COWABUNGA’S MANCHESTER, LLC & COWABUNGA’S ENTERTAINMENT, LLC MEMBERSHIP TERMS AND CONDITIONS, RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT

THIS IS A LEGALLY BINDING AGREEMENT. BY SIGNING THIS DOCUMENT, YOU ARE WAIVING CERTAIN RIGHTS, INCLUDING THE RIGHT TO BRING A LAWSUIT TO RECOVER DAMAGES IF YOU ARE INJURED WHILE PARTICIPATING IN ANY ACTIVITY AT COWABUNGA’S MANCHESTER, LLC & COWABUNGA’S ENTERTAINMENT, LLC. PLEASE READ CAREFULLY BEFORE SIGNING.

The COWABUNGA’S MANCHESTER, LLC & COWABUNGA’S ENTERTAINMENT, LLC MEMBERSHIP TERMS AND CONDITIONS, RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT (“Agreement”) govern the Cowabunga’s Manchester, LLC & Cowabunga’s Entertainment, LLC Membership Program. Purchase or use of the Cowabunga’s Membership (“Membership”) at any time subjects the purchaser and designated minor children (“you,” “your,” “yours,” “Member”) to the provisions of this Agreement, as amended from time to time.

DEFINITIONS

Cowabunga’s Manchester, LLC means Cowabunga’s Entertainment LLC, Cowabunga’s, its members, managers, officers, assigns, principals, any associated persons or companies, the physical premises of all business locations as well as all business and service operations performed on behalf of Cowabunga’s Manchester LLC or Cowabunga’s Entertainment LLC.

MEMBERSHIP TYPES

Cowabunga’s operates one level of family membership.

BENEFITS

The Cowabunga’s Membership Program entitles the Member up to two hours per day to the Cowabunga’s facilities, during any normal business open play hours as space allows. The facilities are located at 725 Huse Road, Manchester, NH & 265 Main Street in North Reading, MA.  Having a membership does not guarantee walk-in admission and will be based on availability during the timeslot you want.  Membership playtime should be reserved online and may be restricted if no available play slots are available.

Normal business open play hours are posted on cowabungas.com. The facility may sell out during certain play slots or be closed at any time and for any reason deemed necessary by Cowabunga’s, at its sole discretion.

Membership in the program does not guarantee that the facility will be open on every day of the month, or does not guarantee that during the times when it is open for open play there will be play slots available. However, if there is availability members do not need to pay an additional fee (beyond what has already been paid to become a Member), to gain admission to the facility strictly for open play.

Membership does NOT allow entry for any special events that require a ticket or entry for events that require an additional fee, unless a ticket is purchased or the entry fee is paid. Ticketed special events include, but are not limited to, Special Photo Events, Character Meet and Greets and/or Breakfasts, Holiday Events or designated events that have an additional ticket or fee for participation.

Membership period is a 30-day period. To remain active, Membership must be paid on or prior to the start of the subsequent 30-day period.

(1) For designated special events where tickets are being sold, Members may be granted a discount off the general admission ticketed price. Whether any discount is offered and the amount of the discount is at the sole discretion of Cowabunga’s.

(2) Weekly events that have an additional fee for participation may have a discounted price for Members listed when those events are for sale. Whether any discount is offered and the amount of the discount is at the sole discretion of Cowabunga’s.

(5) Members may be granted a 10% discount off of the base price of a Cowabunga’s birthday party package. A Member must have completed 2 full months of playground membership to receive this benefit. Whether any discount is offered and the amount of the discount is at the sole discretion of Cowabunga’s.

Cowabunga’s reserves the right to cancel any event, class, open play period or planned playground function, for any reason. Members are not entitled to any membership fee refund in the event of an event, class, open play period or planned playground function cancellation, except for a refund of a separately purchased ticket or tuition fee.

CONDITIONS

In order to exercise the rights of Membership, the Membership account must be paid, active and in good standing at the time of visit, event ticket purchase, or class enrollment. Memberships are for individual use only and are non-transferable.

Memberships are automatically set to auto-renew (Automatic Recurring Membership) upon enrollment.

Cowabunga’s is not responsible for any unauthorized use of a Membership. Cowabunga’s reserves the right to revoke and restrict Membership to any person for any reason, including, but not limited to, failure to follow the Playground Rules and Requirements, misconduct, misuse, or abuse of membership privileges.  No refunds will be issued.

Members agree to follow the Playground Rules and Requirements, as outlined in the RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT (“Waiver”). Members also agree to the terms of Cowabunga’s General Terms and Conditions and Privacy Policy, found at cowabungas.com. All Members must have a signed waiver on file to maintain membership in the program and to gain access to the facility.

Members agree to submit and maintain accurate and current user information in connection with their Membership. Such information includes name, address, email address, and telephone number. Members can change their account information by visiting the Cowabunga’s facility and speaking with an employee.

MEMBERSHIP FEE

The current monthly Membership Fee can be found at cowabungas.com/membership. Additional children enrolled under the same membership must be siblings.

The monthly Membership Fee does not include applicable taxes and is subject to taxation in accordance with applicable federal or state law.

We may change the Membership fee at any time, but the new Membership Fee will apply to newly enrolled Memberships. Existing members will maintain the Membership Fee they have at the time this membership agreement is executed, provided their account remains active and in good standing. Existing members that wish to receive any additional benefits granted by a newly updated Membership Terms and Conditions must accept and agree to any membership fee or program changes. Continued use of our program indicates acceptance of any changes. Any lapse in Membership and subsequent re-enrollment will be charged at the then-active Membership Fee rate.

Membership fees are not refundable once the Membership period has begun. Once billed, members are afforded use of the facility and program benefits for the 30-day period encompassing the renewal term.

TERM; AUTOMATIC RECURRING BILLING

The Membership term is one 30-day period, beginning on the date of purchase. A Renewal or Automatic Recurring Renewal within a current Membership term extends the existing expiration date of the Membership an additional 30-day period; such renewal term begins the day after the current term ends. When an expired Membership is renewed, the new Membership term is one 30-day period, beginning on the date of renewal.

Each Membership will automatically renew (“Automatic Recurring Membership”) each month for additional 30-day periods that commence on the day after the previous term ends unless, (i) you cancel your Membership, or (ii) we terminate your Membership.

By signing this agreement, Member acknowledges and agrees to participate in the Automatic Recurring Membership program. Automatic Recurring Membership fees will be billed monthly and automatically to the credit card you provide when you enroll in the Membership program or the form of payment we currently have on file for you, in the amount of the Membership fee, approximately one day prior to your Membership expiration date.

You may elect to discontinue Membership by contacting us in writing at info@cowabungas.com to cancel your membership. Member agrees to automatic payment processing via our credit card processor, which are used to process regular and automatic payments. Cowabunga’s does not store credit card information. All credit card transactions are processed by our credit card vendor. 

CANCELLATION AND TERMINATION

You have the right to cancel your Membership at any time. If you cancel your Membership, no prorated refunds will be given, and the Member will be entitled to utilize the facility for the remainder of the current term of the Membership.

You may cancel your Membership by contacting us via email at info@cowabungas.com with your cancellation request, in writing.

We may terminate your Membership, including any associated accounts, without notice, for any reason at our sole discretion. This includes, without limitation, our belief that continued use of such Membership would violate any provisions of this Agreement, applicable law, or otherwise be harmful to our interests. In the event of any such termination, you will not be entitled to a refund of your Membership Fee.

In the event of our termination of the Cowabunga’s Membership Program, at our election, we will either maintain your Membership benefits until the expiration of the Membership current term or refund each Member a pro rata portion of the Membership Fee for the remaining portion of the current Membership term.

PRIVACY POLICY

As a Member, the information we capture will be subject to the Cowabunga’s Privacy Policy as amended from time to time in accordance with its terms. You may view the current version of the Cowabunga’s Privacy Policy at any time online at cowabungas.com/

DISCLAIMERS; LIMITATION OF LIABILITY

USE OF THE COWABUNGA’S MEMBERSHIP PROGRAM AND ANY OF ITS ASSOCIATED BENEFITS IS AT YOUR SOLE RISK. THE MEMBERSHIP BENEFITS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

COWABUNGA’S MANCHESTER, LLC., COWABUNGA’S ENTERTAINMENT, LLC, AND ALL OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, MANAGERS, AND AGENTS (COLLECTIVELY “MEMBERSHIP PROVIDERS”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

MEMBERSHIP PROVIDERS MAKE NO WARRANTY THAT (i) THE COWABUNGA’S MEMBERSHIP PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THE COWABUNGA’S MEMBERSHIP PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU FROM YOUR USE OF THE COWABUNGA’S MEMBERSHIP PROGRAM WILL MEET YOUR EXPECTATIONS.

MEMBERSHIP PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MEMBERSHIP PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE COWABUNGA’S MEMBERSHIP PROGRAM OR ANY BENEFITS THEREOF; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED VIA THE USE THE COWABUNGA’S MEMBERSHIP PROGRAM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA OR ANY DATA RELATED TO THE COWABUNGA’S MEMBERSHIP PROGRAM; OR (iv) ANY OTHER MATTER RELATING TO THE COWABUNGA’S MEMBERSHIP PROGRAM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

FAILURE TO ENFORCE IS NOT A WAIVER

We may choose to delay or not enforce any term in this agreement (including fees) without losing our rights. Any failure or delay by us in enforcing strict performance of this agreement (including, but not limited to, accepting late or partial payments or payments marked “payment in full” or tendered with other conditions or limitations) shall not be considered a waiver of any of the terms of this agreement or any of our rights. Any waiver of rights by us must be in writing and signed by one of our authorized representatives.

BINDING ARBITRATION

Any controversy or claim arising out of or relating to this Agreement (including any breach thereof) or the Cowabunga’s Membership Program shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated with any claim or controversy of any other party. The foregoing shall not preclude Cowabunga’s LLC from seeking any injunctive relief in State or Federal courts for protection of their respective intellectual property rights (including such rights of their respective licensors).

ACKNOWLEDGMENT AND ASSUMPTION OF RISK

This Agreement, including all documents referenced herein, represents the entire understanding between us and any user of the Cowabunga’s Membership Program with respect to the Cowabunga’s Membership Program and supersedes any other agreements, statements or representations. Headings used in this Agreement are for reference only and shall not affect the meaning of any terms. Any user of any portion of the Cowabunga’s Membership Program is deemed to have accepted the terms and conditions of this Agreement.

In consideration of my admission and participation at any Cowabunga’s facility, I acknowledge and willingly agree that:

•  I, and any minor children I am the parent or guardian of, are entering the business or business facility voluntarily and of our own free will, 

•  I, and any minor children I am the parent or guardian of, acknowledge and fully understand that activities within the facility involves risk of injury, including serious and/or permanent physical injuries and death which might result not only from our own actions, inactions or negligence, but also the actions, inactions or negligence of others, including Cowabunga’s LLC, its members, managers, officers, assigns, principals, agents, employees and volunteers, (hereafter referred to as “Releasees”), the environmental conditions or the equipment used, 

• I, and any minor children I am the parent or guardian of, are physically able to participate in the activities we voluntarily choose to participate in at the facility and know of no disability or prior injury which would prevent our participation in the activity or potentially lead to our injury or the injury of another, 

• I, and any minor children I am the parent or guardian of, accept personal responsibility for the damages following such injury, permanent disability or death, including those resulting from the negligence of the Releasees. 

• I, and any minor children I am the parent or guardian of, knowingly and freely assume all risks, both known and unknown, even those arising from the negligent acts or omission of others and assume full responsibility for our own participation.

 ACKNOWLEDGMENT AND ASSUMPTION OF RISK RELATED TO CORONAVIRUS (COVID-19) AND COMMUNICABLE DISEASES

The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people. Other communicable diseases, such as common colds, seasonal flu, hand, foot and mouth disease, and many others, are also believed to spread from (1) proximity to, (2) person-to-person contact, and/or (3) contact with surfaces that have come into contact with an infected individual. Cowabunga’s has put in place preventative measures to reduce the spread of COVID-19 and other communicable diseases; however, Cowabunga’s cannot guarantee that you or your child(ren) will not become infected with COVID-19 or any other communicable disease or illness. Further, attendance at Cowabunga’s could increase your risk and your child(ren)’s risk of contracting COVID-19 or any other communicable disease or illness.

RELEASE AND WAIVER OF LIABILITY

By signing this agreement, I hereby release, waive, discharge and covenant not to sue Cowabunga’s, its members, managers, officers, servants, agents, employees and volunteers, from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating 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 any activity at Cowabunga’s. By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that my child(ren) and I may be exposed to or infected by COVID-19 or any other communicable disease or illness by attending Cowabunga’s and that such exposure or infection may result in personal injury, illness, permanent disability, and death. I understand that the risk of becoming exposed to or infected by COVID-19 or other communicable diseases or illnesses at Cowabunga’s may result from the actions, omissions, or negligence of myself and others, including, but not limited to, Cowabunga’s employees, volunteers, and other playground guests participants and their families.

INDEMNIFICATION AND HOLD HARMLESS AGREEMENT

I voluntarily agree to indemnify and save and hold harmless the Releasees, from any loss, liability, damage or costs they may incur due to my participation in any activity, whether caused by the negligence of any or all of the Releasees, or otherwise. It is my express intent that this agreement shall bind the members of my family and spouse, if I am alive, and my heirs, assigns and personal representative, if I am deceased, and shall be deemed as a Release, Waiver, Discharge and Covenant Not to Sue the above named Releasees. I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to my child(ren) or myself (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that I or my child(ren) may experience or incur in connection with my child(ren)’s attendance at Cowabunga’s or participation in any of the Releasees sponsored activity. On my behalf, and on behalf of my children, or the children I am guardian of, I hereby release, covenant not to sue, discharge, and hold harmless the Releasees, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. I understand and agree that this release includes any claims based on the actions, omissions, or negligence of the Releasees, whether a COVID-19 infection (or any other communicable disease or infection) occurs before, during, or after participation in any Cowabunga’s visit or program.

Changes to This Agreement

We may change the terms of this Agreement at any time without notice or liability by posting a revised Agreement on the Cowabunga’s website located at princessesandprinces.com. Any change shall take effect immediately unless otherwise provided. You may view the current version of this Agreement at any time online at princessesandprinces.com.

GOVERNING LAW

This COWABUNGA’S MEMBERSHIP TERMS AND CONDITIONS, RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT is governed by and shall be construed in accordance with the laws of the state in which the business resides. If any provision of this Agreement is deemed unlawful or unenforceable, such provision(s) shall be fully separable, and the remainder of this waiver shall be in full force and effect. In signing this Release, I acknowledge and represent that I have read the foregoing COWABUNGA’S MEMBERSHIP TERMS AND CONDITIONS, RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT, fully understand it, and sign it voluntarily as my own free act and deed; that no oral representation, statements or inducements, apart from the foregoing written agreement, have been made; that I am at least eighteen (18) years of age and fully competent; I voluntarily choose to allow myself and the below named minor child(ren) to participate in all activities, equipment, and games present at the facility; that I am the legal parent, guardian or adult caregiver authorized by the legal parent or guardian for the below named child(ren) and have the permission and authority to agree to the terms within; I have read the facility rules located outside of this Agreement (RULES, ACKNOWLEDGMENT, ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT), agree to abide by it and agree that the below named minor childr(ren) will abide by it; that I execute this Agreement for full, adequate and complete consideration fully intending to be bound by same; and that this Agreement is to be binding upon myself, my heirs, executors, administrators, and representatives in the event of my death or incapacity.