IN CONSIDERATION of the undersigned’s rental of equipment from, and/or participation in certain activities provided by, TKS Concession, LLC, including without limitation, tours and lessons (any and all such activities, hereinafter the “activities”), the undersigned and, if applicable, the parent(s), spouse and/or guardian(s) of the undersigned, jointly and severally, and intending to legally bind themselves, and on behalf of their respective spouses, parents, heirs, executors, estates, legal and personal representatives, beneficiaries, admisnistrators, successors and assigns (all of the forgoing, collectively “Releasors”), do hereby full waive, release and discharge, and covenant not to sue, TKS Concessions, LLC and Boucher Brothers Miami Beach, LLC, and the governmental or private entity upon whose property the activities are to be conducted and their respective, affiliates, officers, directors, members, managers, employees, staff, agents, successors and assigns, (collectively, “Releasees”) from any and all liability and/or claims of illness, injuries, death, shock, paralysis, allergic reactions, and/or damages that may arise directly or indirectly as a result of undersigned’s use of rental equipment or participation in the activities, including, without limitation, any rights, claims, causes of action, suits, liabilities, negligence, gross negligence, conditions of the premises, weather or water conditions, damages, personal injury, death, loss of consortium, costs and expenses whatsoever, whether arising at law or in equity, or under any local, state or federal law or regulation, and whether caused by the sole or joint negligence or tortious or other act or omission of the Releasees or any of them or any third party (collectively, the “Claims”). The Releasors hereby agree to indemnify and hold the Releasees harmless from all such Claims. The Releasors acknowledge that the terms of this Release and Waiver are contractual and not a mere recital. The Releasors hereby knowingly and voluntarily waive, to the fullest extent permitted by law, the benefits of any statute, law, rule or common law which may limit the scope of the covenants and releases contained herein.
The Releasees are fully aware, understand fully and assume the risks involved in the activities including, without limitation, the followoing: weather or water conditions; that there may be rip tides, wind shears, lightning, wave action, currents, water spouts and other acts of God and force majeure events, as well as equipment failure, operator error, collisions, capsizing, sinking, exposure to elements, hypothermia, drowning and other hazards; that Releasors are not Lifeguards, water safety instructors and otherwise have no experience or expertise that would assist the undersigned in the event that the undersigned experiences trouble while in the water, operating the equipment or otherwise participating in the activities; that there are hazards, known and unknown, that may exist and which could injure or kill the undersigned inluding, without limitation, marine fauna and flora, sharks, barracuda, sting rays, jelly fish, obstructions, floating or submerged objects, glass, and other objects; that other Hotel guests, members of the public and other operators of equipment may act irresponsibly, engage in unsafe conduct or to the detriment of the health and well being of the undersigned; That Releasees are not the manufacturers of the equipment; that equipment can malfunction, breakdown and otherwise not work properly; that any of the foregoing could result in death or bodily injury to the undersigned and, in each instance, the Releasors and each of them voluntarily and knowingly assume all such risks and waive, release and discharge, and covenant not to sue, the Releasees or any of them with respect to any Claims or other hazards set forth above with respect thereto.
The Releasors further acknowledge and agree that the undersigned has and without compulsion or compensation or reliance on any representation of any kind whatsoever by the Releasees or others voluntarily decided to rent the equipment and/or participate in the activities and to assume full, sole and complete responsibility for, and risks of, death, bodily injury, property damage and the other risks and hazards described herein resulting from, in connection with, or in any way related to, undersigned’s participation in the activities and to waive and release the Claims and other hazards set forth above as provided herein.
The Releasors, and each of them, hereby agree that they will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by way of action, defense, set-off, cross-complaint, counterclaim or third party action, against the Releasees, or any of them, based on, relating to, or arising out of, or in connection with any Claims or other hazards set forth above.
By their execution below, understanding that the Releasees are relying hereon in allowing undersigned to rent the equipment and otherwise participate in the acivities, the Realeasor hereby represent and warrant to the Releasees, that (i) the undersigned is at least 18 years or, if not, that his/her living parents and/or legal guardian(s) have duly signed this Release and Waiver, (ii) the undersigned is not married or, if married, that his/her spouse has duly signed this Release and Waiver, if available (iii) the undersigned has no physical, mental or other medical condition, disease or injury which would or could impact on the Releasees allowing undersigned to rent the equipment or would be aggravated by such operation or activities, (v) the undersigned is not under the influence of alcohol or drugs; and (vi) the undersigned understands applicable boating laws and right of way. The undersigned further agrees that, in connection with any water activities, the undersigned will wear a U.S. Coast Guard approved personal flotation device or life jacket (PFD).
IN THE EVENT OF ANY LEGAL OR ADMINISTRATIVE ACTION, MEDIATION OR ARBRITATION PROCEEDING, IS BROUGHT BY THE UNDERSIGNED, THE RELEASORS OR ANY OF THEM, OR ON THEIR BEHALF, THE RELEASORS AGREE THAT THEY (1) SHALL BE RESPONSIBLE FOR ALL COSTS AND EXPENSES THEREOF INCURRED BY THEM OR ANY OF THE RELEASEES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEESAND EXPENSES); (2) HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION IS NOT AVAILABLE THEREIN, THE JURISDICTION OF ANY COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA, AND WAIVE ALL OTHER JURISDICTIONS AND ANY AND ALL OBJECTIONS TO SUCH JURISDICTION OR VENNUE THAT THEY MAY HAVE UNDER THE LAWS OF ANY STATE OR COUNTRY, INCLUDING, WITHOUT LIMITATION, ANY ARGUMENT THAT JURISDICTION, SITUS AND/OR VENUE ARE INCONVENIENT OR OTHER WISE IMPROPER; AND (3) THE LAWS OF THE STATE OF FLORIDA SHALL GOVERN WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREUNDER.
EACH OF THE RELEASORS ATTESTS THAT THEY HAVE READ THIS RELEASE AND WAIVER IN ITS ENTIRETY AND HAVE PROVIDED TRUE AND COMPLETE INFORMATION.