This Disclaimer and Waiver of Liability Agreement (“Waiver Agreement”) is by and among the Participant and EPIC RIDE USA LLC, Jetsurf Factory Shop LLC, JetSurf USA LLC, JetSurf Academy USA LLC, MSWC s.r.o, MotoSurf Games (individually a “Company” and collectively, the “Companies”).
Certain terms used in this Waiver Agreement are defined as follows:
“Activity” means test ride, demo ride, training class, academy class, race, content shooting for marketing purposes, along with any other activity you participate in with any Company, including without limitation (i) test driving a Product; (ii) participating in a race; (iii) participating in training or classes; (iv) using a Product owned by you or owned by a Company, and / or (v) participating in all other events and activities conducted or sponsored by any Company at any location.
“Company” and “Companies” have the meanings described in the preamble. “We,” and “us” means the Companies.
“Governmental Authority” means any, federal, state, or local governmental entity or agency.
"Losses" means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance coverages.
“Participant” or “You” means the individual participating in an Activity and who has executed this Waiver Agreement (or if under 18 years of age, his or her parent or legal guardian has executed this Waiver Agreement on behalf of the Participant).
“Product” means motorized surfboard, electric surfboard, motorized skateboard, electric skateboard, electric motorcycle, electric motorbike, combustion motorcycle, e-foil, foil, boat, JetSurf Tube, OneWheel, along with any other product that is manufactured, offered for sale, rented, loaned, or otherwise provided by a Company.
“Representative” means any officer, director, manager, employee, contractor, agent, volunteer, or other person appointed by the Companies to referee, organize, or hold an Activity.
“Sponsor” means any third-party who may be sponsoring an Activity.
Information About You.
By execution of this Waiver Agreement, you thereby represent and warrant to the Companies that all the following are true and correct, as of the date of execution of this Waiver Agreement and continuing through the date of each Activity:
- I declare I am 18 years or over at the time of signing this Waiver Agreement.
- I am mentally competent and of sound mind.
- I am not suffering from any disability or restrictions that would prevent me from engaging in the Activity or that would increase any risk of harm during an Activity.
- If I am under the age of 18 at the time of signing this Waiver Agreement, my parent or legal guardian is executing this Waiver Agreement on my behalf and my parent or legal guardian has not revoked this Waiver Agreement on my behalf.
- I will not compete in the Activity unless I am medically fit on the day of the Activity.
- I certify to the Companies that I have personal medical insurance, fully covering any personal medical emergencies resulting from the Activity, wherever located.
- I certify that I am willing to assume the risk of any medical or physical condition I may have.
- Because the Activities can be strenuous and subject to risk of serious injury, the Companies urge you to obtain a physical examination from a doctor prior to engaging in any of these Activities. If you fail to do so, you waive your right to such examination and you do so entirely at my own risk.
Participation in Activities.
In order to participate in an Activity, the following requirements must be satisfied:
- You must have a fully executed Waiver Agreement on file with the Companies.
- You must be healthy and physically able to participate in the Activities.
- You must not be under the influence of any mind altering substances; provided, the Representative is not required to give you any substance test or determine whether or not your are fit to participate in the Activities.
- You must have a credit card or deposit on file with the Companies if so requested by the Representative.
- You must not have been previously removed from any prior Activities. If you have been so removed, you will not be allowed to participate in subsequent Activities without approval of the Representative.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS WAIVER AGREEMENT, THE COMPANIES RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, TO DENY ACCESS TO ANY PARTICIPANT IN AND TO THE ACTIVIES FOR ANY REASON OR FOR NO REASON.
Inherent Risks Associated with the Activities.
The Participant is hereby advised that participating in the Activities is very risky and may result in serious physical injury and death to you and others.
Listed below is a representative list of some of the risks and harms that may result if you participate in the Activities. The risks include, among other things: slips and falls; the possibility of rough water; the possibility of rough shoreline; colliding with objects or other people; riders may be jolted, jarred, bounced, thrown about, and otherwise shaken during rides; it is possible that riders could be injured if they come into contact with other passengers, Products, equipment, or other objects; injuries can be sustained from the ride, Products, equipment, or from items on the water or land such as holes, bumps, rights, obstacles, tree limbs, branches, rocks, waves, coral rock, objects on the ocean floor; concussions, strains, sprains, broken bones, and musculoskeletal injuries including head, neck, and back injury; cuts, abrasions, and bruises; cardiac related illness; Product or other equipment or material’s failure; condition of the terrain and property; uneven pavement, exposure to the elements of the outdoors and natural surroundings which could cause exhaustion, hypothermia, hyperthermia (heat related illnesses), heat exhaustion, sunburn, dehydration; exposure to potentially dangerous wild animals, stinges, insect bites, and hazardous plant life; passengers and riders can be thrown off the Products, which can result in any of the above events occurring; collision and flipping over; the negligent of participants, or other persons who may be present, accidents or illness can occur in remote places without medical facility; my own physical condition, and the physical exertion associated with these activities.
Further, other participants in the Activities are not within the control of the Companies (even of being supervised by a Representative) and such other participants may not have any experience in using the Products, they may be negligent, reckless, or even intentionally cause harm to personal property and to you or others.
Further, Company representatives at the Activities have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of your or other participant’s fitness, competency, 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. There are no assurances that the Company’s representatives conducting the Activities will be able to prevent harm to the Participant or others.
The Products have not been tested in all environments or uses. It is possible that you may use the Products in ways that the Products were not designed for and the Product may fail which may result in harm to you, others, and personal property.
The Participant acknowledges that the risks and harms described in this section is a general description and is not meant to be exhaustive but is meant to illustrate the dangerous nature of the Activities.
Assumption of Risk of Dangerous Activities.
By executing this Waiver Agreemenet or participating in the Activities, the Participant certifies to each Company that, at the time of execution of this Waiver Agreement and continuing with each participation in each Activity:
- I understand the risks in participating in the Activities. I have had an oppurtuntity to ask questions and inspect the place where the Activities will occur.
- After thoughtful consideration, I accept and assume all risks that may result from the Activities or the use of the Products, whether listed above or not, whether foreseeable or not, and with all known defects and unknown defects.
- In spite of all the warnings in this Waiver Agreement, I accept all risks of participating in the Activities and using the Products, even those caused by the negligent acts or conduct of a Company or its Representatives or other participants.
- I understand, consent, and agree, that there are inherent risks of participating in the Activities and using the Products, which may be both foreseen and unforeseen and include serious physical injury and death.
You are personnaly responsible for your own safety during the Activities.
The Participant certifies 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 Participant understands that his/her participation in the Activities is voluntary and further understands that he/she has the opportunity to inspect the Products and the site where the Activities will be held.
The Participant understands that he/she is obligated to follow the rules of the Activities, follow the directions of the Representatives, 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 Participant observes any unusual hazard or condition, which he/she believes jeopardizes his/her personal safety or that of others, he/she will immediately remove himself/herself from participation in the Activities and immediately bring said hazard or condition to the attention of Representatives.
Your safety is the highest concern of the Companies. A few words about safety and our Safety Rules:
- Your safety, and the safety of others, is of the utmost importance.
- Your safety is your responsibility. A little time spent in preparation will significantly reduce your risk of injury.
- Injuries are avoidable. This information alerts you to potential hazards that could hurt you or others and how to avoid them.
- Using the Products is an extreme sport that will require you to show skill, competence, and ability to use and control our Products in a safe manner.
- Safety comes first and you must operate the Products responsibly and under control at all times.
- Your Representative may instruct you on our Safety Rules, please take these Safety Rules serious and pay attention during such instruction, if any.
- The Representative acting as the instructor is allowed to stop the Activity if you present yourself in danger by exceeding Safety Rules or boundary limits.
- In addition to the Representative’s ability to remove you from the Activity at any time the Representative deems you a danger to yourself or others, If you do not follow or obey the safety rules, you will be called by the instructor to sharpen and emphasize the safety rule you did not follow. Riding safety procedure will be applied in the form of a “3 call system” as follows:
1st Time you are found not following one of the Safety Rules will be your 1st call - you will be called by the instructor to sharpen and emphasize the Safety Rule you did not follow.
2nd Time you are found not following one of the Safety Rules will be 2nd call - again, you will be called by the instructor to sharpen and emphasize the Safety Rule you did not follow.
3rd Time you are found not following one of the Safety Rules will be 3rd call - you will be called by the instructor to end the class after exceeding our safety limits and being irresponsible and present yourself in a risk.
Notwithstanding the above, if the Representative determines that you are a danger to yourself, others, or the Equipment, you may be removed immediately from the Activity.
Removal From Activity By Representative.
If your behavior, actions, or inactions are such that the Representative determines that you are a danger to yourself, others, or the Equipment, you may be removed immediately from the Activity and no refund will be given to you for any admission fee you may have paid. The determination of the Representative is final and non-appealable.
In any Activity that involves any competition, the Participant agrees, acknowledges, and consents as follows:
- Any violation of these Racing Rules could lead to your immediate disqualification, as determined solely by the Representative acting as the race referee, whose decision is final and non-appealable.
- The Representative acting as the race referee has the absolute power to withdraw you or any other participant the Representative considers unfit to continue for any reason.
- The race timetable will be strictly adhered to and any competitor reaching the race location after the scheduled time will be withdrawn from the event.
- I agree to follow the rules and regulations as set out by the organizers and the Representatives and to obey the officials, marshals and race judges at all times.
- To the greatest extent permitted by law, and without limiting any other provision in this Agreement to the contrary, I accept that neither the Company acting as the organizer, its Sponsors, and any Governmental Authority, nor any of their agents, will be liable for any Losses which may arise in consequence of the Participant’s participation in the Activities.
Things to be Aware of When Participating in Ocean Based Activities.
- Always be aware of other boaters, jet skiers, and anyone else on the water at all times. Keep at least 50 yards distance from all other vessels and people.
- Safety distance: you cannot get close to the shore, docks, boats, and/ or other vessels; you will have to keep at least 50 yards of safety distance from the shore, docks, and boats. Exceeding this distance will be a violation of the safety regulations.
- Boundaries: you cannot go out to 'open sea'. The instructor will show you at the beginning of the class the farthest place you can get to.
- Engine starting: you are allowed to start the engine again after it shut off, only with the permission of instructor. (Starting the engine without the instructor's permission will be a violation of the safety regulations)
- At class time, while the instructor is in the water with you, you will have to ride always in front of the instructor and you will not be able to cross behind the instructor. (Crossing behind the instructor will be a violation of the safety regulations).
Damages Caused by the Participant.
The Participant shall be solely responsible for all damages to the Companies’ Products, equipment, facility, and personal property resulting from the negligence or intentional conduct of the Participant. Prior to participating in any Activity, the Companies may request that you place a credit card or other deposit to cover any damage you may cause. You will be responsible for all such damages, even if such damages exceed the amount chargeable to your credit card or deposit.
Photoqraphy, Video, and Digital Release.
The Participant hereby irrevocably grants to each Company, each Sponsor, and each Governmental Authority, the right to use my likeness in photographs, videos, sound recordings and other digital media in connection with my participation in the Activities (collectively, the “Recordings”). I further irrevocably authorize each Company to edit, crop, alter, copy, exhibit, publish, compile, digest, or distribute these Recordings for any lawful purpose. In addition, I irrevocably waive any right to inspect or approve the finished product wherein my likeness appears. Additionally, I irrevocably waive any right to royalties or other compensation arising or related to the use of the Recordings.
I hereby hold harmless, release, and forever discharge each Company, Sponsor, and Governmental Entity from all claims, demands, and causes of action which I, my heirs, representatives, executors, administrators, or any other persons acting on my behalf or on behalf of my estate have or may have by reason of this Photography, Video, and Digital Release.
This Waiver Agreement shall commence at the date and time it is executed and shall remain in effect until the Participant (or if under 18 years of age, his or her parent or legal guardian) gives written notice of termination of this Waiver Agreement to the Companies.
Modification to this Waiver Agreement.
From time to time, the Companies may make modifications to this Waiver Agreement. Even if you have an executed Waiver Agreement on file, the Companies may deny you access to Activities unless you agree to execute and deliver a modified Waiver Agreement.
This is an important legal document, which affects your legal rights and obligations. Before signing this Agreement, you should ensure that you fully understand its contents.
Indemnification Of Companies.
The Participant (or the parent and legal guardian of any minor executing this Waiver Agreement on behalf of a Participant), on behalf of its agents, heirs, assigns, executors, and personal representatives (collectively, “Indemnifying Parties”), hereby agrees indemnify each of the Companies, each Sponsor, and each Governmental Entity, and each of their respective owners, affiliates, Representatives, operators, employees, agents, officers, and/or any entity to which any Company owes a contractual indemnification obligation (collectively, the “Indemnified Parties”), from all liability for any Losses that the Indemnified Parties may suffer, arising out of (i) the Participant’s participation in the Activities; (ii) the Participant’s use of the Products; and, (iii) the actions and inactions of the Participant.
Release Of Company Group.
The Participant (or the parent and legal guardian of any minor executing this Waiver Agreement on behalf of a Participant), on behalf of himself or herself and all Indemnifying Parties, hereby releases the Indemnified Parties from all claims or Losses the Indemnifying Parties may have against the Indemnified Parties resulting from (i) the Participant’s participation in the Activities; (ii) use of the Products; or (iii) breach of any representation, warranty, or covenant in this Waiver Agreement. The Participant’s obligation for such indemnity shall apply if the actions or events giving cause to such Losses occurred at any time while this Waiver Agreement is in effect, even if this Wavier Agreement is later terminated. The Participant specifically understands that he/she is releasing any and all claims that arise or may arise from any negligent acts or conduct of the Indemnified Parties, whether known or unknown, to the fullest extent permitted by law.
Limitation of Liability.
IN NO EVENT WILL THE COMPANIES, SPONSORS, OR GOVERNMENTAL AUTHORITIES, OR THEIR REPRESENTATIVES, OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR PARTICIPATION IN THE ACTIVITIES OR USE OF THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWELVE-MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Whenever the context may require, any pronoun used in this Waiver Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns and verbs shall include the plural and vice versa. When a reference is made in this Waiver Agreement to a Section or Schedule, such reference shall be to the Section or Schedule of this Waiver Agreement unless otherwise specifically indicated. Whenever the words “include,” “includes” or “including” are used in this Waiver Agreement, they shall be deemed to be followed by the words “without limitation.” The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Waiver Agreement shall refer to this Waiver Agreement as a whole and not to any particular provision of this Waiver Agreement. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Waiver Agreement, the date that is the reference date in calculating such period shall be excluded; if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. For purposes of this Waiver Agreement, “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Broward County, Florida are authorized or required by law to remain closed.
This Waiver Agreement constitutes the entire agreement and understanding between you and the Companies The failure to exercise or enforce any right or provision of this Waiver Agreement shall not operate as a waiver of such right or provision. The terms and conditions of this Wavier Agreement shall be enforced to the fullest extent permissible by law. The Companies’ may assign any or all of our rights and obligations under this Waiver Agreement to others at any time. If any provision or part of a provision of this Waiver Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Waiver Agreement and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between the Participant and the Companies as a result of this Waiver Agreement, participating in the Activities, or use of the Products. You agree that this Waiver Agreement will not be construed against the Companies by virtue of having drafted this Waiver Agreement. You hereby waive any and all defenses you may have based on the electronic form of this Waiver Agreement and the lack of signing by the parties hereto to execute this Waiver Agreement.
The Participant (and the Participant's parent(s) or legal guardian(s) if the Participant is a minor), hereby agrees to submit any dispute, claim, or controversy, relating to and/or arising from (a) this Waiver Agreement, (b) Participant's participation in the Activities, and/or (c) any other interaction between the Participant and any Company, including the determination of the scope or applicability of this agreement to arbitrate, to binding arbitration. For such disputes, there shall be a three-member arbitration panel, consisting of two party-appointed arbitrators (one arbitrator to be appointed by each party) and one neutral arbitrator (collectively, the "Panel"), to be chosen by the party-appointed arbitrators. In the event that the two party-appointed arbitrators are not able to agree on a third, neutral arbitrator, the neutral arbitrator shall be appointed by the United States District Court for the Southern District of Florida. Each party shall pay its own costs, including the costs associated with the party-appointed arbitrators, and the parties shall share equally the costs associated with the neutral arbitrator. The arbitration proceeding shall proceed in Broward County, Florida, and shall be governed by the Federal Rules of Evidence. The Panel shall establish a reasonable and appropriate discovery schedule to expeditiously resolve this matter. The Panel may permit or limit discovery as the Panel shall determine. As a threshold matter, the Panel shall confirm whether the Waiver Agreement is enforceable under applicable law. Judgment on the award may be entered in any court having jurisdiction over the parties and controversy. Participant and Companies specifically intend this Binding Arbitration provision to survive in the event that any other portion of this Agreement is held invalid.
NOTICE TO PARTICIPANT: By signing this Agreement, you are giving up your right to commence litigation against the applicable Company in a court of law, and you are giving up your right to a trial by jury.
WAIVER OF JURY TRIAL.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT.
I have had sufficient opportunity to read this entire Waiver Agreement and ask questions, and I am satisified with the terms and conditions in this Waiver Agreement. I have had an opportunity to seek legal counsel regarding the same or waive my right to do so. I have read and understood this Waiver Agreement and I hereby agree to be bound by all of its terms and conditions.
NOTICE TO THE MINOR CHILD'S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF THE COMPANIES USE REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD'S RIGHT AND YOUR RIGHT TO RECOVER FROM THE COMPANIES IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY.
YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM AND THE COMPANIES HAVE THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
I/WE HAVE READ THE ABOVE WAIVER AND RELEASE, UNDERSTAND THAT I/WE HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, HAVE NOT CHANGED IT ORALLY, AND SIGN IT VOLUNTARILY.
I HEREBY CERTIFY THAT I AM THE PARENT OR THE LEGAL GUARDIAN OF THE PARTICIPANT AND THAT I HAVE ALL NECESSARY CUSTODIAL AUTHORITY TO EXECUTE AND DELIVER THIS WAIVER AGREEMENT ON BEHALF OF THE PARTICIPANT. IF FOR ANY REASON I DO NOT HAVE SUCH AUTHORITY, THEN I UNDERSTAND THAT I WILL BE PERSONALLY LIABLE UNDER THIS WAIVER AGREEMENT.
I PERSONALLY AND INDIVIDUALLY GUARANTEE THE PARTICIPANT’S PERFORMANCE OF ALL THE TERMS AND CONDITIONS IF THIS WAIVER AGREEMENT.
Electronic Signature Consent
By checking here, you are consenting to the use of your electronic signature in lieu of an original signature on paper. You have the right to request that you sign a paper copy instead. By checking — here, you are waiving that right. After consent, you may, upon written request to us, obtain a paper copy, an email, or another copy of an electronic record. No fee will be charged for such copy and no special hardware or software is required to view it. Your agreement to use an electronic signature with us for any documents will continue until such time as you notify us in writing that you no longer wish to use an electronic signature. There is no penalty for withdrawing your consent. You should always make sure that we have a current email address in order to contact you regarding any changes, if necessary.