YOU MUST BE 18 YEARS OF AGE TO SIGN THIS AGREEMENT FOR YOURSELF OR ON A MINOR'S BEHALF. THIS AGREEMENT MUST BE SIGNED BY OR ON BEHALF OF ALL PARTICIPANTS IN THE RENTAL ACTIVITIES --INCLUDING MINORS.
This Waiver and Release of All Claims ("Agreement") is applicable to all renters, paddlers, operators, passengers, participants, and users of equipment provided by What's Up Watersports, Inc. *(For purposes of this Agreement, the terms "What's Up Watersports" and "WUW" include all officers, officials, agents and or employees, other participants, sponsors, advertisers, and, if applicable, owners and lessors of the premises used to participate in any Rental Activity or event of What's Up Watersports, Inc.).
For purposes of this Agreement, the term "Rental Activity" and "Rental Activities" include paddle boarding, kayaking, jet skiing, boating, or any associated activity.
For purposes of this Agreement, the term "Rental Equipment" includes paddleboards, kayaks, paddles, life jackets, jet skis, boats, or any other associated rental equipment provided by WUW to the Participant.
If Participant allows any other operator, paddler, passenger, or user who has not signed this Agreement (or in the case of a minor, has not had the Agreement signed on his/her behalf) to use the Rental Equipment, he/she will be personally liable for any damages to the undisclosed individuals, even if such damages arise out of the negligence or fault of WUW.
II. EXPRESS ASSUMPTION OF RISK
I ACKNOWLEDGE THAT THE OPERATION OR USE OF THE RENTAL EQUIPMENT AND THE RENTAL ACTIVITY HAVE INHERENT RISKS THAT MAY LEAD TO BODILY INJURY OR DEATH. I FURTHER UNDERSTAND THAT I AM NOT BOUND OR REQUIRED TO PARTICIPATE IN ANY OF THE RENTAL ACTIVITIES PRESENTED TO ME, BUT HAVE WILLINGLY AND VOLUNTARILY DECIDED TO PARTICIPATE. I REALIZE THAT I AM FREE TO REFUSE TO PARTICIPATE IN ANY OR ALL RENTAL ACTIVITIES INCLUDING THOSE I FEEL UNCOMFORTABLE WITH OR WHICH I FEEL CANNOT BE COMPLETED SAFELY BY ME. I KNOWINGLY AND VOLUNTARILY ASSUME ALL RISK OF INJURY, ILLNESS, DAMAGE OR LOSS, BOTH KNOWN AND UNKNOWN, ASSOCIATED WITH THE RENTAL, OPERATION, OR USE OF THE RENTAL EQUIPMENT, EVEN IF ARISING FROM THE NEGLIGENCE, ACT OR OMISSION OF WUW, AND ASSUME FULL RESPONSIBILITY FOR MY PARTICIPATION.
III. RELEASE OF LIABILITY
I HEREBY RELEASE AND HOLD HARMLESS WUW FROM ALL LIABILITY, CLAIMS, DEMANDS OR CAUSES OF ACTION FOR ANY INJURY, DISABILITY, DEATH, OR LOSS OR DAMAGE TO PERSON OR PROPERTY INCURRED BY ME AND/OR ANY MINOR CHILDREN FOR WHOM I AM A PARENT, LEGAL GUARDIAN, OR OTHERWISE RESPONSIBLE, WHETHER CAUSED BY THE NEGLIGENCE OF WUW OR OTHERWISE. THIS INCLUDES ANY INJURY, DISABILITY, DEATH, OR LOSS OR DAMAGE TO PERSON OR PROPERTY INCURRED AS A RESULT OF A HIDDEN, LATENT OR OBVIOUS DEFECT ON THE RENTAL EQUIPMENT OR ANY OF THE RENTAL EQUIPMENT USED, OR ANY FAILURE TO PROPERLY INSTRUCT, SUPERVISE OR TRAIN.
IV. COVENANT NOT TO SUE
AS PART OF THE CONSIDERATION FOR USING THE RENTAL EQUIPMENT, I PROMISE NOT TO SUE OR MAKE A CLAIM AGAINST WUW FOR ANY DAMAGE OR LOSS SUFFERED AS A RESULT OF MY PARTICIPATION IN THE RENTAL ACTIVITIES.
VI. LIABILITY TO THIRD PARTIES
I AGREE THAT I WILL INDEMNIFY AND HOLD HARMLESS WUW FOR ALL PERSONAL INJURIES, PROPERTY DAMAGES, OR ANY OTHER DAMAGES TO ANY AND ALL THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, OPERATORS AND PASSENGERS OF OTHER WATERCRAFT AND MINOR CHILDREN UNDER THE UNDERSIGNED'S CUSTODY, CARE, AND CONTROL, AS A RESULT OF ANY AND ALL ACTIVITIES RELATED TO THE RENTAL, OPERATION, OR USE OF EQUIPMENT PROVIDED BY WUW, EVEN IF SUCH DAMAGES ARISE OUT OF THE NEGLIGENCE OR FAULT OF WUW.
VII. PHOTO/VIDEO WAIVER
WUW may take and use photographs, video, film, and other images of the Participant participating in or observing the Rental Activities. Participant waives his/her right of privacy, publicity, compensation, copyright, or other rights to those images and consents to WUW using those images for any purpose.
VIII. SMS/MMS TEXT MESSAGING
Participant agrees to receive SMS/MMS text messages from WUW or others acting on WUW's behalf. The contents of these messages may include but are not limited to text messages about your reservation or experience with WUW, advertising/promotional text messages, or text messagages that are responses to text messages sent by the Participant. Participant may opt out of receiving text messages from WUW at any time by responding with STOP.
IX. GENERAL TERMS AND CONDITIONS
I certify that I have received adequate and proper safety and operational instruction for the Rental Equipment rented from WUW and am capable in all aspects of the handling and operation of such equipment and watercraft and following all safety instructions. I agree not to use, nor permit the use of the equipment for (a) any unlawful purpose; (b) in a careless, reckless, or negligent manner; (c) while under the influence of alcohol and/or drugs (non-drivers on boats only may consume beer and wine in moderation); (d) during inclement weather (thunder, lightning, high winds (if inclement weather starts, you must return to the launch area or seek nearby safety immediately); or (e) allow anyone under a reasonable age to use or ride on the Rental Equipment (e) in violation of the safety instructions I received from WUW.
If the Participant or Rental Equipment should become involved in an accident, Participant or Participant's Parent/Guardian shall immediately report the accident to the police (or other appropriate law enforcement agency) and to WUW, promptly provide an accident report to WUW, and cooperate fully with the investigation of the accident.
Participant and no one else shall alter or attempt to repair the Rental Equipment.
Participant agrees to be responsible for the safe operation of the Rental Equipment and to abide by and follow any and all postings, rules, regulations and laws of the United States Coast Guard, North Carolina Wildlife Commission, WUW and any other regulatory agencies with respect to boating safety and operation, whether stated herein or not.
If paddle boarding, kayaking, jet skiing, or participating in a watersport behind a boat, Participant must be able to swim and must wear a life jacket at all times. If Participant enters the water for any reason, Participant must be wearing a life jacket while in the water. If Participant is under 13 years-old and on a boat, Participant must wear a life jacket at all times.
During any timeframe specified in any COVID-19-related orders for the State of North Carolina or for Catawba County, North Carolina - Participant agrees to follow all required Social Distancing Guidelines between and among all WUW Customers (including those within your own party) and WUW Employees.
I understand that I must be physically present at the beginning of the rental and show a valid ID to prove I am the signer of this document. I understand that my picture may be taken to prove my identity.
I understand that my entire Rental Party and I must abide by the What's Up Watersports Customer/Guest Code of Conduct Policy located at https://whatsuplakenorman.com/code-of-conduct/.
This Agreement sets forth the entire agreement and understanding between the parties, and all previous discussions, understandings, representations, negotiations, and agreements with respect to the matters included in this Agreement are merged herein. Additionally, the consideration recited herein is the full, complete and entire consideration for this Agreement, and there is no further consideration to be paid by any party to any other party other than as recited herein.
If any provision or part of a provision of this Agreement shall be determined to be void or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain valid and enforceable by any party.
This Agreement shall be governed by and construed under the laws of the State of North Carolina, Catawba County. In the event WUW prevails in any litigation or claim relating to the enforcement of the provisions contained herein, I agree to pay and indemnify WUW for its litigation expenses, including reasonable legal fees and court costs.
The courts of the State of North Carolina, Catawba County are to have jurisdiction to settle any dispute arising out of or in connection with this Agreement.
I expressly warrant and represent that before executing this Agreement I have fully informed myself of the terms, conditions and effect of this Agreement, and that have relied solely on my own judgment in executing this document.
I have read the terms of this WAIVER AND RELEASE OF ALL CLAIMS including but not limited to the provisions regarding Assumption of Risk, Release of Liability, Disclaimer of Express and Implied Warranties and the Covenant Not to Sue, and I understand that I am giving up substantial rights in consideration for my use of WUW's Rental Equipment. I enter into this agreement freely and voluntarily without any inducement.
Dated: March 26, 2023
PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK
In consideration of the services of What’s Up Watersports Inc, their agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as "WUP"), I hereby agree to release, indemnify, and discharge WUP, on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representative and estate as follows:
1. I acknowledge that my participation in personal watercraft, powerboats and skiboat activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.
The risks include, among other things: slips and falls; accidental drowning; boat or watercraft may capsize and cause entrapment; collision with objects or other watercraft; rapidly changing adverse weather and water conditions; watercraft is slippery when wet and accidents can occur getting in or out; exposure to the elements of the outdoors and natural surroundings which could cause cold water shock, hypothermia, hyperthermia (heat related illnesses), heat exhaustion, sunburn, or dehydration; exposure to potentially dangerous wild animals, insect bites, and hazardous plant life; aggressive and/or poisonous marine life; passengers can be jolted, jarred, bounced, thrown about and otherwise shaken during rides; passengers can be thrown off the machine resulting in strains, sprains, broken bones and musculoskeletal injuries including head, neck, and back injuries; cuts, abrasions, and bruises; the negligence of participants, or other persons who may be present; equipment failure or operator error; accidents involving other vehicles, vessels or watercrafts; flipping over the machine; accidents or illness can occur in remote places without medical facilities; transmissible pathogens or disease; my own physical condition, and the physical exertion associated with this activity.
Furthermore, WUP personnel have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant's fitness or abilities. They might misjudge the weather or other environmental conditions. They may give incomplete warnings or instructions, and the equipment being used might malfunction.
2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks. Additionally, I agree to wear a U.S. Coast Guard approved personal flotation device (life jacket) and wetsuit bottom (or clothing that provides equivalent protection) while participating in this activity.
3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless WUP from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of WUP’s equipment or facilities, including any such claims which allege negligent acts or omissions of WUP.
4. Should WUP or anyone acting on their behalf, be required to incur attorney's fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.
5. I certify that I have adequate insurance to cover any injury or damage I may cause or suffer while participating, or else I agree to bear the costs of such injury or damage myself. I further certify that I am willing to assume the risk of any medical or physical condition I may have.
6. In the event that I file a lawsuit against WUP, I agree to do so solely in the state of North Carolina, and I further agree that the substantive law of that state shall apply in that action without regard to the conflict of law rules of that state. I agree that if any portion of this agreement is found to be void or unenforceable, the remaining document shall remain in full force and effect.
By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against WUP on the basis of any claim from which I have released them herein. I also agree that this document is valid for subsequent visits and participation at WUP. I have had sufficient opportunity to read this entire document. I have read and understood it, and I agree to be bound by its terms.
In consideration of( ("Minor(s)") being permitted by WUP to participate in its activities and to use its equipment and facilities, I further agree to indemnify and hold harmless WUP from any and all claims which are brought by, or on behalf of Minor(s), and which are in any way connected with such use or participation by Minor(s).
Date: March 26, 2023
PROTECTIVE WETSUIT REFUSAL AGREEMENT
I, for myself and/or on behalf of my child or legal ward, have been fully warned and advised by What's Up Watersports Inc (hereinafter collectively referred to as ‘WUP’), that we should wear a properly fitted wetsuit bottom, or clothing that provides equivalent protection, while riding or being around personal watercraft (e.g. jet skis, wave runners, etc.) in order to protect against injuries and/or death caused by water from the jet thrust nozzle being forced into the rectum or vagina. I understand that by not wearing a properly fitted wetsuit bottom, or clothing that provides equivalent protection, I will be going against manufacturers’ requirements and putting myself at an increased risk for injuries, and against the advice of WUP and numerous court cases I am refusing this critical safety precaution.
I/we the undersigned have read the foregoing statement carefully before signing and do understand its warnings.
Date: March 26, 2023