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Moaning Caverns Adventure Park

ACTIVITIES WAIVER

WARNING, ASSUMPTION of RISK, LIABILITY RELEASE, INDEMNITY and HOLD HARMLESS AGREEMENT

PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS. This release may be executed and delivered electronically or by facsimile. Electronic or facsimile copies shall constitute originally signed copies requiring no further execution and shall have the same force and effect as originals. This release shall be effective at all California locations managed, operated or owned by Moaning Caverns Operating LLC dba Moaning Caverns or Moaning Caverns Adventure Park upon execution.

In consideration for gaining access to Moaning Caverns Adventure Park, its property, caves, rides, tours and attractions located at 5350 Moaning Cave Road, Vallecito, CA (County of Calaveras) (the Location) and engaging the services of Moaning Caverns or any other location within the state of California, d/b/a Moaning Caverns or Moaning Caverns Adventure Park/ Moaning Caverns Operating LLC their agents, owners, officers, directors, representatives, assigns, affiliates, volunteers, participants, employees, insurers, and all other persons or entities acting in any capacity on their behalf, (herein after collectively referred to as Moaning Caverns), I on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representatives, estate, and insurers agree as follows:

THE UNDERSIGNED agree and understand that the ATTRACTIONS: Zip Lines, Climbing Walls, SLUICE BOX, or a CAVE TOUR, any or all of them, (hereinafter the ACTIVITY/ ACTIVITIES) can be HAZARDOUS AND INVOLVE THE RISK OF PHYSICAL INJURY OR DEATH. The person who is participating in the ACTIVITY/ ACTIVITIES: any or all of them at Moaning Caverns Adventure Park shall be referred to hereinafter as PARTICIPANT. THE UNDERSIGNED means only the PARTICIPANT when the PARTICIPANT is age 18 or older and signs for themselves OR it means both the PARTICIPANT and the PARTICIPANTs parent or legal guardian when the PARTICIPANT is under the age of 18.

THE UNDERSIGNED agree and understand that there are risks associated with strenuous physical exertion and with participating in the ACTIVITY/ ACTIVITIES that falls, INJURIES AND/OR DEATH may result from engaging in the ACTIVITY or ACTIVITIES. THE UNDERSIGNED agree and understand that risks include, but are not limited to: use of equipment, harnesses, helmets, cables and ropes, equipment failure, improper use of equipment, slipping, falling, varied surfaces, natural and manmade hazards, surface and environmental conditions, changing weather conditions, uneven and/or slippery ground or track conditions; varying slopes and surface conditions; variations in terrain; bumps, collisions with natural and manmade objects, the condition of the PARTICIPANT, dehydration, and high elevation.

I acknowledge that my participation in ACTIVITY or ACTIVITIES entails known and unanticipated risks that could result in physical or emotional injury including, but not limited to broken bones, sprained or torn ligaments, paralysis, death, or other bodily injury or property damage to myself, my child(ren), or to third parties. Equipment used in the activity may break, fail or malfunction despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others. I understand that such risks simply cannot be completely eliminated without jeopardizing the essential qualities of the activity. I expressly agree and promise to accept and assume all the risks existing in this activity, including but not limited to injury, illness, damage or death. My and/or my child(ren)s participation in this activity is purely voluntary and I elect to participate or allow my children to participate in spite of the risks. In consideration for allowing the PARTICIPANT to participate in the ACTIVITY, THE UNDERSIGNED hereby ASSUME ALL RISKS associated with the PARTICIPANT’s participation in the ACTIVITY. Additionally, THE UNDERSIGNED AGREE TO HOLD HARMLESS, RELEASE, DEFEND AND INDEMNIFY Moaning Caverns Operating LLC dba Moaning Caverns Adventure Park, affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, members, managers, officers, directors, and shareholders (each hereinafter a RELEASED PARTY) FOR ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from the PARTICIPANTs participation in the ACTIVITY, including those claims based on any RELEASED PARTYs alleged or actual NEGLIGENCE or BREACH OF any express or implied WARRANTY.

THE UNDERSIGNED take full responsibility for any injury or loss to PARTICIPANT, including death, which PARTICIPANT may suffer, arising in whole or in part out of the ACTIVITY. By signing this release, THE UNDERSIGNED AGREE NOT TO SUE any RELEASED PARTY and agree they are releasing any right to make a claim or file a lawsuit against any RELEASED PARTY. THE UNDERSIGNED further AGREE TO DEFEND AND INDEMNIFY each RELEASED PARTY for any and all claims of THE UNDERSIGNED and/or a THIRD PARTY arising in whole or in part from the PARTICIPANTs participation in the ACTIVITY. THE UNDERSIGNED agree to pay all costs and attorney’s fees incurred by any RELEASED PARTY in defending a claim or suit brought by or on behalf of THE UNDERSIGNED.

THE UNDERSIGNED recognize that seat belts and or harnesses are required on the Zip Lines and Climbing Walls and PARTICIPANT agrees to wear a seat belt and or harness and use them for the purpose and in the manner they we designed at all times while participating in the ACTIVITY. THE UNDERSIGNED understand and agree that a seat belt or harness and helmets ARE IN NO WAY A GUARANTEE OF SAFETY and that no seat belt or harness or helmet can protect the wearer against all foreseeable impacts to the head or body, and that the ACTIVITY and other related activities can expose the user to forces that exceed the limits of protection provided by a seat belt, harness or helmet. THE UNDERSIGNED also understand that a seat belt and or harness do not guard against injury to the head, neck, spine or any other part of the body, and that these limitations are INHERENT RISKS of the ACTIVITY.

THE UNDERSIGNED represent that the PARTICIPANT is in good health and there are no special problems or needs associated with his/her participating in ANY ACTIVITY at the Location.

If I and/or my child(ren) are injured, I acknowledge that I or my child(ren) may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurer(s). I UNDERSTAND AND AGREE THAT MOANING CAVERNS OPERATING LLC WILL NOT PAY FOR ANY COST OR EXPENSES INCURRED BY ME IF I AND/OR MY CHILD ARE INJURED UNLESS SUCH INJURY WAS CAUSED BY THE GROSS NEGLIGENCE OF MOANING CAVERNS OPERATING LLC. In consideration of Moaning Caverns allowing my participation in/on the activities, I for myself and on behalf of my child(ren) and/or legal ward, heirs, administrators, personal representatives, or assigns, do agree to indemnify, defend, hold harmless, release and discharge Moaning Caverns of and from all claims, demands, causes of action, and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to Moaning Caverns ordinary negligence or the negligence of others: and I, for myself and on behalf of my child(ren) and/or legal ward, heirs, administrators, personal representatives, or any assigns, further agree that except in the event of Moaning Caverns gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against Moaning Caverns for any economic or non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child(ren) that are in any way associated with Moaning Caverns activities, or the use of Moaning Caverns facilities.

THE UNDERSIGNED authorize any RELEASED PARTY and/or their authorized personnel to call for medical care for the PARTICIPANT or to transport the PARTICIPANT to a medical facility or hospital if, in the opinion of such personnel, medical attention is needed. THE UNDERSIGNED agree that upon the PARTICIPANT'S transport to any such medical facility or hospital that the RELEASED PARTY shall not have any further responsibility for the PARTICIPANT.

Should Moaning Caverns or anyone acting on their behalf be required to incur attorney’s fees and costs to enforce this Agreement, I for myself and on behalf of my child(ren), and/or legal ward, heirs, administrators, personal representatives or assigns, agree to indemnify and hold them harmless for all such fees and costs. Further, THE UNDERSIGNED agree to pay all costs associated with such medical care and related transportation provided for the PARTICIPANT and shall indemnify and hold harmless the RELEASED PARTY from any costs incurred therein, or any claims arising therefrom.

In consideration for allowing the PARTICIPANT to participate in the ACTIVITY OR ACTIVITIES and for using the Moaning Caverns facilities, THE UNDERSIGNED agree that ANY AND ALL CLAIMS for injury and/or death arising from the PARTICIPANTs participation in the ACTIVITY shall be GOVERNED BY CALIFORNIA LAW and EXCLUSIVE JURISDICTION of any claim shall be in the DISTRICT COURT residing where the alleged incident occurred or in the FEDERAL COURT FOR THE STATE OF CALIFORNIA.

I certify that I and/or my children are physically able to participate in all activities at the Location without aid or assistance. I further certify that I am willing to assume the risk of any medical or physical condition that I and/or my children may have whether known or unknown. I acknowledge that I have read the rules, (the Moaning Caverns Ride/Activity Rules) posted at the entry to each ride/activity or tour governing my and/or my child(ren)s participation in any activities at the Location. I certify that I have explained the Moaning Caverns Ride/Activity Rules to the child(ren) listed in this waiver. I understand that the Moaning Caverns Ride/Activity Rules have been implemented for the safety of all guests at the Location, including myself and/or my child(ren). I acknowledge that failure to follow the rules could result in the expulsion of me and/or my child(ren) from the Location. I agree that if any portion of this Agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect. If there are any disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren) may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and pursuant to California law. I further agree that the arbitration will take place solely in the state of California and that the substantive law of California shall apply. This release shall be binding upon the assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives of THE UNDERSIGNED. If, despite the representations made in this agreement, I or anyone on behalf of myself and/or my child(ren) file or otherwise initiate a lawsuit against Moaning Caverns, in addition to my agreement to defend and indemnify Moaning Caverns, I agree to pay within 60 days liquidated damages in the amount of $5,000 to Moaning Caverns. The binding arbitration clause is material and a breach of this provision would result in damages which would be difficult to estimate. I agree that $5,000 liquidated damages is reasonable and not punitive. Should I fail to pay this liquidated damages amount within the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount calculated at 12% per annum.

In the case of a minor PARTICIPANT, the undersigned parent or legal guardian acknowledges that he/she is also signing this release on behalf of the listed or named minor PARTICIPANT and that the minor PARTICIPANT shall be bound by all the terms of this release; the parent or legal guardian understands that he/she is waiving certain rights on behalf of the minor that the minor otherwise may have now or in the future Additionally, by signing this release as the parent or legal guardian of a minor STUDENT, the parent or legal guardian understands that he/she is waiving certain rights on behalf of the minor that the minor otherwise may have now or in the future. The undersigned parent or legal guardian(s) agree that but for the foregoing, the minor PARTICIPANT would not be permitted to participate in the ACTIVITY.

By signing this release without a parent or guardians signature, the PARTICIPANT represents that he/she is at least 18 years of age, or, if signing as the parent or guardian of the PARTICIPANT, you represent that you are the legal parent or guardian of the minor PARTICIPANT AND ACCEPT FULL RESPONSIBILITY.

I further grant Moaning Caverns the right, without reservation or limitation, to videotape, and/or record me and/or my child(ren) on closed circuit television. I further grant Moaning Caverns the right, without reservation or limitation, to photograph, videotape, and/or record me and/or my child(ren) and to use my or my child(ren)'s name, face, likeness, voice and appearance in connection with exhibitions, publicity, advertising and promotional materials without compensation.

PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS. By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a claim or lawsuit against Moaning Caverns Operating LLC.

  I have had sufficient opportunity to read this entire document. I understand this Agreement and I voluntarily agree to be bound by its terms. I further certify that I am the parent or legal guardian of the child(ren) listed on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the child(ren) listed above.

 You agree voluntarily signing this agreement. You understand you are giving up certain legal rights.

 By signing this you understand you cannot sue for any reason.  If you do sue you cannot collect any money. If you sue and you lose you will owe us money

 I HAVE CAREFULLY READ THE FOREGOING LIABILITY RELEASE, UNDERSTAND ITS CONTENTS, AND AM AWARE THAT I AM RELEASING CERTAIN LEGAL RIGHTS THAT I OTHERWISE MAY HAVE.