Waiver of Liability & Hold Harmless Agreement
1. In consideration of me, or a minor under my responsibility and control (hereinafter called Minor
Participant), participating in Power Packed Swimming LLC’s program and use of the facilities and/or equipment
located at 5325 Cornish St., Houston, Texas 77007 and other valuable consideration, I hereby RELEASE, WAIVE,
DISCHARGE AND COVENANT NOT TO SUE EFL Properties, LLC and DIVETECH, Inc., their officers, directors, managers,
members, servants, agents, or employees (herein after referred to as RELEASEES) from any and all liability, claims,
demands, actions and causes of action whatsoever arising out of or related to any loss, damage, or injury, including
death, that may be sustained by me, or to any property belonging to me, WHETHER CAUSED BY THE NEGLIGENCE
OF THE RELEASEES, or otherwise, while participating in such activity, or while in, on or upon the premises where the
activity is being conducted or in transportation to and from said premises.
2. On my behalf, or on behalf of the Minor Participant, I acknowledge, represent, and warrant that I or the
Minor Participant can fully participate in this activity. I am fully aware of the risks and hazards connected with the
activity, including but not limited to the risks as noted herein, and I or the Minor Participant hereby elect to
voluntarily participate in said activity, and to enter the above-named premises and engage in such activity knowing
that the activity may be hazardous to me or the Minor Participant and my or the Minor Participant’s property. I,
individually or on behalf of the Minor Participant acknowledge, represent, and warrant that (a) neither I or the Minor
Participant have any physical limitations, conditions, or disabilities of any kind whatsoever that would inhibit me or
the Minor Participant from using the Facilities and Equipment; and (b) neither I or the Minor Participant are under
the influence of alcohol or any drugs. If I or the Minor Participant are taking prescribed medication, I or the Minor
Participant acknowledge, represent, and warrant that I or the Minor Participant have seen a physician and have that
physician’s approval to use the Facilities, Activities, Water Related Activities and Equipment while under the
influence of such medication.
3. I AND/OR THE MINOR PARTICIPANT VOLUNTARILY ASSUME FULL RESPONSIBILITY FOR ANY
RISKS OF LOSS, PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH, that may be sustained
by me and/or the Minor Participant, or any loss or damage to property owned by me and/or the Minor
Participant, as a result of being engaged in such activity, WHETHER CAUSED BY THE NEGLIGENCE OF
RELEASEES or otherwise.
4. I AND/OR THE MINOR PARTICIPANT further hereby AGREE TO INDEMNIFY AND HOLD
HARMLESS the RELEASEES from any loss, liability, damage or costs, including court costs and attorney's
fees, that may incur due to my and/or the minor participant’s participation in said activity, WHETHER
CAUSED BY NEGLIGENCE OF RELEASEES or otherwise.
5. It is my expressed intent and/or for the Minor Participant that this Release and Hold Harmless Agreement
shall bind the members of my family and spouse (if any), if I am alive, and my heirs, assigns and personal
representative, if I am not alive, and shall be deemed as a RELEASE, WAIVER, DISCHARGE AND COVENANT NOT TO
SUE the above RELEASEES. I and/or for the Minor Participant hereby further agree that this Waiver of Liability and
Hold Harmless Agreement shall be construed in accordance with the laws of the State of Texas.
6. I UNDERSTAND THAT EFL PROPERTIES, LLC AND DIVETECH, INC. WILL NOT BE RESPONSIBLE FOR ANY
MEDICAL COSTS ASSOCIATED WITH ANY INJURY OR ILLNESS I and/or the Minor Participant MAY SUSTAIN DURING
THIS ACTIVITY. I also understand that I am urged by EFL Properties, LLC and DIVETECH, Inc to obtain adequate health
and accident insurance to cover any personal injury to myself and/or for the Minor Participant which may be
sustained during the activity or the transportation to and from said activity.
7. I and/or the minor participant agree to follow all rules, procedures, and instructions discussed with or
provided to me by Power Packed Swimming, LLC, EFL Properties, LLC and DIVETECH, Inc., and/or its owners, employees, agents, and representatives, including all such rules, procedures, and instructions about my safety and
the safety of others.
The Participant, and the Minor Participant's parent(s) or legal guardian(s) if the Participant is a minor, hereby agrees
to submit any dispute, claim, or controversy, relating to and/or arising from (a) this Waiver of Liability and Hold
Harmless Agreement & Binding Arbitration Agreement, (b) Participant's participation in the Activities, and/or (3) any
other interaction between the Participant and the Host, including the determination of the scope or applicability of
this agreement to arbitrate, to binding arbitration. For such disputes, there shall be a three-member arbitration
panel, consisting of two party-appointed arbitrators (one arbitrator to be appointed by each party) and one
neutral arbitrator (collectively, the "Panel"), to be chosen by the party-appointed arbitrators. In the event that the
two party-appointed arbitrators are not able to agree on a third, neutral arbitrator, the neutral arbitrator shall be
appointed by the United States District Court, for the district in which the Activities occurred. Each party shall pay
its own costs, including the costs associated with the party-appointed arbitrators, and the partiesshallshare equally
the costs associated with the neutral arbitrator. The arbitration proceeding shall proceed in the State and County
where the Activities occurred and shall be governed by the Federal Rules of Evidence. The Panel shall establish a
reasonable and appropriate discovery schedule to expeditiously resolve this matter. As a threshold matter, the Panel
shall confirm whether the Waiver and Release contained in this Agreement are enforceable under applicable law.
Judgment on the Award may be entered in any court having jurisdiction over the parties and controversy. Participant
and the Host specifically intend this Binding Arbitration provision to survive in the event that any other portion of
this Agreement is held invalid. NOTICE TO PARTICIPANT: By signing this Agreement, you are giving up your right to
commence litigation against the Host in a court of law, and you are giving up your right to a trial by jury.
To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction,
the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in
IN SIGNING THIS RELEASE, I ACKNOWLEDGE AND REPRESENT THAT I have read the foregoing
Waiver of Liability and Hold Harmless Agreement, understand it and sign it voluntarily as my own free act
and deed; no oral representations, statements or inducements, apart from the foregoing written
agreement, have been made.
If under age of eighteen (18), a parent or guardian must sign indicating their assumption of legal and financial responsibility for Minor’s participation in this program; and I execute
this Release for full, adequate and complete consideration fully intending to be bound by same.