PLEASE READ CAREFULLY BEFORE SIGNING. THIS ARBITRATION AND RELEASE AND WAIVER OF LIABILITY AGREEMENT (THIS “AGREEMENT”) HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND ABILITY TO BRING FUTURE LEGAL ACTIONS. THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION AND A WAIVER OF YOUR RIGHT TO BRING A CLASS ACTION.
IN CONSIDERATION of the right of the individuals whose names are printed below (including my child or ward, if applicable) (the “Participant”) to participate in the basketball clinics, training session(s), game(s), contest(s) and any other activities that will take place as part of the Gary Payton’s Block Party Event that will be made available to Participant (collectively, the “Program”) and to enter and remain at any site(s) in which the Program occurs (including all surrounding parking areas, pedestrian plazas and entryways, the “Program Site(s)”), I hereby, (a) agree on behalf of myself, or for my child or ward, to participate in the Program and (b) on behalf of myself, my participant child or ward (if applicable), and Participant’s personal representatives, heirs, assigns, executors, administrators, next of kin, and other persons acting or purporting to act on my or their behalf (collectively, “Related Persons”), hereby acknowledge and agree as follows:
1. Acknowledgments of COVID-19 and Other Risks. I fully understand that (a) the novel coronavirus SARS-CoV-2 and any resulting disease (together with any mutation, adaptation or variation thereof, “COVID-19”) is extremely contagious and there is an inherent risk of exposure to COVID-19 in any place where people are present; (b) no precautions, including the protocols that may be implemented from time to time by NBA Properties, Inc. (“NBAP”), the National Basketball Association (the “NBA”), and/or third parties (including, but not limited to, governmental agencies and NBAP’s designees) (collectively, the “Program Site Protocols”), can eliminate the risk of exposure to COVID-19; (c) while people of all ages and health conditions have been adversely affected by COVID-19, certain people have been identified by public health authorities as having greater risk based on age and underlying medical conditions; and (d) exposure to COVID-19 can result in being subject to quarantine requirements, illness, disability, other short-term and long-term health effects, and/or death, regardless of age or health condition. I fully understand and knowingly and voluntarily assume all risks related to Participant’s participation in the Program and traveling to, entrance to, and presence at any Program Site(s), which may include an increased risk of exposure to illness (including, without limitation, COVID-19), personal injury, disability, other short-term or long-term health effects and/or death, which might result not only from my own actions, inactions or negligence, but from the actions, inactions or negligence of any of the Released Parties (as defined below). I accept personal responsibility for any and all damages, liability, and other losses that I, Participant or any of the Related Persons may incur in connection with the foregoing risks.
2. Release, Waiver of Liability, Covenant Not to Sue, and Indemnity. (A) I, ON BEHALF OF MYSELF, PARTICIPANT, AND EACH OF THE RELATED PERSONS, HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY AND FOREVER RELEASE, WAIVE AND DISCHARGE (AND COVENANT NOT TO SUE), EACH AND ALL OF THE RELEASED PARTIES FROM (OR WITH RESPECT TO) ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION AND CLAIMS FOR DAMAGES, WHETHER PAST, PRESENT OR FUTURE, AND WHETHER KNOWN OR UNKNOWN, INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF OR IN CONNECTION WITH PARTICIPANT’S DEATH, PERSONAL INJURY, ILLNESS, DISABILITY, SUFFERING OF SHORT-TERM OR LONG-TERM HEALTH EFFECTS, OR LOSS OF OR DAMAGE TO PROPERTY, WHICH I, PARTICIPANT OR ANY OF THE RELATED PERSONS MAY HAVE OR HEREAFTER ACCRUE AGAINST ANY OF THE RELEASED PARTIES AS A RESULT OF OR THAT RELATE IN ANY WAY TO (I) PARTICIPANT’S EXPOSURE TO COVID-19; (II) PARTICIPANT’S PARTICIPATION IN THE PROGRAM; (III) PARTICIPANT’S TRAVEL TO OR PRESENCE WITHIN THE PROGRAM SITE(S) OR COMPLIANCE WITH ANY PROGRAM SITE PROTOCOLS; OR (IV) ANY OF THE RISKS IDENTIFIED ABOVE IN SECTION 1, IN EACH CASE WHETHER CAUSED BY ANY ACTION, INACTION OR NEGLIGENCE OF ANY RELEASED PARTY OR OTHERWISE.
(B) FOR THE PURPOSES HEREOF, THE “RELEASED PARTIES” ARE: (I) NBAP, THE NBA AND ITS MEMBER TEAMS, AND EACH OF THEIR RESPECTIVE AFFILIATES, ADMINISTRATORS, DESIGNEES, LICENSEES, AGENTS, PLAYERS, COACHES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND OTHER PERSONNEL (COLLECTIVELY, INCLUDING NBAP AND THE NBA, THE “NBA PARTIES”); (II) THE OWNERS, LESSEES AND SUBLESSEES OF ANY PROGRAM SITES; (III) ANY THIRD PARTIES PRESENT AT OR FROM TIME TO TIME BROUGHT TO ANY PROGRAM SITE(S) (INCLUDING, WITHOUT LIMITATION, NBAP’S BUSINESS PARTNERS AND MEDICAL PERSONNEL OR VENDORS OR OTHER PERSONNEL PERFORMING SERVICES AT ANY PROGRAM SITE); AND (IV) ANY PARENTS, SUBSIDIARIES, AFFILIATED AND RELATED COMPANIES AND OFFICERS, DIRECTORS, OWNERS, MEMBERS, MANAGERS, PARTNERS, EMPLOYERS, EMPLOYEES, AGENTS, CONTRACTORS, SUB-CONTRACTORS, INSURERS, REPRESENTATIVES, SUCCESSORS AND/OR ASSIGNS OF EACH OF THE FOREGOING ENTITIES AND PERSONS, WHETHER PAST, PRESENT OR FUTURE AND WHETHER IN THEIR INSTITUTIONAL OR PERSONAL CAPACITIES.
(C) I, ON BEHALF OF MYSELF, PARTICIPANT, AND EACH OF THE RELATED PERSONS AGREE TO HOLD HARMLESS, DEFEND, AND INDEMNIFY EACH OF THE RELEASED PARTIES FROM ANY LOSS, LIABILITY, CLAIM, DAMAGE, JUDGMENT, LEGAL FEES,OR COSTS ARISING FROM OR INCURRED DUE TO PARTICIPANT’S PARTICIPATION IN OR OTHERWISE IN CONNECTION WITH THE PROGRAM, WHETHER CAUSED BY NEGLIGENCE OF ANY RELEASED PARTIES OR OTHERWISE.
3. Program Terms & Conditions. (A) I, on behalf of myself, Participant, and each of the Related Persons, hereby agree that: (i) the selection process to pick Program prize winners (if any) will be conducted by NBAP staff at their sole discretion; (ii) participation in the Program (including in any Program contests) may be terminated, without prior notice, at any time and for any reason by NBAP in its sole discretion and NBAP’s decision shall be final and no correspondence will be entertained; and (iii) in the event of a dispute, Participant’s entitlement to participate in the Program and/or receive any prize is subject to the sole discretion and final determination of NBAP.
(B) I, on behalf of myself and Participant, and each of the Related Persons, hereby represent and warrant that: (i) Participant shall abide by all rules, procedures and conditions for participation in the Program, which shall be determined by NBAP in its sole discretion; (ii) the information I have provided in this Agreement for registration (and any other information I am required to provide in connection with the Program) is accurate and valid; (iii) if requested by NBAP, I shall present government-issued identification to prove that Participant’s age and identity is as represented before Participant is allowed to participate in the Program and that failure to provide such information, if requested, shall be grounds to disqualify the Participant; (iv) Participant is in good physical condition and able to participate in the Program; and (iv) Participant does not violate any laws or regulations or the rights of any third party by participating in the Program.
(C) I, on behalf of myself, Participant, and each of the Related Persons hereby acknowledge and agree that: (i) except as may be required under applicable law, the Released Parties make no warranties as to the quality, merchantability or fitness of any prizes awarded in connection with the Program; (ii) unless otherwise specified, Participant shall be responsible for any travel expenses incurred including but not limited to meals, drinks, transfers, laundry charges, activities, incidentals, taxes (including airport taxes, departure taxes), energy surcharges, gratuities, services charges, travel insurance and all other ancillary costs; (iii) to the extent a prize includes travel, Participant shall ensure that he/she has valid documentation (including but not limited to valid passports and visas), which meet the requirement of immigration and other government authorities at every destination, and he/she shall be liable for any and all fines, penalties, payments or expenditures incurred as a result of such documents not meeting the requirements of those authorities and in the event Participant is refused entry to any destination he/she shall forfeit the prize and/or participation in its entirety and no compensation or substitute shall be offered; (iv) prizes may be subject to change (whether due to unavailability or otherwise) and cannot be transferred, assigned, redeemed for cash, substituted, or altered, except by NBAP at its sole discretion, and such prize may then be substituted for one of comparable or similar value; (v) I or Participant, as the case may be, shall be solely responsible for all applicable taxes and all other expenses not specified herein; (vi) in connection with any information, personal or otherwise, provided by myself or Participant to NBAP, I hereby consent to the NBA Parties collecting, analyzing, using, sharing and disclosing such information to third parties and partners for the purposes of marketing, planning, promotions, research, events and/or any other purposes and programs henceforth; (vii) any social media posts made by myself or Participant, as the case may be, in connection with the Program shall not contain nudity, profanity, racism or violence in any form; (vii) as a condition of accepting any prize, Participant shall comply with all the conditions of use of the prize imposed by NBAP or any third party or prize supplier; (viii) NBAP reserves the right in its sole discretion to disqualify or retract any prize from any Participant who NBAP has reason to believe has breached any of these conditions, or engaged in any unlawful or other improper misconduct calculated to jeopardize the fair and proper conduct of the Program and the NBA Parties’ legal rights to recover damages or other compensation from such offending Participants and/or their Guardians (as defined below), as applicable, are reserved; (ix) in the case of the intervention of any outside act, agent or event which prevents or significantly hinders NBAP’s ability to proceed with the contest on the dates and in the manner described in these terms and conditions, including but not limited to vandalism, power failures, tempests, natural disasters, pandemics, acts of God, civil unrest, strike, war, act of terrorism, NBAP may in its absolute discretion cancel the Program and related activities or competitions and recommence it from the start on the same conditions, subject to any requirements of applicable law; and (q) NBAP reserves the right to revise these Program terms and conditions, and any aspect of the Program (including but not limited to its structure, scope, content, rules and prizes) at any time and without notice. FURTHERMORE, PARTICIPANT FULLY ACKNOWLEDGES, APPRECIATES AND UNDERSTANDS THE RISK THAT PARTICIPANT’S PARTICIPATION IN ANY CONTEST, ACCEPTANCE OF ANY PRIZES AND/OR NBAP’S USE OF THE MATERIALS COULD AFFECT ANY HIGH SCHOOL OR INTERCOLLEGIATE ATHLETIC ELIGIBILITY THAT PARTICIPANT MAY HAVE, AND PARTICIPANT FULLY ASSUMES SUCH RISK AND RELEASES THE RELEASED PARTIES FROM ANY LIABILITY IN CONNECTION WITH ANY SUCH FAILURE TO BE ELIGIBLE FOR HIGH SCHOOL OR INTERCOLLEGIATE ATHLETIC COMPETITION.
4. Grant of License. I hereby acknowledge and agree that Participant’s acts, poses, words and performances during the Program (including, without limitation, any material posted on any social media network) will be in good taste and will not reflect negatively on the image, reputation or business of the Released Parties, and grant full permission to each of the Released Parties (and each of their designees, agents and licensees), with no obligation to compensate me, Participant or any Related Person, to utilize Participant’s name, voice, statements, image, likeness, biographical data and/or actions in any live or recorded audio, video, film, or photographic display or other transmission, exhibition, publication or reproduction made of, or in connection with, the Program in any medium, whether now known or hereafter created, or context, without further authorization or compensation, and represent that the undersigned has the right to grant such permission on behalf of Participant.
5. Governing Law. I agree that this Agreement shall be governed by the laws of the State of Florida, without regard to choice of law principles.
6. Arbitration Agreement. I agree that (a) any current or future claim, action or proceeding between me and/or Participant, on the one hand, and any of the Released Parties, on the other hand, arising out of or relating to this Agreement, or my presence at any Program Site(s) or participation in the Program (collectively, the “Claims”), must be submitted for confidential, final and binding arbitration to Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to the Federal Arbitration Act (“FAA”), (b) the FAA is applicable because the NBA Parties are engaged in transactions involving interstate commerce with respect to the Program, (c) the arbitration shall proceed before a single arbitrator, (d) (i) if Participant participates in the Program in the United States, the arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures and (ii) if Participant participates in the Program in a location outside of the United States, the arbitration shall be conducted in accordance with the JAMS International Arbitration Rules and Procedures, (e) any and all issues relating or pertaining to arbitration or this arbitration clause, including but not limited to the threshold question of arbitrability or the enforceability or validity of this arbitration clause shall be delegated to the arbitrator selected pursuant to this provision, (f) the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law; (g) judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction; (h) the award may be vacated or modified only on the grounds specified in the FAA or other applicable law; and (i) any arbitration conducted pursuant to this Agreement shall take place in City of Miami, State of Florida, U.S.A.
7. Class Action Waiver. I agree that all claims described in Section 6 must be pursued on an individual basis only. By signing this Agreement, I hereby waive my and Participant’s right to commence, or be a party to, any class or collective claims against the Released Parties.
8. Severability. I agree that if any provision or part thereof contained in this Agreement is declared illegal, unenforceable or ineffective, such provision or part thereof shall be modified, if possible, in order to achieve the intentions of the parties, and, if necessary, such provision or part thereof shall be deemed severable, such that all other provisions contained in this Agreement shall remain valid and binding
I HAVE CAREFULLY READ AND VOLUNTARILY SIGN THIS AGREEMENT; understand its terms, including that I and the Participant are hereby giving up substantial legal rights; understand that it is a material inducement for Participant’s being permitted to participate in the Program and to enter and be present at any Program Site(s) and that the NBA Parties and the other Released Parties are relying upon it; and further agree that no oral representations, statements or inducement contrary to anything contained herein have been made by NBAP or any of its employees or agents or any of the other Released Parties. If not signed by my parent or legal guardian (“Guardian”) below, I represent that I am eighteen (18) years of age or older, I acknowledge that NBAP and each of the Released Parties is relying on the grant of rights contained herein. If signed by a Guardian, the Guardian has explained the risk of participating in the Program, entering and being present in any Program Site(s) and safety rules (including any Program Site Protocols) to Participant and Participant understands the inherent risks and agrees to follow all rules of participating.
