Release and Waiver of Liability Agreement

Splashway, LLC (“Owner”) is the owner of property known as Splashway Waterpark & Campground located in Sheridan, Texas (“Premises”), and is willing to permit the individuals signing this Agreement (and their accompanied minor children) to use the Premises for the purpose of utilizing the water park, campground, and their respective attractions and activities in strict accordance with the applicable rules related thereto (the “Activities”), upon the terms and conditions of this Agreement.

For good and valuable consideration, including but not limited to being provided access to and use of the Premises, the undersigned, on behalf of themselves and any minor children accompanied on the Premises by the undersigned, hereby stipulates and agrees:

1. Use of Premises.

a. I understand and agree that I may only use the Premises for the purposes set forth in this Release and Waiver of Liability Agreement for the date(s) that I have purchased a valid ticket or are otherwise granted access to use the Premises. I further agree that I am responsible for the proper use and care of the Premises and any of Owner’s property thereon, and that I will be liable for the replacement cost of any Owner property which is damaged, destroyed or lost.

b. I grant permission and agree to participate personally, and/or allow participation by each minor child accompanied by me into and on the Premises to participate in the Activities, but only to the extent that their physical and medical condition will allow. I understand that I am solely responsible for determining which Activities, if any, each minor child can participate in based on my understanding of such child’s physical and medical condition. I hereby represent and warrant that each minor child does not have any physical or medical condition or limitation that I am aware of that might have the effect of making it more likely that they may be involved in an accident or occurrence resulting in injury to themselves or others.

c.  I understand that children, particularly children aged 8 or under and those that are inexperienced or weak swimmers, are at much higher risk of drowning or other injury. It is my responsibility to ensure that each minor child is supervised by an adult at all times. To keep a child safe, adult supervision must include full, continuous supervision in close enough proximity to the child to react and provide aid to the child immediately if needed. I agree that any minor child accompanied by me into and on the Premises will be under my or another adult in my group’s direct supervision at all times while engaging in the Activities.

d.  I agree to ensure each minor child undertakes the Activities in accordance with the rules and regulations posted within the waterpark, campground, and surrounding area of the Premises and in accordance with all oral instructions and/or admonitions of Splashway employees, agents, and personnel.

e. I acknowledge, consent, and agree that I am responsible for the safety of each minor child that I accompany into and on the Premises and the safety of their possessions while undertaking Activities and on the Premises, and acknowledge that the minor children will not be supervised by Splashway personnel. If either I or the child participates in the Activities, I represent that we are doing so of our own free will and only after I have satisfied myself that the child has received and understood instructions pertaining to the rules and regulations posted within the Premises and/or given orally and our obligations in undertaking the Activities.

f.  I understand that minors cannot sign this waiver and that I, as the parent, legal guardian, or authorized custodian of such minor child, am responsible for ensuring their compliance with all rules and regulations related to the Premises and the Activities, and with their compliance with this Agreement.

2.  Assumption of Risk. I understand and acknowledge that the Activities that take place on the Premises may be dangerous and may involve the risk that I, or the minor children accompanied by me into and on the Premises, will sustain serious injury, temporary or permanent disability, death, and/or property damage. I understand that the Activities that take place on the Premises may not be supervised and that the Owner of the Premises does not provide medical services. I further acknowledge that any injury I or any minor child may sustain while on the Premises may be compounded by negligent or delayed medical service. I VOLUNTARILY AND FREELY ASSUME ALL RISKS AND DANGERS THAT MAY OCCUR PURSUANT TO MY AND SUCH MINOR CHILD(REN) USE OF AND PARTICIPATION OF ACTIVITIES ON THE PREMISES, INCLUDING THE RISK OF INJURY, DEATH, OR PROPERTY DAMAGE, including but not limited to:

a. Drowning;

b. Disease;

c. Fractures;

d. Eye injuries that may result in blindness;

e. Heart attack;

f. Heat stroke;

g. Sunburn and other skin irritation or injury;

h. Cuts and infection;

i.  Muscle strain;

j. Exposure to cleaning solvents and other chemicals;

k. Contaminated water;

l. Actions of myself or others participating in the Activities which may result in injury;

m. Falls and/or ejections from slides or other waterpark equipment including but not limited to tubes, rafts, mats, towers, steps, stairs, etc.;

n.  Diseases or infections transmittable in the public domain;

o.  Collisions with other participants on slides or other equipment;

p. Encounters with insects, reptiles, or other wildlife;

q. Exposure to extreme weather conditions, including heat, cold, wind, rain, hail, lightning, tornados; and

r. Other conditions that may diminish reaction times and increase risk of accidents.

I UNDERSTAND THAT THE ACTIVITIES THAT TAKE PLACE ON THE PREMISES MUST BE IN ACCORDANCE WITH THE RULES FOR USE LOCATED ON THE PREMISES.

IN CONSIDERATION OF THE PRIVILEGE TO ACCESS THE PREMISES AND PARTICIPATE IN THE ACTIVITIES, I, ON BEHALF OF MYSELF AND EACH AND EVERY MINOR CHILD ACCOMPANIED BY ME INTO AND ON THE PREMISES, VOLUNTARILY AND FREELY AGREE AND CONSENT TO PARTICIPATION IN THE ACTIVITIES AND ACCEPT AND ASSUME ALL RISKS ASSOCIATED WITH THE ACTIVITIES.

3. Administration of Emergency Medical Treatment. I understand and agree that I may have to exercise extra care for my own person and for situations described in Section 2. I further understand that there may not be rescue or medical facilities or expertise at the Premises necessary to deal with any injuries or damages to which I may be exposed.

4. Release from Liability. I HEREBY AGREE, ON BEHALF OF MYSELF, MY HEIRS, AND MY PERSONAL REPRESENTATIVES, AND ON BEHALF OF EACH MINOR CHILD FOR WHICH I AM THE PARENT OR LEGAL GUARDIAN, TO FULLY AND FOREVER DISCHARGE AND RELEASE OWNER AND ITS AFFILIATES, AND THEIR RESPECTIVE PARTNERS, AGENTS, OPERATORS, MANAGERS, EMPLOYEES, AND REPRESENTATIVES (“RELEASED PARTIES”) FROM ANY AND ALL CLAIMS I MAY HAVE OR HEREINAFTER HAVE FOR ANY INJURY, TEMPORARY OR PERMANENT DISABILITY, DEATH, DAMAGES, LIABILITIES, EXPENSES, AND/OR CAUSES OF ACTION, NOW KNOWN OR HEREINAFTER KNOWN IN ANY JURISDICTION IN THE WORLD, ATTRIBUTABLE TO OR RELATING IN ANY MANNER TO MY ENTRY UPON AND USE OF THE PREMISES, WHETHER CAUSED BY THE NEGLIGENCE OF THE OWNER OR ANY OF THE RELEASED PARTIES OR BY ANY OTHER REASON. I ACKNOWLEDGE AND AGREE THAT THIS RELEASE AND WAIVER OF LIABILITY IS INTENDED TO BE, AND IS, A COMPLETE RELEASE OF ANY RESPONSIBILITY OF THE RELEASED PARTIES FOR ANY AND ALL PERSONAL INJURIES, TEMPORARY OR PERMANENT DISABILITY, DEATH, AND/OR PROPERTY DAMAGE SUSTAINED BY ME WHILE ON OR USING THE PREMISES.

5. Covenant Not to Sue. I agree, for myself and all my heirs and my personal representatives, and on behalf of each minor child for which I am the parent or legal guardian not to sue the Released Parties or initiate or assist in the prosecution of any claim for damages or cause of action against the Released Parties which I or my heirs may have as a result of any personal injury, death, or property damage I or such minor children may sustain while on or using the Premises.

6. Indemnification. I HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS OWNER AND THE RELEASED PARTIES FROM AND AGAINST ANY THIRD PARTY LOSSES, DAMAGES, ACTIONS, SUITS, CLAIMS, JUDGMENTS, SETTLEMENTS, AWARDS, INTEREST, PENALTIES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) AND COSTS OF ANY KIND FOR ANY PERSONAL INJURY, LOSS OF LIFE OR DAMAGE TO PROPERTY SUSTAINED BY REASON OF OR ARISING OUT OF USE OF THE PREMISES OR PARTICIPATION IN ANY ACTIVITIES ON THE PREMISES BY ME, MY CHILD, A CHILD FOR WHICH I AM LEGAL GUARDIAN, OR BY ANY MINOR CHILD ACCOMPANIED BY ME INTO OR ON THE PREMISES.

7. Responsibility for Personal Property. I acknowledge and agree that I am fully and solely responsible for any of my property and personal belongings and for the personal property and belongings of minor children accompanied by me into or on the Premises brought onto the Premises and that Owner will not be responsible for or provide any security for my property and personal belongings.

8. Permission for Use of Photography or Videographic Images. I agree to permit Owner, its representatives, agents, and employees, and other guests on the Premises, to take photographs, film records, video recordings, and audio recordings of the Activities described in this Agreement which may include depictions or recordings of me and/or any minor children that I accompany into or on the Premises. I understand and agree that such photographs, film records, video recordings, and audio recordings may be taken with or without my knowledge and may be used for commercial and/or promotional purposes.

9. No Representations by Owner. I acknowledge and understand that Owner makes no representation as to the condition of the Premises or the safety of any structures or equipment that may be used at the Premises. I accept and shall use the Premises in its “AS IS” condition. I acknowledge and agree that I am not relying upon any representation or statement by the Owner or the Owner’s employees, agents, or representatives regarding this agreement or the Premises, except to the extent such representations are expressly set forth in this agreement.

10. Governing Law and Venue. This Release and Waiver of Liability Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. I agree that any action arising out of this Release and Waiver of Liability agreement must be brought exclusively in any state or federal court located in Colorado County, Texas.

11. Arbitration. Either party has the absolute right to compel arbitration within ninety (90) days of service of process of any lawsuit filed pursuant to paragraph 10 herein. Upon the timely filing of a motion to compel arbitration, any dispute, claim, action, or controversy arising out of or related to this Agreement or the use of the Premises by me or minor children for which I am the parent or legal guardian, including but not limited to claims related to injuries or property damage, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. The arbitration shall take place exclusively in Colorado County, Texas, and the decision rendered by the arbitrator(s) shall be final and binding, except as provided herein. The arbitrator shall not have the authority to modify the powers granted to him/her under this agreement or to make any award merely on the basis of what he/she determines to be fair or just. The arbitrator shall rule only on the claims set forth in the request for arbitration, counterclaims, and the answer(s) thereto. The arbitrator’s decision may be judicially reviewed on statutory grounds listed in the Texas Arbitrations Act and on the grounds of manifest disregard for the law. Additionally, the arbitrator’s decision may also be judicially reviewed if the arbitrator commits reversible error on any of the following affirmative defenses: statute of limitations, laches, res judicata, collateral estoppel, release, waiver, payment, discharge in bankruptcy, and/or accord and satisfaction. The arbitration decision shall be entered by a state district court in Colorado County, Texas. By signing this Agreement, you waive your right to bring or participate in any class action or collection action against Owner or Released Parties and agree that any dispute shall be resolved in arbitration on an individual basis only. Each party shall bear its own costs and expenses related to arbitration. This paragraph shall not act as a waiver or in any way diminish the covenant not to sue set forth in paragraph 5 herein, and an arbitrator shall enforce such covenant unless paragraph 5 is held to be illegal, invalid, or unenforceable. 

12.  Waiver. No waiver of any term or right in this Release and Waiver of Liability agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of any party to enforce any provision of this agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this agreement thereafter.

13. Survival. Any provision of this Release and Waiver of Liability agreement providing for performance by either party after termination of this agreement shall survive such termination and shall continue to be effective and enforceable.

14. Compliance with Laws.  In the performance of the terms of this Release and Waiver of Liability agreement and use of the Premises, the parties shall comply with all applicable federal, state, regional and local laws, rules and regulations.

15. Severability. If any provision or portion of this Release and Waiver of Liability agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.

16.  Entire Agreement; Modification; Binding Effect. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to this agreement shall be valid unless in writing and signed by authorized representatives of the parties. This agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the parties.

17. Electronic Signature Consent. The execution of this Agreement by electronic means shall be deemed to constitute effective execution of the Agreement as to the parties hereto. Such electronic signatures may be used by the parties in lieu of an original signature for any and all purposes.

I HEREBY ACKNOWLEDGE THAT I HAVE FULLY READ AND UNDERSTAND EACH OF THE ABOVE PROVISIONS. I ACKNOWLEDGE THAT PRIOR TO SIGNING THIS AGREEMENT I HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY TO REVIEW THIS AGREEMENT. I AM AT LEAST EIGHTEEN (18) YEARS OF AGE AND FULLY COMPETENT, AND I EXECUTE THIS AGREEMENT VOLUNTARILY AND FOR ADEQUATE CONSIDERATION INTENDING TO BE FULLY BOUND.