TRACY’S TRAVELING KAYAKS, LLC,
RELEASE OF LIABILITY, EXPRESS ASSUMPTION OF RISK, WAIVER OF CLAIMS AND LEGAL CAUSES OF ACTION & INDEMNITY AGREEMENTS
(APPLIES TO ALL KAYAKS including, but not limited to, guided tours, Bare kayak Rentals and or equipment provided of any kind)
I do understand and agree that by signing this document I am voluntarily giving up valuable legal rights that might otherwise be enforceable by myself and any minor participant in any court of law.
Release of Liability, Express Assumption of Risk, Waiver of Claims and Legal Causes of Action & Indemnity Agreements
PREAMBLE:
1 . Wherever used within the following provisions, the words “I,” “me,” “my,” “mine,” “myself,” “participant,” “the participant,” and “guest” include me, individually, and also my survivors, heirs, Personal Representatives, executors, trust(s), trust beneficiaries, curators of assets or estate, guardians, and assigns.
2. Wherever used within the following provisions, the terms, “Owner” or “Host” collectively refer to and include, TRACY’S TRAVELING KAYAKS, LLC, and all their respective owners, officers, directors, partners, affiliates, agents, employees and successors.
3. Wherever used within this document, the word “equipment” means the kayak furnished by the Host to the Participant, as well as all accessories or items of personal property furnished or made available by the Host to the Participant, whether provided free of charge and included within the basic rental or ticket price or furnished at an additional charge.
4. Wherever used within this document, the words “facility,” “facilities,” or “premises” shall mean the Host’s business premises, including but not limited to their adjacent areas, assembly and instruction areas, docks, boarding and disembarkation equipment and areas, the Host’s other properties or places furnished or provided by the Host for the Participant’s occupation, access, or use.
5. Wherever used within this document, the words “activity,” “activities,” “the activities,” “pursuit” and “the pursuits” refer to and include boarding and leaving kayaks and maintenance of kayaks, including participation in guided tours or other activities conducted or made available by the Host (including all instruction or training provided by the Host).
6. In executing this Release of Liability, Express Assumption of Risk, Waiver of Claims and Legal Causes of Action & Indemnity Agreements, I do fully understand that there are foreseen and unforeseen risks inherent in (1) my boarding and leaving the Host’s kayaks and equipment and my occupation of, kayaking, and being aboard the Host’s kayaks and equipment, and (2) my participation in the activities conducted or made available to me by the Host, including all my usage of the Host’s accessories, items, and equipment. These risks arise from the nature of the activities participated in (to include boarding, being aboard, and leaving the Host’s kayaks and equipment), from the ever changing environmental, weather, wind and sea conditions, harm caused by marine wildlife (including physical exposure to marine organisms, stings and bites), acts, errors or omissions of the Host, employees, and from other causes (herein too numerous and variable to list) and these risks include, but they are not limited to, loss or damage to property, bodily injury, severe bodily injury, drowning, near drowning, death, including all consequential damages and special damages.
In consideration of me being allowed (1) to use the Host’s facilities and equipment, and (2) to be allowed to be aboard the kayak, I (the Participant) hereby agree, TO THE FULLEST EXTENT ALLOWED BY LAW, as follows:
1. I HEREBY WAIVE ALL CLAIMS AND LEGAL CAUSES OF ACTION IN CONTRACT AND IN TORT (INCLUDING PRODUCT LIABILITY) for property damage, bodily injury, and death (WHETHER CAUSED WHOLLY OR IN PART BY THE HOST’S NEGLIGENCE OR GROSS NEGLIGENCE) that I have or may have, now or in the future, against the Host arising either from my (the Participant’s) occupation or use of the Owner’s facilities, vessels, or premises and my use of any accessories, items and equipment provided by the Host, from my participation in any activities conducted or made available by the Host, and from any and all circumstances, actions or conduct that is characteristic of, intrinsic to or an integral part of participating in the activity. This specifically includes, but is not limited to, claims that may arise from or during any instruction or training furnished or conducted by the Host.
2. I EXPRESSLY ASSUME ALL RISKS of loss or damage to property, bodily injury, severe bodily injury, drowning, near drowning and death arising from my occupation or use of the Host’s facilities, kayaks or premises; or from my participation in the activities furnished or made available by the Host; or in my using the equipment provided by the Host; or from my participation in any training or instruction provided by the Host. This Assumption of Risk specifically includes all my loss, damage to property, bodily injury, or death caused wholly or in part by the Host’s own negligent acts or omissions. I consent to this express assumption of risk both knowingly and voluntarily.
3. I FOREVER RELEASE the Host, and its respective owners, officers, directors, partners, affiliates, agents, operators, captains, crewmembers, employees, successors and assigns, and all of their respective vessels, IN REM from all legal liability, in contract and in tort, for any and all loss, injury, damage, death, consequential damages or special damages suffered by me (Participant) and arising from my occupation or use of the Host’s facilities, vessels, or premises; or my use of the Host’s equipment; or my participation in the instruction or training of, and activities conducted or made available to me by the Host. This Release specifically includes but is not limited to loss or damage to property, bodily injury, severe bodily injury, drowning, near drowning, death, consequential damages and special damages that I may suffer while receiving instruction and training from the Host. I (the Participant) fully understand that by executing this Release, I am forfeiting my legal right to recover monetary damages from the Host (in contract and in tort) even if my bodily injury, severe bodily injury, loss or damage to property, drowning, near drowning or death is caused wholly or in part by the Host’s negligence, gross negligence, breach of warranty or breach of contract.
4. I SHALL INDEMNIFY AND HOLD THE HOST HARMLESS for all losses or claims against the Host and arising from any property loss or damage, bodily injury or death (including special and consequential damages) that I (the Participant) may suffer, arising out of my use of the Host’s facilities, vessels or premises, and equipment provided to me by the Host or through my participation in the activities conducted or made available to me by the Host, including property loss or damage, bodily injury, or death including consequential and special damages). I understand and agree that this promise to indemnify the Host is valid and enforceable even if my property loss or damage, bodily injury, or death is caused wholly or in part by the negligence, gross negligence, breach of warranty or breach of contract by the Host, including its owners, officers, directors, partners, affiliates, agents, employees and successors.
5 . I SHALL INDEMNIFY AND HOLD THE HOST HARMLESS for and against any and all claims or lawsuits (whether based in contract or in tort) for property loss or damage, bodily injury or death (including consequential and special damages) caused to or suffered by other third party persons or entities which arise directly or indirectly from my use of the Host’s facilities, vessels or premises, and equipment provided or rented to me by the Host or my participation in the activities conducted or made available to me by the Host. This specifically includes, but is not limited to claims, losses, causes of action, lawsuits and liability of every conceivable kind arising from or related to environmental damage. I understand and agree that this agreement to indemnify and hold the Host harmless is valid and enforceable even if the loss, injury, damage or death is caused wholly or in part by the negligence, gross negligence, breach of warranty or breach of contract by the Host, including its owners, officers, directors, partners, affiliates, agents, employees and successors.
6. I FURTHER INTEND THE FOREGOING WAIVER OF ALL CLAIMS (Paragraph 1); ASSUMPTION OF RISK (Paragraph 2); RELEASE (Paragraph 3); and INDEMNITY AND HOLD HARMLESS (Paragraphs 4 & 5) shall apply to and be equally enforceable against me in all claims or causes of action which may arise from the Host’s alleged negligent or grossly negligent hiring or retention of personnel, or selection of subcontractors, including all operators, agents, captains, crewmembers, employees, and all claims or causes of action that I may hereinafter allege against the Host for supervision of my conduct or the conduct of others, whether arising within or outside the scope of the above described “activities.”
Personal Responsibility
The Undersigned Participant(s) certify that he/she has no physical or mental condition that precludes him/her from participating in the activities and that he/she is not participating against medical advice.
The Undersigned Participant(s) understand that his/her participation in the activities is voluntary and further understands that he/she has the opportunity to inspect the Host’s equipment, facilities, and kayaks before any participation.
The Undersigned Participant(s) understand that he/she is obligated to follow the rules of the activities and that he/she can minimize his/her risk of injury by doing so and through the exercise of COMMON SENSE and by being aware of his/her surroundings.
If, while participating in the activities, the Undersigned Participant(s) observe any unusual hazard or condition, which he/she believes jeopardizes his/her personal safety or that of others, he/she will remove himself/herself from participation in the activities and immediately bring said hazard or condition to the Host’s attention.
To the extent any portion of this Release of Liability, Express Assumption of Risk, Waiver of Claims and Legal Causes of Action & Indemnity Agreements is deemed to be invalid under the law of the applicable jurisdiction, all of the remaining portions of this Agreement shall remain legally binding and available for use by the Host and its legal counsel to the fullest extent allowed by law in any legal proceeding.
