1. PARTIES AND DEFINITION OF “RELEASED PARTIES”

For purposes of this Agreement, “SWING” means the sports, recreation, entertainment, food and beverage, and event facility operated by D&T Murphy and Associates, Inc. d/b/a SWING.

The term “Released Parties” means, collectively: D&T Murphy and Associates, Inc.; D&T Murphy and Associates, Inc. d/b/a SWING; D&T Murphy and Associates, Inc. d/b/a Gold’s Gym; Gold’s Gym Middletown; and each of their respective and associated companies, affiliates, related entities, subsidiaries, parent companies, successors, assigns, owners, shareholders, members, officers, directors, managers, employees, coaches, trainers, instructors, agents, representatives, contractors, vendors, equipment manufacturers and suppliers, landlords, property owners, and insurers, to the fullest extent permitted by applicable law.

2. ACTIVITIES COVERED BY THIS AGREEMENT

This Agreement applies to my entry upon and use of the premises and my participation in any activity, program, event, service, reservation, or amenity offered at or in connection with SWING, whether supervised or unsupervised, including but not limited to:

Golf simulators and golf-related activities, sports simulators, gaming simulators, and games
Batting cages, pitching machines, baseball and softball activities
Pickleball
Cornhole and other recreational games
Turf activities and athletic activities
Sports training, fitness activities and group activities
Tournaments, leagues, competitions and special events
Birthday parties, corporate events, private events and group rentals
Food and beverage service
Bar and social activities
Spectating or accompanying another participant
Walking through, occupying, or otherwise using the facility, common areas, entrances, exits, hallways, restrooms, seating areas and surrounding premises
Any other activity, program, equipment, amenity or service offered at or through SWING

This Agreement applies whether I am participating, spectating, supervising a minor, attending an event, accompanying another person, or otherwise present on the premises.

3. ACKNOWLEDGMENT AND ASSUMPTION OF INHERENT RISKS

I understand and acknowledge that sports, recreation, fitness, entertainment and related activities involve inherent and other risks that cannot be completely eliminated regardless of the care, precautions, instruction or equipment used.

These risks include, without limitation:

slips, trips and falls
collisions with people, walls, barriers, nets, equipment or other objects
being struck by golf balls, baseballs, softballs, pickleballs, paddles, bats, clubs or other equipment or projectiles
equipment failure or malfunction
improper use of equipment
overexertion
muscle strains
sprains
fractures
cuts
bruises
head, neck or spinal injuries
eye injuries
cardiac events
illness
allergic reactions
food-related illness
actions or negligence of other participants or guests
other serious injuries, permanent disability, paralysis, property damage or death

I understand that other participants may act unpredictably and that balls, bats, clubs, paddles and other equipment may travel outside their intended area.

I understand that protective barriers, nets, screens, dividers and safety equipment may reduce risk but cannot eliminate all risk.

I KNOWINGLY AND VOLUNTARILY ACCEPT AND ASSUME ALL INHERENT AND REASONABLY FORESEEABLE RISKS ASSOCIATED WITH MY PARTICIPATION IN ACTIVITIES AND MY PRESENCE AT SWING, WHETHER KNOWN OR UNKNOWN, TO THE FULLEST EXTENT PERMITTED BY NEW YORK LAW.

I understand that participation is voluntary and that I may decline or discontinue participation at any time.

4. PARTICIPANT RESPONSIBILITY AND SAFETY RULES

I agree that I am responsible for my own conduct and safety. I agree to:

Follow all posted and communicated rules, warnings and instructions
Follow all instructions provided by SWING employees, coaches, instructors and representatives
Use equipment only for its intended purpose
Remain within designated activity areas
Keep a safe distance from participants who are swinging bats, golf clubs, paddles or other equipment
Never enter a batting cage, simulator bay, court or other active area unless it is safe and authorized to do so
Immediately stop using equipment that appears damaged or unsafe
Immediately report unsafe conditions, injuries or damaged equipment to SWING staff
Refrain from reckless, dangerous, abusive or disruptive behavior
Exercise reasonable judgment for my own safety and the safety of others

SWING may immediately suspend or terminate my participation or access for unsafe conduct or violation of facility rules.

5. HEALTH AND PHYSICAL CONDITION

I represent that I am physically and mentally capable of safely participating in the activities I choose to undertake.

I understand that SWING does not provide medical advice or medical supervision and that I am responsible for determining whether participation is appropriate for me.

If I have a medical condition, injury, physical limitation, pregnancy, or other circumstance that could affect my ability to participate safely, I understand that I should consult an appropriate healthcare professional before participating.

I agree that I will not participate while impaired by alcohol, drugs, medication, illness, fatigue or any other condition that makes participation unsafe.

6. RELEASE AND WAIVER OF CLAIMS

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, I, for myself and for my heirs, executors, administrators, personal representatives, successors and assigns, release and discharge the Released Parties from claims arising from the inherent risks of the activities, my voluntary participation, my misuse of equipment, my failure to follow rules or instructions, or the acts or omissions of other participants, guests or third parties.

Nothing in this Agreement is intended to release, waive, limit or disclaim liability to the extent such release, waiver, limitation or disclaimer is prohibited by New York law, including New York General Obligations Law § 5-326 or other applicable law.

This Agreement shall nevertheless be interpreted and enforced to the maximum extent permitted by law.

7. INDEMNIFICATION AND RESPONSIBILITY FOR MY CONDUCT

To the fullest extent permitted by law, I agree to indemnify, defend and hold harmless the Released Parties from claims, demands, liabilities, damages, judgments, costs and reasonable attorneys’ fees arising from:

My reckless, intentional or wrongful conduct
My violation of facility rules or safety instructions
My misuse or unauthorized use of equipment
Damage to property caused by me
Injury or damage I cause to another person
Any material breach of this Agreement by me

This indemnification provision shall be interpreted only to the extent permitted by applicable law and is not intended to require indemnification of a Released Party for liability that cannot lawfully be transferred to me.

8. DAMAGE TO PROPERTY AND EQUIPMENT

I accept financial responsibility for damage to SWING property or equipment caused by my intentional misconduct, reckless conduct, misuse of equipment, or violation of facility rules.

I authorize SWING, to the extent permitted by applicable law and the applicable payment authorization, to charge the payment method associated with my reservation for documented damage for which I am responsible.

9. ALCOHOL AND IMPAIRMENT

I understand that alcoholic beverages may be available at SWING. I agree that:

I will not participate in any activity if my ability to participate safely is impaired
I am personally responsible for determining whether I am capable of safely participating
I will comply with all laws and SWING policies concerning alcoholic beverages
I will not provide alcoholic beverages to anyone under the legal drinking age
SWING may refuse alcohol service or participation privileges whenever management determines that doing so is appropriate for safety or legal compliance

10. PERSONAL PROPERTY

I understand that I am responsible for my personal property. To the fullest extent permitted by law, SWING is not responsible for lost, stolen, misplaced or damaged personal property unless otherwise required by applicable law.

11. MINORS AND PARENT/GUARDIAN CONSENT

If I am signing this Agreement for a participant under the age of 18, I represent and warrant that:

I am the participant’s parent or legal guardian, or otherwise possess legal authority to execute this Agreement on the minor’s behalf
I consent to the minor’s participation
I have reviewed the risks associated with the activities
I agree to instruct the minor to comply with all SWING rules and safety requirements
I agree to the terms of this Agreement on my own behalf and, to the extent legally permissible, on behalf of the minor

I understand that the enforceability of releases or waivers executed on behalf of minors may be limited by applicable law. This provision is intended to operate to the maximum extent permitted by law and is not intended to waive any right that cannot legally be waived.

12. RESPONSIBILITY FOR GUESTS AND GROUP RESERVATIONS

If I make a reservation or purchase on behalf of other participants, I understand that my acceptance of this Agreement does not automatically constitute acceptance on behalf of another competent adult participant unless legally permitted.

I agree to inform all members of my party that participation is subject to SWING's safety rules and participant agreement requirements.

SWING may require each adult participant to separately accept this Agreement and may require a parent or legal guardian to accept this Agreement for each minor participant.

13. EMERGENCY MEDICAL ASSISTANCE

If I become injured or ill and am unable to provide instructions, I authorize SWING personnel to contact emergency medical services on my behalf.

I understand that SWING personnel are not obligated to provide medical treatment beyond their level of training.

I am responsible for medical, ambulance, hospital or other healthcare expenses incurred on my behalf, except to the extent otherwise required by law.

14. MEDIA RELEASE

Unless I notify SWING in writing that I do not consent, I grant SWING and its affiliated businesses permission to photograph, video or otherwise record me while I am participating in general facility activities or public events and to use such images or recordings for legitimate promotional, advertising, social media and marketing purposes without compensation.

This provision does not authorize the commercial use of my name or likeness in a manner prohibited by applicable law.

For organized photo/video shoots, testimonials or other uses in which an individual is a principal subject, SWING may request a separate media authorization.

15. RESERVATION CANCELLATION POLICY

Unless a different cancellation policy is expressly stated for a particular event, package, promotion or reservation:

Reservations canceled at least 24 hours before the scheduled start time are eligible for a refund or account credit in accordance with SWING's then-current reservation policy.
Reservations canceled less than 24 hours before the scheduled start time are non-refundable.
A reservation may be transferred to another eligible participant by notifying SWING before the scheduled activity, subject to SWING approval and completion of any required participant agreements.
Failure to attend a scheduled reservation without timely cancellation constitutes a no-show and forfeiture of fees paid.
Special events, tournaments, leagues, parties, group reservations and promotional purchases may be subject to separate cancellation terms disclosed at the time of purchase.

16. MEMBERSHIP CANCELLATION POLICY

Unless otherwise required by applicable law or expressly provided in the applicable membership agreement:

A minimum of 10 days' written notice before the next scheduled billing date is required to cancel a recurring membership.
Cancellation must be submitted through SWING's designated cancellation method, member portal, cancellation form, or other written method authorized by SWING.
Cancellation is not complete until received and processed in accordance with the applicable membership agreement.
Amounts already billed are non-refundable except as required by law or expressly provided in the applicable membership agreement.
No prorated refund or credit will be provided for unused membership time except where required by law.
If a separate membership agreement conflicts with this section, the terms of the applicable membership agreement shall control.

17. PROGRAM AND FACILITY CHANGES

SWING reserves the right, subject to applicable law, to modify operating hours, equipment availability, schedules, programs, instructors, courts, simulator bays, batting cages and other facility offerings.

SWING may temporarily close all or part of the facility when reasonably necessary for maintenance, repairs, emergencies, safety, weather, private events or circumstances outside its reasonable control.

Any refund or credit will be governed by the applicable reservation, membership or event agreement and applicable law.

18. GOVERNING LAW AND VENUE

This Agreement shall be governed by and construed under the laws of the State of New York, without regard to conflict-of-law principles.

Except for a dispute required to be resolved through arbitration under Section 19, any legal action concerning this Agreement shall, to the extent permitted by law, be brought in a court of competent jurisdiction located in Orange County, New York.

19. BINDING ARBITRATION AND CLASS-ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHT TO HAVE CERTAIN DISPUTES DECIDED BY A COURT OR JURY.

To the extent permitted by applicable law, any dispute, claim or controversy arising out of or relating to this Agreement, a reservation, transaction, membership, activity, or participation at SWING that cannot be resolved informally shall be resolved through individual binding arbitration administered by the American Arbitration Association (“AAA”) under the applicable AAA consumer arbitration rules.

The arbitration shall take place in Orange County, New York, unless applicable law or AAA rules require otherwise.

TO THE EXTENT PERMITTED BY LAW, I AND SWING AGREE THAT CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING.

Nothing in this section prevents either party from bringing an eligible matter in small claims court or seeking emergency or provisional relief from a court when permitted by applicable law.

If any portion of this arbitration provision is determined to be unenforceable, the remainder shall be enforced to the fullest extent permitted by law.

20. SEVERABILITY AND REFORMATION

If any provision of this Agreement is found invalid, illegal or unenforceable, that provision shall be severed or limited to the minimum extent necessary, and the remaining provisions shall remain in full force and effect to the fullest extent permitted by law.

The parties intend that this Agreement be interpreted and enforced as broadly as legally permissible rather than invalidated in its entirety because a particular provision cannot be enforced.

21. ELECTRONIC SIGNATURE AND ELECTRONIC RECORDS

I consent to the use of electronic records and electronic signatures in connection with this Agreement.

I understand and agree that clicking an “I Agree,” “Accept,” “Sign,” “Complete Reservation,” “Complete Purchase,” or substantially similar button, checking the required acceptance box, or providing an electronic signature constitutes my electronic signature and demonstrates my intent to be legally bound by this Agreement.

I agree that my electronic signature shall have the same force and effect as my handwritten signature to the extent provided by applicable law.

22. CONTINUING EFFECT

Unless SWING requires execution of an updated agreement, I agree that this Agreement applies to my present visit or transaction and, to the extent permitted by law, subsequent visits, reservations and participation at SWING.

If SWING materially modifies this Agreement, SWING may require me to review and accept the revised Agreement before making another reservation or participating in additional activities.

23. ENTIRE AGREEMENT

This Agreement constitutes the agreement concerning the subjects addressed herein, except for any separate membership agreement, event contract, reservation terms, privacy policy, payment authorization or other agreement that expressly applies to a particular transaction.

If there is a conflict, the more specific agreement shall govern the subject addressed by that agreement, subject in all cases to applicable law.

PARTICIPANT ACKNOWLEDGMENT

BY SIGNING OR ELECTRONICALLY ACCEPTING BELOW, I ACKNOWLEDGE THAT:

I HAVE READ THIS AGREEMENT CAREFULLY.
I UNDERSTAND THE NATURE OF THE ACTIVITIES AND THE RISKS INVOLVED.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT LEGAL RIGHTS.
I UNDERSTAND AND AGREE TO THE ASSUMPTION-OF-RISK, RELEASE, INDEMNIFICATION, DISPUTE-RESOLUTION AND OTHER PROVISIONS ABOVE TO THE FULLEST EXTENT PERMITTED BY LAW.
I HAVE HAD THE OPPORTUNITY TO ASK QUESTIONS BEFORE ACCEPTING THIS AGREEMENT.
I AM SIGNING/ACCEPTING THIS AGREEMENT VOLUNTARILY AND INTEND TO BE LEGALLY BOUND BY IT.

SWING PARTICIPANT AGREEMENT, ASSUMPTION OF RISK, WAIVER & RELEASE