HOLD HARMLESS, RELEASE & INDEMNIFICATION AGREEMENT
This Agreement (the “Agreement”), dated above (the “Effective Date”) is by and between South Coast Water Polo Club, Inc., a California corporation (“South Coast”) and "Swimmer”, (name of swimmer inserted above ) and parent(s) or legal guardian(s) if swimmer is under age of 18 (name(s) inserted above).
Swimmer’s parent(s) or legal guardian(s) (collectively, “Swimmer’s Parent”), if Swimmer is under the age of 18, with regards to the following facts:
WHEREAS, South Coast owns and operates that certain water polo and swimming team and club, through which participants play, practice, train and/or compete for both water polo and competitive and fitness swimming;
WHEREAS, South Coast leases certain pool time from various pool owners and the agents and employees of such owners (collectively, the “Owners”), so that South Coast’s swimmers and players have a place to swim, practice, train and/or compete. Those pools include, without limitation, the pools located at California Lutheran University and Oaks Christian High School, and any and all other pools at which South Coast may swim, practice, train and/or compete (collectively referred to as the “Pools” and individually a “Pool”);
WHEREAS, Swimmer has been, is or will swim, train, practice, workout and/or compete with South Coast at the Pools and has been, is or will be coached by South Coast’s coaching staff; and WHEREAS, South Coast has agreed to allow Swimmer to swim, train, practice, workout and/or compete with South Coast, on the condition that Swimmer (or Swimmer’s Parent, if Swimmer is under the age of 18 as of the Effective Date) pays all necessary dues and enters into, and executes, this Agreement.
NOW, THEREFORE, in consideration for South Coast agreeing to allow Swimmer to swim, train, practice, workout and/or compete with South Coast, the mutual covenants of the parties hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, South Coast and Swimmer (or Swimmer’s Parent, as necessary) agree as follows:
1. Assumption of Risk. Swimmer, or if Swimmer is under the age of 18, Swimmer’s Parent (who enters into this Agreement on Swimmer’s behalf), represents and warrants that he or she is an adult, and that Swimmer (or Swimmer’s Parent, if applicable) is fully informed and aware of the risks and dangers that exist and which are inherent in and to the sports of swimming and water polo, including, but not limited to, (i) loss or damage to personal property; and/or (ii) personal injury, including partial or complete paralysis, brain damage or even death, each which may occur as a result of or from drowning, tripping or falling into a Pool, diving into a Pool, tripping or falling on or onto any Pool deck, being kicked, stomped, hit or otherwise contacted by another swimmer or player, hitting any part of the body on the bottom of any Pool, being injured by other swimmer or player or otherwise injured in any other way. Swimmer (or Swimmer’s Parent, if applicable) is also fully informed and aware of the risks and dangers that exist which are inherent in and to being in and around water and swimming pools. Swimmer (or Swimmer’s Parent, if applicable) acknowledges that he or she (or Swimmer) may sustain loss or damage to personal property and/or personal injury or fatality as a result of or from the above-described risks, and/or as a result of or from any and all other risks, which may or may not be inherent or commonly related to water, swimming pools, swimming and/or water polo. SWIMMER HEREBY
ELECTS -- OR SWIMMER’S PARENT HEREBY ELECTS ON SWIMMER’S BEHALF, IF APPLICABLE -- TO VOLUNTARILY ASSUME ALL OF THE ABOVE-STATED RISKS, AND ALL OTHER RISKS THAT MAY EXIST, WHICH MAY OR MAY NOT BE RELATED TO WATER, SWIMMING POOLS, SWIMMING OR WATER POLO, REGARDLESS OF WHETHER SUCH RISKS ARE SPECIFICALLY ENUMERATED ABOVE. MOREOVER, SWIMMER (OR SWIMMER’S PARENT, IF APPLICABLE) INTENDS TO CLEARLY, EXPLICITLY AND COMPREHENSIBLY ASSUME ALL RISKS WHICH EXCEED THE INHERENT RISKS ASSOCIATED WITH SWIMMING, PLAYING WATER POLO AND/OR BEING IN OR AROUND WATER AND SWIMMING POOLS. IT IS EXPRESSLY
ACKNOWLEDGED BY SWIMMER, OR SWIMMER’S PARENT, IF APPLICABLE, THAT HE OR SHE IS ASSUMING -- OR SWIMMER’S PARENT, IF APPLICABLE, IS ASSUMING ON SWIMMER’S BEHALF -- ALL RISKS, INCLUDING THOSE WHICH EXCEED THE INHERENT RISKS ASSOCIATED WITH SWIMMING, PLAYING WATER POLO AND/OR BEING IN OR AROUND WATER AND SWIMMING POOLS.
2. Waiver of Liability. Swimmer, or Swimmer’s Parent, if applicable, hereby VOLUNTARILY DISCHARGES AND RELEASES FOREVER, AND SHALL FOREVER HOLD HARMLESS, AND AGREES NOT TO SUE SOUTH COAST, its affiliates, members, customers, clients, directors, officers, shareholders, employees, coaches, assistant coaches, volunteers, other swimmers, affiliated companies and agents (collectively, the “South Coast Releasees”) and the Owners from and against all losses, claims, judgments, damages, settlements, legal actions, proceedings or liabilities of any kind or nature, including, without limitation, attorneys’ fees (collectively, “Damages”) which are related to or arise out of Swimmer swimming, training, practicing, working out and/or competing with South Coast and/or the South Coast Releasees, no matter how incurred, including, but not limited to, any and all Damages or costs suffered or incurred as a result of Swimmer’s entry into or
being around any of the Pools, regardless of whether the injury is related to Swimmer swimming, training, practicing, working out and/or competing with South Coast and/or the South Coast Releasees and regardless of whether such Damages arise from the active or passive negligence of Swimmer, or any other third person, OR THE ACTIVE OR PASSIVE NEGLIGENCE OF SOUTH COAST, THE SOUTH COAST RELEASES OR THE OWNERS, other than Damages determined in final judgment, by a court having final jurisdiction, to be the result of South Coast’s willful misconduct, recklessness or gross negligence. SWIMMER UNDERSTANDS AND AGREES, OR, AS EVIDENCED BY HIS OR HER SIGNATURE BELOW, SWIMMER’S PARENT UNDERSTANDS AND AGREES, THAT THE ABOVE RELEASE PREVENTS HIM OR HER FROM SUING SOUTH COAST, ANY SOUTH COAST RELEASEE OR ANY OF THE OWNERS FOR ANY AND ALL SUCH DAMAGES.
3. Indemnification. Swimmer, or Swimmer’s Parent, if applicable, agrees to and shall indemnify and hold South Coast, the South Coast Releasees, the Owners and any third party harmless from any and all Damages, liabilities, costs, or expenses (including reasonable attorneys’ fees) arising
from or related to any and all injuries or Damages sustained or suffered by Swimmer, of any kind or nature, regardless of whether such injuries or Damages relate to, concern or arise out of Swimmer swimming, training, practicing, working out and/or competing with South Coast and/or the South Coast
Releasees, INCLUDING, WITHOUT LIMITATION, INJURIES SUSTAINED OR SUFFERED BY SWIMMER CAUSED BY THE NEGLIGENCE OF SOUTH COAST OR A SOUTH COAST RELEASEE, or any other swimmer, regardless of the location where such injuries or Damages are sustained, and regardless of whether Swimmer’s injuries or Damages are sustained at any Pool. ADDITIONALLY, SWIMMER, OR SWIMMER’S PARENT, IF APPLICABLE, AGREES TO AND SHALL INDEMNIFY AND HOLD SOUTH COAST AND THE SOUTH COAST RELEASEES HARMLESS FROM ANY AND ALL INJURIES OR DAMAGES SUSTAINED OR SUFFERED BY ANY THIRD PARTY CAUSED BY ANY ACTION OR INACTION OF SWIMMER.
4. Certification and Acknowledgement. Swimmer, or Swimmer’s Parent, on Swimmer’s behalf, if applicable, certifies, acknowledges and agrees to the following, by his or her signature:
a. That Swimmer has the necessary skills and abilities to participate in the above-described activities, and, on Swimmer’s own, or together with Swimmer’s Parent, if applicable, assume full responsibility for himself or herself for bodily injury, death, loss of personal property and/or expenses related thereto as a result of Swimmer’s negligence, the negligence of South Coast or that of a South Coast Releasee, or the negligence of any third party;
b. That Swimmer and, if applicable, Swimmer’s Parent, will and hereby agree to abide by the rules and/or instructions given to him or her, regardless of whether such instructions
are given orally or in writing, and regardless of whether they are given by South Coast, a South Coast Releasee, the Owners or by a third party;
c. That Swimmer has no medical problems which will be aggravated by participation in the above-described activities, or which would, under any circumstances, render Swimmer unable to participate in the above-described activities; AND
d. That Swimmer, or Swimmer’s Parent, if applicable, has thoroughly read and understands this Agreement.
5. Section 1542 Waiver. This Agreement extends to all disputes of every kind and nature by or between Swimmer (or Swimmer’s Parent, if applicable) against South Coast, any South Coast Releasee, the Owners or any third party, whether known or unknown, suspected or unsuspected, past or present, and whether or not they arise out of or are attributable to Swimmer’s participation in the above described activities. Specifically, Swimmer (or Swimmer’s Parent, if applicable) expressly waives any and all rights under Section 1542 of the California Civil Code, which reads as follows: “Section 1542. General Release. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with debtor.”
Swimmer (or Swimmer’s Parent, if applicable) acknowledges that he or she has separately bargained for the foregoing waiver of Section 1542. Swimmer (or Swimmer’s Parent, if applicable) and South Coast intend that where the provisions regarding the disputes released herein are governed by similar federal, state or other laws, all such other, similar laws are so waived by Swimmer (or by Swimmer’s Parent, if applicable).
6. Swimmer’s (or Swimmer’s Parent’s, as applicable) Consultation with Counsel. SWIMMER, OR SWIMMER’S PARENT, IF APPLICABLE, REPRESENTS THAT, IN THE
NEGOTIATION AND EXECUTION OF THIS AGREEMENT, HE OR SHE HAS HAD THE OPPORTUNITY, AND IS HEREBY ENCOURAGED, TO CONSULT WITH AN ATTORNEY. PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE ATTORNEY OF SWIMMER OR SWIMMER’S PARENT, AS APPLICABLE, IF ANY, REVIEWED THIS AGREEMENT (OR HAD AN OPPORTUNITY TO REVIEW THIS AGREEMENT), AND MAKE ANY DESIRED CHANGES OR RECOMMENDATIONS.
7. Miscellaneous. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and all prior understandings, agreements and/or promises, oral or in writing, by the parties hereto are cancelled and superseded by this Agreement. No variations,
modifications, supplements, waivers or changes herein or hereof shall be binding upon any party hereto unless set forth in a written document, duly executed by or on behalf of such party. Each party represents and warrants that no promises or inducements were made to get either party to enter into this Agreement. This Agreement be governed by and interpreted according to California law. Any dispute regarding this Agreement and subject matter hereof shall be filed in and decided upon by the courts of the State of California, the personal jurisdiction and venue of and to which all Parties agree and consent by entering into and signing this Agreement.