In consideration of the services of Kayak Adventures Worldwide, LLC, as well as Kenai Fjords National Park, Alaska State Parks, Alaska Wildland Adventures, Alaska Explorer Charters, Alaska Coastal Safaris, and their various agents, owners, officers, volunteers, sponsors, parent or subsidiary corporations, participants, employees, subcontractors, sales agents and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as “K.A.W.”), I hereby agree to release and discharge K.A.W. on behalf of myself, my parents, my legal and personal partners, my heirs, assigns, personal representative and estate as follows:
1. Inherent Risks I/we acknowledge that water related activities such as motor boating or sea kayaking and living, traveling and recreating in the wilderness entail known and unanticipated risks that could result in physical or emotional injury, death, or damage to myself, to property, or to third parties. I/we understand and acknowledge that the enjoyment and excitement of adventure activities - in this case sea kayaking and boating - is derived in part from inherent risks incurred by travel and activity beyond the accepted safety of life at home or in my normal day to day activities and that these inherent risks contribute to my/our enjoyment and excitement and are an integral reason for my/our participation in this activity. I/we understand that such risks cannot be eliminated without jeopardizing the essential qualities of the activity. I/we also understand and acknowledge that failing to use or properly use assigned safety type equipment such as personal flotation devices and/or my failure to follow instructions increases my/our risk of injury or of not surviving an accident or incident while boating or sea kayaking.
I/we acknowledge that I/WE ARE ULTIMATELY RESPONSIBLE for my/our own safety during my/our participation in K.A.W. events/activities.
The inherent risks associated with the boating, sea kayaking or water related activity in which I/we are about to participate include, but are not limited to: sustained rigorous activity or paddling that may be mentally and physically stressful, encountering large or erratic waves, eddies, tidal conditions or currents and changing sea conditions and the possibility that I/we will be jolted, jarred, bounced, thrown to and fro and shaken about during rides through some of these changing water flows; it is possible that I/we could be injured if I/we come in contact with paddles or other equipment necessary to the operation of the boat or sea kayaking activity and the outfitting of the boats or sea kayaks; I/we recognize there are foot holds in a sea kayak which may assist in stabilizing or steering my/ourselves in the sea kayak but which may present an increased risk of knee, ankle or other injury as a result of restricted or sudden movement; the boats or sea kayaks may break down or be faulty; it is possible that loss of control of a boat or sea kayak could occur resulting in collision, capsizing or swamping and that if a boat or sea kayak turns over I/we could be "washed" overboard; boats and sea kayaks are slippery when wet and are unstable so that I/we could slip and fall or be knocked out of the boat or sea kayak even in flat or non-moving water; I/we understand that the areas in which I/we might walk sometimes hide dangerous obstacles such as tree wells, tree stumps, ice and glaciers, creeks, rocks and boulders, forest dead fall, etc.; the boats or sea kayaks or any portion of them may collide with or encounter other boats, sea kayaks, man-made or natural objects including submerged or semi-submerged ice, trees, slippery rocks, branches, fallen trees, boulders, docks, etc.; accidents can occur getting on and off or into or out of the boats or sea kayaks; the weather in the areas in which I/we may boat or kayak can be unpredictable and change rapidly; exposure to the natural elements can be uncomfortable and/or harmful and I/we are aware that this exposure could cause sea sickness, sunburn, dehydration, heat exhaustion or heat stroke, cold or hypothermia, some or all of which may diminish my/our or the other participants ability to react or respond; I/we understand that prolonged exposure to cold water can result in hypothermia and in extreme cases death; I/we may encounter dangerous or aggressive or poisonous wildlife, marine life, insects, etc.; communication in the “off-shore” or marine environment in which this activity occurs is always difficult and in the event of an accident, rescue and medical treatment may not be immediately available.
The inherent risks associated with hiking, general sightseeing, and living in camp or wilderness type settings during camping and se-kayaking tours also include, but are not limited to: slipping or falling during camp activities, hiking or portaging or getting to and from one of the boats or water craft and I/we understand that the areas in which I/we might hike in general (whether doing a water related activity or not...) sometimes hide dangerous obstacles such as tree wells, tree stumps, creeks, rocks and boulders, slippery streams, muskeg, forest dead fall, poisonous or noxious plants, etc. I/we specifically acknowledge that the inherent risks associated with lodging in tents may feel different than a normal building and may include areas of low head room, small or cramped spaces, etc., all of which may feel un-natural and cause me/us to become disoriented or trip or fall; tents are particularly subject to issues related to inclement weather, temperature variations and wildlife attacks. I/we acknowledge that the camping and traveling lifestyle will require me/us to use equipment that I/we might not be familiar with and will require me/us to interact with other guests and participants with whom I/we are also unfamiliar; both of these things can cause my/our discomfort and stress and have inherent risks. I/we acknowledge that there are numerous other issues I/we may encounter, such as campfires and latrine issues which, while they seem open and obvious, also have inherent risks associated with them.
I acknowledge that my time participating in K.A.W. events/activities may require me to use technical equipment (IE – kayaks, personal flotation devices, dry bags, etc.) that I might not be familiar with and that I or other participants may find difficult to use and which I or other participants may use incorrectly. This improper use or operation may include, but is not limited to: the failure to observe and obey all safety rules or instructions given to the participant by K.A.W. guides/staff. I acknowledge that, despite reasonable care and maintenance, essential equipment may fail, malfunction or cause injury or worse harm to myself or others. I acknowledge that food preparation is an integral part of some of these activities and that I and other participants may be eating in the outdoors and/or community style environments and that some of the food may not be to my liking; there may be errors in food storage or preparation that could cause my dissatisfaction and/or illness; I acknowledge my responsibility to inform K.A.W. of any specific food related allergies. I acknowledge the responsibility to carry my own necessary medications and my own responsibility to be able to administer these medications.
I/we acknowledge and understand that this activity may include ground transport in remote and urban areas and that transport may be provided by independent contractors to K.A.W. and may involve errors in judgment by those independent contractors so that an inherent risk of travel with K.A.W. may involve use by or travel with entities over which K.A.W. has no authority or control. By signing this Participant Assumption of Risks and Acknowledgement of Inherent Risks Agreement, I/we acknowledge that I/we are ultimately responsible for my/our own safety during my/our use of, participation with or travel with these other entities.
I/we understand and expressly acknowledge that I/we have responsibilities, including the responsibility for my/our own safety while participating in any or all of the activities associated with or provided by K.A.W. I/we also acknowledge that I/we have the responsibility to inspect any and all facilities or equipment to be used and to immediately advise K.A.W. of anything which I/we consider to be unsafe or to refuse to participate. Furthermore, K.A.W. employees, agents, instructors and guides have difficult jobs to perform. They seek safety, but they are not infallible. They may be ignorant of my/our or another participant’s fitness or abilities. They may give inadequate warnings or instructions and/or I/we as the participant(s) may fail to understand the safety directions due to language issues. I/we specifically acknowledge that decisions made by guides/staff and participants are often made quickly and in difficult settings and are often based on imprecise, momentary and subjective perceptions so that decisions are subject to errors in judgment that cannot and should not be associated with fault at a later point in time. I also expressly acknowledge that the normal recreational activities which are offered by K.A.W. and which are the subject of this release contract may involve ‘staging’ or deploying in and out of areas that include K.A.W.’s wholly owned properties, various private properties and permitted and public properties.
2. Express Assumption of Risk I expressly agree and promise to accept and assume all the risks existing in this activity. This means I am not just assuming the inherent risks of the activity but rather that I am assuming all of the risks of the activity, even if they are not expressly stated in this document. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks. I expressly agree and acknowledge that the terms and conditions of this Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement are contractual in nature and that I am signing it of my own free will. This is a purely voluntary un-necessary activity for me and even if I do not (or claim that I do not) have knowledge of a particular risk, this express agreement to assume all risks whether they are known or unknown to me is intended to defeat all claims I might have against K.A.W.
3. Specific Express Legal Agreements My specific reasonable expectation in signing this release is that this release contract will be given broad effect by the Alaska courts even if a specific risk or possible claim is not listed herein. I expressly agree that a term of this release contract is my agreement and acknowledgement that I am waiving arguments against K.A.W. as to when and where an activity begins or ends and that once I am engaged in any way in a K.A.W. activity this release contract will apply. I agree that, even absent the expressions in this release contract, the doctrines of assumption of the risks (all risk) and inherent risks negate my claims against K.A.W. and that this release enunciates these three theories separately.
4. Release and Waiver of Rights Including for Claims of NEGLIGENCE I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless K.A.W. 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 K.A.W.’s equipment or facilities, including any such Claims which allege any theory of negligence including negligent acts or omissions of K.A.W. (‘K.A.W.’ being its employees and those defined in the opening paragraph of this document). What I am agreeing to in this clause is that, beyond the legal application of the inherent risk and assumption of the risk provisions, this separate provision means I am waiving all claims I might have against K.A.W. sounding in negligence. I agree that the specific risks of death, injury or other property damage are clear and unambiguous to me and that, even if a specific mechanism of injury is not listed in this document it is my express agreement not to hold K.A.W. liable for negligence related to my death or injury or any other style of damage.
5. Indemnity Should K.A.W. or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement or defend against lawsuits or claims brought by me, I agree to indemnify and hold them harmless (in other words, I agree to pay for...) for all such fees and costs. Plainly put – if I or anyone else violates this contract and brings suit against K.A.W. I agree to pay all of K.A.W.’s costs and legal fees in defending themselves.
6. Personal Skill & Insurance I certify that I have sufficient skill and fitness to participate in the activities offered by K.A.W. I further certify that I have no medical, mental or physical conditions which could interfere with my safety or ability to participate in these activities, or else I am willing to assume and bear the cost of all risks that may be created, directly or indirectly, by any such condition. I further certify that I have adequate insurance to cover any injury, damage or emergency transportation costs I may cause or suffer while participating, or else agree to bear the costs of such injury, damage or emergency transportation costs myself.
7. Medical Issues I further agree that, in the event that K.A.W. deems it necessary to administer emergency first aid or CPR or to remove me from its activities or premises or from the field or to seek emergency medical care for me that, by signing this document, I am giving K.A.W. permission to: administer emergency first aid or CPR, secure emergency transport or medical care and/or disclose any medical information it may have about me to any health care provider which may become involved in my care, treatment or removal from the field. By signing this document I am waiving any right to object to or bring any type of action or claim against K.A.W. for its administration of emergency first aid or CPR or for securing emergency transport or medical care and/or for the disclosure of personal medical information it may have about me to any health related person who becomes involved in my care or removal from K.A.W. activities or the field.
8. Photographic Assignment I understand that K.A.W. reserves the right to take photographic or film (of whatsoever nature) records of any or all activities and I hereby agree that K.A.W. may use such records for promotional and/or commercial purposes without any remuneration to me. I hereby assign all right, title and interest I may have in or to any and all media in which my name or likeness might be used by K.A.W. I agree and acknowledge that K.A.W. cannot control media or photographic images of me that may be generated or disseminated by other participants or third parties.
9. Release as Contract and Personal Capacity I expressly agree and acknowledge that the terms and conditions of this Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement are contractual in nature and that I am signing this contract of my own free will. I expressly acknowledge that I am not under the influence of drugs or alcohol at the time of my signing of this document and that there are no other impediments or reasons why I would lack the capacity to enter into this contract with K.A.W.
10. Forum Selection, Severability, Breach of Contract/Warranty Waiver, Etc. In the event I file a lawsuit against K.A.W., I agree to do so solely in the Third Judicial District of the State of Alaska, and I further agree that the substantive law of Alaska shall apply in that action without regard to the conflict of law rules of that state. I hereby irrevocably waive any other jurisdiction or venue to which I or my estate might otherwise have been entitled. I agree to submit to the jurisdiction of the Alaska courts. I agree that if any portion of this agreement/contract is found to be void or unenforceable, the remaining portion shall remain in full force and effect; this document is intended to be interpreted as broadly as possible. A copy of this release contract can be used as if it was the original.
I understand that this document constitutes the entire Agreement/Contract between myself and K.A.W. and that it cannot be modified or changed in any way by representations or statements of any nature (be they vocal, advertising, etc.) outside of this document; in other words, I am also waiving any claims I might have for breach of contract or warranty for statements or representations made outside of this release contract.
By signing this document, I acknowledge that if anyone is hurt or killed 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 K.A.W. on the basis of any claim from which I have released them herein.
I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT (ALL 4 PAGES).
I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.
My express intention in signing this complete release of claims document is to voluntarily exchange this release contract with K.A.W. for the opportunity to participate in recreational activities with K.A.W.