PARTICIPANT AGREEMENT, WAIVER, AND RELEASE
This Participant Agreement, Waiver, and Release is made and entered into effective as of the date set forth below, if signed, or the date of acceptance or acknowledgement, whichever is earlier, by and between Participant and FCDIT. In consideration for FCDIT allowing Participant to enter the Facility and participate in any Event, Participant, for themselves and on behalf of the Related Parties, acknowledge and agree as follows:
I. DEFINITIONS
1. The following definitions shall apply as used in this Participant Agreement, Waiver, and Release:
a. “Agreement” shall mean this Participant Agreement, Waiver, and Release.
b. “Effective Date” shall mean the date of acceptance or acknowledgement of this Agreement or the date of execution of this Agreement, whichever is earlier.
c. “Event” shall mean any athletic training, evaluation, competition, or other events and/or activities, hosted, operated, offered, or overseen by FCDIT or occurring at the Facility.
d. “Facility” shall mean the UMB Bank Performance Center located at 9966 John W. Elliott Drive, Frisco, Texas 75033, and the surrounding parking lot, entryways, sidewalks, and other portions of Lot 3, Block B, Sports Village USA Subdivision of the City of Frisco, Texas.
e. “FCDIT” shall mean FCD Indoor Training, LLC, a Texas limited liability company.
f. “FCDIT Reps” shall mean FCDIT and its affiliates, associates, parents, subsidiaries, successors, directors, members, managers, officers, agents, employees, contractors, other participants, and sponsors.
g. “Participant” shall mean any individual, entity, or trust who enters, registers, attempts to register, participates, attempts to participate, competes, and/or attempts to compete in an Event. Any reference to Participant includes Participant’s parent(s) or legal guardian(s) in the event Participant is a minor.
h. “Participant Image” shall mean Participant’s legal name, initials, nickname(s), autograph, signature, voice, video or film portrayal, portrait, performance, statistics, phrases and catchphrases, photograph (still or moving), likeness, biographical information, and persona or image, or any rendering thereof.
i. “Parties” shall mean Participant and FCDIT and individually “Party.”
j. “Related Parties” shall mean any accompanying individuals, entities, trust, trustees, parties, personal representatives, heirs, spouses, guardians, executors, successors, assigns, administrators, next of kin, parents, legal guardians, and any other persons, entity, or trust acting or purporting to act on Participant’s behalf.
k. “Rules” shall mean the Official Rules of FCDIT as may be amended from time-to-time at the sole and absolute discretion of FCDIT.
II. ASSUMPTION OF RISK, WAIVER, AND RELEASE
2. In consideration of being allowed to enter the Facility and/or participate in any Event, the undersigned Participant agrees to acknowledges, covenants, represents, and warrants that Participant shall waive, release, and discharge FCDIT and the FCDIT Reps from any claim, cause of action, liability, and/or assertion of liability and damages associated with or relating in any way to the Event. Participant is solely responsible for reading and understanding the Agreement and complying with the Rules.
3. Participant is aware they are participating in a physical activity that may be dangerous and may cause injury and that these activities may involve severe cardiovascular stress and possible violent contact. Participant understands and acknowledges the activities involve certain risks including, but not limited to, death, illness, serious neck and spinal injuries resulting in complete or partial paralysis, brain damage, and/or serious injury to virtually all bones, joints, muscles and internal organs, and property damage. although particular rules, equipment, and personal discipline may reduce the risks associated with participating in the Event, the risk of serious injury does exist and cannot be completely eliminated.
4. Participant knowingly and freely assumes all risks, both known and unknown, even if injuries and losses arise from the negligence of FCDIT, FCDIT Reps, or others, and Participant assumes full responsibility for their participation in the Event.
5. Participant recognizes that attendance of Participant and any Related Parties at the Event is voluntary and may result in personal injury (including death), illness, and/or property damage and agrees to abide by all Rules and to stay alert and remain aware of Participant's surroundings. By enter the Facility and/or taking part in or observing in the Event, Participant, on their own behalf and on behalf of any Related Parties, acknowledges and assumes all risks and dangers associated with being a participant and/or spectator at an event or otherwise present at the Facility, whether any such risk or danger occurs prior to, during or subsequent to the Event, including specifically (but not exclusively) the danger of being injured by soccer balls, athletic equipment, other persons; or the negligence or misconduct of other participants or attendees or Participant themselves. Participant, on their own behalf and on behalf of any Related Parties, agrees that FCDIT and the FCDIT Reps will not be responsible for any personal injury (including death), illness, property damage, or other loss suffered as a result of Participant's and/or any Related Parties' participation in, attendance at, and/or observation of the Event and/or the sole, joint, or comparative negligence, or strict liability, of FCDIT and/or the FCDIT Reps.
6. ON THEIR OWN BEHALF AND ON BEHALF OF ANY RELATED PARTIES, PARTICIPANT WAIVES, RELEASES, DISCHARGES, HOLDS HARMLESS, AND COVENANTS NOT TO SUE FCDIT AND/OR FCDIT REPS WITH RESPECT TO ANY CLAIM, LIABILITY OR DEMAND OF WHATEVER KIND OR NATURE, EITHER IN LAW OR IN EQUITY, THAT MAY ARISE IN CONNECTION WITH, OR RELATE IN ANY WAY TO, (A) THE USE OF THE FACILITY BY PARTICIPANT AND/OR ANY RELATED PARTIES; OR (B) PARTICIPANT'S OR ANY RELATED PARTIES' PRESENCE AT THE FACILITY, AND/OR PRESENCE AT THE EVENT; INCLUDING, WITHOUT LIMITATION, THOSE CLAIMS THAT ARISE AS A RESULT OF: (I) IN WHOLE OR IN PART, THE SOLE, JOINT, OR COMPARATIVE NEGLIGENCE, OR STRICT LIABILITY, OF FCDIT AND/OR THE FCDIT REPS, AND/OR (II) THE INHERENT RISKS ASSOCIATED WITH VISITING THE FACILITY AND/OR THE EVENT, INCLUDING, WITHOUT LIMITATION (I) ALL CLAIMS DERIVING FROM MATTERS REFERENCED IN SECTION 5 ABOVE; (II) ALL CLAIMS FOR PERSONAL INJURIES OR WRONGFUL DEATH; AND/OR (III) ALL CLAIMS FOR INVASION OF PRIVACY, DEFAMATION, VIOLATION OF ANY RIGHT OF PUBLICITY, RIGHT OF PRIVACY OR ANY OTHER CAUSE OF ACTION ARISING OUT OF THE PRODUCTION, REPRODUCTION, DISTRIBUTION, TRANSMISSION, PUBLICATION, PUBLIC PERFORMANCE, BROADCAST OR EXHIBITION OF ADVERTISEMENTS, PROMOTIONS, CONTENT, EVENTS AND/OR MATERIALS IN WHICH RECORDINGS OR PHOTOGRAPHS OF PARTICIPANT OR ANY RELATED PARTIES FROM THE EVENT APPEAR (COLLECTIVELY, THE "RELEASED CLAIMS").
7. The acknowledgements and express assumptions of risk, waivers of claims, and releases of liability contained herein are intended to be binding and full waivers of claims and releases of liability, and interpreted to be as broad and inclusive as is permitted by law, including with respect to any controversy, claim or dispute that may arise. If any part hereof is held to be invalid or legally unenforceable for any reason, the remainder of the Agreement shall not be affected thereby and shall remain valid and fully enforceable. BY ATTENDING AND/OR PARTICIPATING IN THE EVENT, PARTICIPANT, ON HIS/HER OWN BEHALF AND ON BEHALF OF ANY RELATED PARTIES, IS DEEMED TO HAVE GIVEN A FULL RELEASE OF LIABILITY TO FCDIT AND THE FCDIT REPS TO THE FULLEST EXTENT PERMITTED BY LAW.
8. IF MINOR(S) AND/OR OTHER RELATED PARTIES ATTEND THE EVENT AND/OR THE FACILITY WITH PARTICIPANT, PARTICIPANT IS DEEMED TO HAVE GIVEN ALL OF THE FOREGOING GRANTS OF RIGHTS, RELEASES AND WAIVERS ON BEHALF OF: (A) SUCH MINOR(S) AS THEIR PARENT OR LEGAL GUARDIAN OR AS THE AUTHORIZED AGENT OF THEIR PARENT OR LEGAL GUARDIAN; AND/OR (B) SUCH OTHER RELATED PARTIES, AS THEIR AUTHORIZED AGENT. IF PARTICIPANT DOES NOT WISH TO OR IS NOT AUTHORIZED TO GRANT SUCH RIGHTS, RELEASES AND WAIVERS ON BEHALF OF: (I) SUCH MINOR(S), PARTICIPANT SHOULD IMMEDIATELY LEAVE THE EVENT WITH THOSE MINOR(S); AND/OR (II) ANY OTHER RELATED PARTY, SUCH RELATED PARTY SHOULD IMMEDIATELY LEAVE THE EVENT.
III. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
9. Participant will indemnify, defend and hold harmless FCDIT and FCDIT Reps from and against any and all demands, suits, claims, costs (including reasonable attorneys' fees and expenses), expenses and liability arising out of, incidental to or related in any way to (i) Released Claims, (ii) Participant's and/or any Related Parties' acts or omissions, or (iii) Participant's breach of any of the terms, conditions or representations made in the Agreement. PARTICIPANT AGREES THAT THE INDEMNITY OBLIGATIONS AND LIABILITIES ASSUMED HEREIN ARE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE OF FCDIT AND/OR FCDIT REPS.
10. FCDIT and FCDIT Reps shall not be liable to Participant and/or related parties for any exemplary, punitive, special, incidental, or consequential damages, including, but not limited to, travel mental anguish, pain and suffering, arising from any act or omission in performance or failure to perform under this Agreement whether such claim is based in contract, tort, or local, state, or federal law. Participant, for themselves and on behalf of related parties, hereby releases, discharges, and waives any claim to such damages that may be set forth against FCDIT and/or FCDIT Reps.
IV. WAIVER AND RELEASE OF NAME, IMAGE, AND LIKENESS
11. Participant grants to FCDIT and FCDIT Reps a non-exclusive, perpetual, worldwide, irrevocable, royalty-free, and freely sub-licensable right to reproduce, distribute, promote, sell, market, display, perform, advertise, or otherwise use the Participant Image on or in connection with advertisement, marketing, and promotion of FCDIT and FCDIT Reps’ business and operation and associated, related, and/or derivative use of the same in, including but not limited to, television, print, social media, web sites and Internet, broadcast, production, exhibition, exploitation, sale, distribution, advertising, marketing, promotion, educational and/or any other type of audio-visual projects (hereinafter collectively “Production”), in any medium now known or hereafter developed (including, without limitation, the right to use or license excerpts or stills from the Production for any purpose). Participant waives any right to inspect or approve the use of Participant Image in any Production.
V. MISCELLANEOUS
12. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions, unless the absence of such invalid or unenforceable provision materially and adversely affects the right or obligations of either Party hereto.
13. Any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, Acts of God, inability to obtain labor or materials or reasonable substitutes therefore, governmental restrictions, governmental regulations, governmental controls, governmental action or order, enemy or hostile government action, civil commotion, fire or other casualty, financial inability and/or instability of FCDIT as determined solely by FCDIT, and other causes beyond the reasonable control of the FCDIT, shall excuse the performance by FCDIT for a period equal to any such prevention, delay, or stoppage, or not hold the Event.
14. The following provisions shall apply to dispute resolution, governing law, and venue:
a. Participant, for themselves and the Related Parties, understands that this Agreement is intended to be as broad and inclusive as permitted by the laws of the State of Texas. Any dispute relating to this agreement and/or any liability or injury resulting from participating in the Event shall be submitted to binding arbitration conducted by the American Arbitration Association and its National Sports Panel under the American Arbitration Association Commercial Rules. Any such dispute shall be submitted to a single arbitrator. Participant further agrees that the venue of any arbitration, dispute, or claim concerning, arising under, in furtherance of, pursuant to, in relation to, or arising out of this Agreement shall be in Collin County, Texas and shall be construed in accordance with the laws of the State of Texas.
b. If any Party(ies) commences litigation in a state or federal court in violation of the terms of this Agreement, the party(ies) shall be ordered to pay and shall reimburse the other Party(ies) for all attorneys’ fees, costs, and expenses incurred in seeking abatement, stay, or dismissal of such litigation and enforcement of the arbitration provisions of this agreement. Such payment and reimbursement shall be made within ten (10) days of any such order.
c. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas in all respects, including matters of construction, interpretation, validity, and enforcement. If any provision of this Agreement is prohibited by law, such prohibition shall not affect the validity of the remaining provisions of this Agreement. Venue for any litigation, dispute, or claim concerning, arising under, pursuant to, in relation to, or arising out of this Agreement shall be in COLLIN County, Texas.
d. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
e. IF MINOR(S) AND/OR OTHER RELATED PARTIES ATTEND THE EVENT WITH PARTICIPANT, PARTICIPANT IS DEEMED TO HAVE AGREED TO THIS ARBITRATION AGREEMENT ON BEHALF OF: (A) SUCH MINOR(S) AS THEIR PARENT OR LEGAL GUARDIAN OR AS THE AUTHORIZED AGENT OF THEIR PARENT OR GUARDIAN; AND/OR (B) OTHER RELATED PARTIES, AS THEIR AUTHORIZED AGENT. IF PARTICIPANT DOES NOT WISH TO OR IS NOT AUTHORIZED TO MAKE SUCH AGREEMENT ON BEHALF OF: (I) ANY MINOR, PARTICIPANT SHOULD IMMEDIATELY LEAVE THE EVENT AND FCDIT FACILITIES WITH THOSE MINOR(S); AND/OR (II) ANY OTHER RELATED PARTIES, SUCH RELATED PARTIES SHOULD IMMEDIATELY LEAVE THE HOST VENUE.
15. THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FROM THE EFFECTIVE DATE UNTIL TERMINATED BY EITHER PARTY.
The undersigned has read the foregoing Agreement and has taken the time necessary to completely review and understand the Agreement. The undersigned has read each and every paragraph, term and/or provision of this Agreement and has considered each and every result and consequence of its execution by THEM. Moreover, the undersigned fully understands the Agreement, accepts and agrees to each and every paragraph, term and/or provision contained in it, and fully accepts and agrees to it as binding upon THEM for any and all purposes whatsoever.
THE UNDERSIGNED EXECUTES THIS AGREEMENT IN ACCORDANCE WITH THEIR OWN FREE WILL AND REVIEW AND CONSIDERING THE TERMS OF THE AGREEMENT WITH REASONABLE DILIGENCE. THE UNDERSIGNED WARRANTS THAT THEY HAVE THE MENTAL CAPACITY TO EXECUTE THIS AGREEMENT AND THE WHEREWITHAL TO DO SO.
This is to certify that I, as parent/guardian with legal responsibility for this Participant, do consent and agree to THEIR release as provided above of FCDIT and FCDIT Reps, and for myself, my heirs, assigns, and next of kin, I release and agree to indemnify and hold harmless FCDIT and FCDIT Reps from any and all liability incident to my minor child’s involvement or participation in the Event as provided above, even if arising from their negligence, to the fullest extent permitted by law.