WAIVER, RELEASE, AND PARTICIPATION AGREEMENT

In consideration of the services and facilities offered by MIDWEST CLIMBING ACADEMY L.L.C. (“The A”), and as a condition to my participation or the participation of the minor child identified below in one or more activities offered by The A (the “Programs”), I agree to the terms and conditions contained in this Waiver, Release and Participation Agreement (the “Agreement”).

Legal Effect of this Agreement.  I understand that this Agreement is a legal document that impacts and/or alters my legal rights.  I agree that this Agreement applies to my participation all Programs, whether now or in the future, and that this Agreement will remain in effect indefinitely and end only upon a written termination by The A.

Assumption of Risk.  I understand that indoor and outdoor rock climbing,  rock climbing instruction, exercises related to rock climbing, use of The A’s facilities (the “Facilities”), and participation in the Programs (collectively the “Climbing Activities”) have inherent risks and dangers and may result in injury or death.  I acknowledge that injuries commonly result from Climbing Activities, including injuries from (i) falling off the climbing walls, (ii) skin contact with climbing surfaces or ropes, (iii) activities on or near the climbing areas, (iv) the acts or omissions of others, (v) failure or misuse of climbing equipment or the climbing surface, (vi) failure to follow instructions or to ask for information or assistance, and (vii) other circumstances, both foreseeable and unforeseeable.  I understand that this list of risks does not include all possible risks associated with Climbing Activities, and that no amount of care, instruction, or supervision can eliminate the risks associated with Climbing Activities. I further understand that climbing on artificial climbing walls is not the same as climbing on other surfaces, and that the instruction that I may receive in the Programs is not necessarily applicable to other climbing conditions. I also understand that the instruction that I receive in the Programs does not prepare me to climb without supervision, and that the holds used on artificial climbing surfaces are a convenience (not a safety feature) and that they can and do break.  I expressly assume all risks associated with my participation in the Climbing Activities, and I choose to participate in the Climbing Activities in spite of, and with full knowledge, understanding, and appreciation of all risks.

Physical and Mental Condition.  I am in proper physical and mental condition to participate in Climbing Activities.  If my condition changes after execution of this Agreement such that I am not capable of participating in Climbing Activities, I will immediately notify The A and cease participation in the Climbing Activities.

Agreement to Comply with Rules.  I will comply with all rules from time to time posted in the Facilities, on The A’s website, or otherwise made available to me, and with all instructions of The A’s instructors and staff.  

Waiver and Release of Claims.  On behalf of myself and my heirs, executors, administrators and assigns, I knowingly and intentionally (i) waive and release, indemnify and hold harmless The A, its landlord, and their respective governors, managers, owners, members, agents, and employees (each a “Released Party”) from and against all claims, demands, actions, causes of action, liabilities, suits, and expenses (including attorneys’ fees) which are related to, arise out of, or are in any way connected with my (or the minor’s) participation in Climbing Activities, including but not limited to all claims for property damage, personal injuries, or wrongful death (collectively “Claims”), and (ii) agree not to sue any Released Party for any Claims.  By signing this Agreement, I waive my right to bring an action in any forum against, or to recover compensation from, any Released Party for any Claims. I agree to pay all costs and expenses incurred by any Released Party (including attorneys’ fees) in connection with any Claims brought by me on my behalf. If I am signing this Agreement on behalf of a minor, I acknowledge and agree that (i) I am the minor’s parent or legal guardian, (ii) the minor’s participation in Climbing Activities is expressly conditioned on my execution of this Agreement, and (iii) this Agreement is binding upon the minor and the minor’s heirs, executors, administrators, and assigns. I certify that I have read this Agreement and have taken the opportunity to speak to representatives of The A, if desired, prior to executing this Agreement, and that no oral representations or inducements have been made to me that change any of the terms of this Agreement.  

Miscellaneous Terms.  If any part of this Agreement is held to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect.  This Agreement shall be governed and construed in accordance with Minnesota law. Any action or proceeding relating to this Agreement shall be venued in Hennepin County, Minnesota.  I voluntarily and intentionally waive the right to a trial by a jury in any action relating to this Agreement or against any Released Party. This Agreement is binding upon my heirs and executors.