarily entering into this Agreement, and no representations, promises, or statements made by any of the Protected Parties has influenced Participants in signing this Agreement. Participants further agree: that there are no oral agreements, representations, promises, or warranties that are not expressly set forth herein; that this Agreement may only be modified in writing; that whenever used herein, the singular number will include the plural, the plural will include the singular, and the use of any gender will be applicable to all genders; that Participant is not relying on any statements or representations of the Protected Parties that are not expressly contained herein; and, that this Agreement is binding upon and inures to the benefit of the heirs, assigns, and successors in interest of the Participants. Participants expressly agree that this Agreement is intended to be as broad and inclusive as is permitted by the laws of the state in which the Premises is located and that if any portion thereof is held invalid, that the balance will, notwithstanding such partial invalidity, continue in full legal force and effect. Venue for any action brought hereunder or due to Participants’ use of the Premises or participation in the Activities will lie in the County in which the Premises is located. The substantive laws of the Texas apply. By signing below, Participants authorize Xploriment to communicate with Adult Participant via email, with updates, news, advertisements, and offers.

15. Representations by Participants. Participants hereby represent and agree as follows: a. Participants shall obey all rules while participating in the Activities and alert the staff of any rule violations, dangerous or threatening behavior by any person on the Premises, or any observed safety hazards. b. Participants have reviewed the available Activities, regardless of whether during a normal admission to the Premises or during a Day Camp, and all Participants possess a sufficient level of skill, general health, and physical fitness for safe participation in such Activities. c. Participants shall only attempt Activities that Participants can perform safely. d. Participants have received either medical clearance from his/her/their physician prior to participation in the Activities or has determined that such clearance is not necessary for his/her/their safe participation in the Activities. e. Xploriment may, but shall not be obligated or required to, administer to Participants emergency aid, CPR, and use an AED (defibrillator), secure emergency medical care or transportation (i.e. EMS), and Participants shall assume all costs of emergency medical care and transportation. f. Participants shall immediately discontinue participation in the Activities if any Participants feel any unusual discomfort (e.g., faintness, shortness of breath, high anxiety, or chest pains), or if Participants determine that such Activities are hazardous or unsafe for any reason. g. Participants consent to Xploriment communicating with Adult Participant via telephone or email and to receiving from Xploriment on his/her wireless device mobile service commercial messages. Participants acknowledge that he/she may revoke his/her consent at any time. h. Xploriment may immediately terminate access to the Premises of an Adult Participant or Child Participant (or both) without prior notice, if in Xploriment’s sole discretion, it (through any of its employees or representatives) determines that such participants are in violation of any of Xploriment’s rules or are otherwise a safety risk to or are negatively impacting the customer experience of any other participants. 

BY SIGNING THIS AGREEMENT, I STATE THAT I HAVE HAD A SUFFICIENT OPPORTUNITY TO READ THIS AGREEMENT, I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND I AGREE (FOR MYSELF AND FOR ANY CHILD PARTICIPANT I AM BRINGING TO XPLORIMENT) TO BE BOUND TO ALL TERMS AND OBLIGATIONS IN THIS AGREEMENT.