Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement BY PARENT/LEGAL GUARDIAN
PARENT/LEGAL GUARDIAN: READ THIS DOCUMENT CAREFULLY BEFORE SIGNING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT THE LEGAL RIGHTS OF YOU AND YOUR MINOR CHILD/LEGAL WARD AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS ON BEHALF OF YOURSELF AND/OR YOUR MINOR CHILD/LEGAL WARD.
I. DEFINITIONS: For the purposes of this agreement, the following terms shall be defined as follows:
The term "CAMP PROGRAMS" shall mean all activities, programs, instruction, services, transportation, accommodations and use of facilities by Highland Mountain Bike Park's camp participants.
The term “Claims” shall mean claims, counterclaims, cross-claims, demands, rights, actions or causes of action, suits, arbitrations, obligations, debts, demands, agreements, promises, liabilities, damages, judgments, decrees, controversies, costs and expenses, and attorneys’ fees, of whatever nature, character or description, liquidated and unliquidated, fixed and contingent, matured and unmatured, disputed and undisputed, known or unknown, foreseen or unforeseen, accrued or unaccrued, choate or inchoate, both in Law and in Equity.
The terms “I”, “me” or “my” shall mean the undersigned and as well as undersigned’s spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on the undersigned’s behalf.
The term "MOUNTAIN BIKING" shall include all activities, services, transportation and use of facilities provided for or arranged by the RELEASEES including but not limited to: cycling; bike descents; mountain bike tours: training; use of trails and roads in the RECREATION AREA; races; competitions; instructional courses; CAMP PROGRAMS or any other activity related to the riding of bicycles and any other vehicles (whether propelled by the rider thereof, self-propelled, or otherwise) including but not limited to: orientation and instructional session, transportation, accommodation and recreational activities in addition to bicycling, loading, unloading and travel in or movement around the RECREATION AREA; and all other activities in the RECREATION AREA.
The term “PARTICIPANT” shall mean the minor child/legal ward named above and his/her parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on the said minor child’s/legal ward’s behalf..
The term "RECREATION AREA" shall mean all areas constituting Highland Mountain Bike Park and Gravity Mountain and all areas and facilities used by the RELEASEES through their CAMP PROGRAMS.
The term "RELEASEES" shall mean Highland Mountain Bike Park, Inc., and Gravity Mountain, Inc., their respective directors, officers, employees, guides, independent contractors, successors, agents, representatives and assigns.
By signing this RELEASE OF LIABILITY, you attest that you are the parent or legal guardian of the PARTICIPANT. On behalf of yourself and the PARTICIPANT, you acknowledge and agree to the following:
II. ASSUMPTION OF RISKS
A. INHERENT RISKS
I, on behalf of myself and the PARTICIPANT, acknowledge and accept that MOUNTAIN BIKING involves risks, dangers and hazards in addition to those normally associated with bicycle riding and that injuries are a common and expected part of MOUNTAIN BIKING. MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain takes place on steep and rugged terrain and will expose the rider/participant to many risks, dangers and hazards. The terrain may be uninspected, uncontrolled and unsafe due to any number of conditions, some of which may be constantly changing. I, on behalf of myself and the PARTICIPANT, understand that MOUNTAIN BIKING carries with it inherent risks of physical injury. Inherent risks are risks that cannot be eliminated completely regardless of the care and precautions taken by RELEASEES. I, on behalf of myself and the PARTICIPANT, also understand that MOUNTAIN BIKING can be extremely strenuous with the accompanying risks and dangers generally present in such activities. I, on behalf of myself and the PARTICIPANT, understand and acknowledge that the inherent risks, hazards and dangers include but are not limited to the following:
- contact or collision with persons or objects (e.g., collision with spectators or course personnel, contact with other riders of bicycles, contact or collision with motor vehicles or machinery, and contact with natural or man-made fixed objects or obstacles including trees, tree stumps, rocks, debris or other objects;
- the use of chairlifts and proximity to chairlifts, towers, fences and other man-made structures;
- mechanical failure of equipment (e.g., broken, defective or inadequate equipment, unexpected equipment failure);
- rapid and uncontrolled acceleration on hills and declines;
- changing weather conditions or other weather related hazards (e.g., extreme heat, humidity, rain, fog);
- natural hazards (e.g. uneven or unsafe terrain (including steep or slippery sections, cliffs, rocks, holes, or crevasses), rock falls, lightning strikes, earthquakes, wildlife attacks (encounters with domestic and non-domestic animals), contact with poisonous plants, marine life, ticks and untested soil/mud contaminated with bacteria or other similar hazards);
- variations in cycling terrain;
- falling or being thrown off the mountain bike;
- judgment- and/or behavior-related problems (e.g., erratic or inappropriate co-participant or spectator behavior, erratic or inappropriate behavior by the participant); and
- negligence of other riders.
B. RISKS RELATED TO CORONAVIRUS/COVID-19
The novel coronavirus (“COVID-19”) has been declared a worldwide pandemic by the World Health Organization (WHO). COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. COVID-19 infections have been confirmed throughout the United States, including several cases in New Hampshire. In accordance with the most recent guidance and protocols issued by the WHO, the Centers for Disease Control and Prevention (CDC) and the New Hampshire Department of Health and Human Services for slowing the transmission of COVID-19, RELEASEES have put in place preventative measures to reduce the spread of COVID-19. I, on behalf of myself and the PARTICIPANT, acknowledge and agree that RELEASEES may revise their procedures at any time based on updated recommended guidance and protocols issued by aid public health agencies and further agrees to comply with RELEASEES' revised procedures prior to utilizing their facilities, services, and programs. However, RELEASEES cannot guarantee that the PARTICIPANT will not become infected with COVID-19. I, on behalf of myself and the PARTICIPANT, fully understand and appreciate both the known and potential dangers of utilizing the RELEASEES‘ facilities, services, and programs and acknowledge that the PARTICPANT’s use thereof, despite RELEASEES' reasonable efforts to mitigate such dangers, result in exposure to COVID-19, which could result in quarantine requirements, serious illness, disability, and/or death. By signing this agreement, I, on behalf of myself and the PARTICIPANT, acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that the PARTICIPANT may be exposed to or infected by COVID-19 by utilizing the RELEASEES’ facilities, services, and programs and that such exposure or infection may result in personal injury, illness, permanent disability, and death. I, on behalf of myself and the PARTICIPANT, voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to the PARTICIPANT (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that the PARTICIPANT may experience or incur in connection with use of RELEASEES’ RECREATION AREA or other facilities and equipment and/or participation in MOUNTAIN BIKING.
Further, in consideration for being permitted to utilize the RELEASEES’ services, and programs including, but not limited to, use of RECREATION AREA or any other facilities or equipment or participation in any CAMP PROGRAMS conducted by or otherwise affiliated with RELEASEES, I, on behalf of myself and the PARTICIPANT, hereby acknowledge, agree, represent, and warrant that the PARTICIPANT shall not visit or utilize the facilities, services, and programs of the RELEASEES within fourteen (14) days after (i) returning from highly impacted areas subject to a CDC Level 3 Travel Health Notice, (ii) exposure to any person returning from areas subject to a CDC Level 3 Travel Health Notice, or (iii) exposure to any person who has a suspected or confirmed case of COVID-19. The CDC Travel Health Network is continuously updating this list and I agree that I am aware of this list and the countries listed. I agree to check the CDC Travel Health Notices list (https://www.cdc.uovicoronavirus/2019-neov/travelers/indcx.htral) prior to utilizing the facilities, services, and programs of the RELEASEES, on a daily basis if necessary. I, on behalf of myself and the PARTICIPANT, hereby agree, represent, and warrant that the PARTICIPANT shall not visit or utilize the facilities, services, and programs of the RELEASEES if the PARTICIPANT: (i) experiences symptoms of COVID-19, including, without limitation, fever, cough or shortness of breath, or (ii) has a suspected or diagnosed/confirmed case of COVID-19. I, on behalf of myself and the PARTICIPANT, agree to notify the RELEASEES immediately if I believe that any of the foregoing access/use restrictions may apply.
I, on behalf of myself and the PARTICIPANT, further understand and acknowledge that any of the risks discussed herein and others, not specifically named, may cause injury or injuries that may be categorized as minor, serious, or catastrophic. Minor injuries are common and include, but are not limited to: scrapes, bruises, sprains, strains, muscle tension and soreness, nausea, cuts, sunburn, abrasions, grazes, lacerations, and contusions. Serious injuries are less common, but do sometimes occur. They include but are not limited to property loss or damage, broken bones, fractures, torn or strained ligaments and tendons, concussions, exposure, dehydration, heat exhaustion and other heat-related illnesses, mental stress or exhaustion, infection, vomiting, dislocations, loss of consciousness, dizziness, fainting, seizures, and neurological disorders/pain. Catastrophic injuries are rare; however, participants should be aware of the possibility. These injuries can include, but are not limited to, permanent disabilities, stroke, single or multiple organ failure or dysfunction, physical damage to organs, spinal injuries, paralysis, heart attack, heart failure, blood cell disorder, brain swelling, and even death.
I, on behalf of myself and the PARTICIPANT, also understand that it is my responsibility to consult with the PARTICIPANT’s personal physician prior to my participation in MOUNTAIN BIKING to ensure that such participation will not pose any unusual risks to the PARTICIPANT’s health and well-being.
I, on behalf of myself and the PARTICIPANT, understand fully the inherent and COVID-19 related risks of the PARTICIPANT’s participation in MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain and assert that the PARTICIPANT is willingly and voluntarily participating in such MOUNTAIN BIKING. I have read the preceding paragraphs and acknowledge that: (i) I, on behalf of myself and the PARTICIPANT, understand the demands of MOUNTAIN BIKING relative to my physical condition; and (ii) I, on behalf of myself and the PARTICIPANT, appreciate the potential impact of the types of injuries that may result from MOUNTAIN BIKING. I, on behalf of myself and the PARTICIPANT, hereby assert that we knowingly assume all of the inherent risks and COVID-19 related risks of MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain and take full responsibility for any and all damages, liabilities, losses, or expenses that the PARTICIPANT may incur as a result of participating in MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain.
DATE: October 31, 2020
III. RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT:
In consideration of the PARTICIPANT’S participation in MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain and the PARTICIPANT’S use of the RECREATION AREAS and/or use of RELEASEES’ equipment, services and facilities, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I, on behalf of myself and the PARTICIPANT, hereby agree as follows:
- To waive, release, covenant not to sue, and discharge any and all Claims that I and the PARTICIPANT now have or may in the future have against the RELEASEES and to release the RELEASEES from any and all Claims and liability arising from the inherent risks and COVID-19 related risks discussed herein, EVEN THAT WHICH IS DUE TO THE NEGLIGENCE OF THE RELEASEES, for any loss, damage, expense or injury including death, that the PARTICIPANT may suffer or that the PARTICIPANT’s next of kin may suffer as a result of the PARTICIPANT’S participation in activities, including but not limited to MOUNTAIN BIKING, on the premises of Highland Mountain Bike Park and Gravity Mountain, or any CAMP PROGRAMS, DUE TO ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF RELEASEES, NEGLIGENCE OF OTHER MOUNTAIN BIKERS, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, ON THE PART OF THE RELEASEES. This release applies to: (i) any and all Claims related to personal injury (including death) from incidents or illnesses arising from MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain; (ii) any and all of Claims relating to MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain, including but not limited to, damaged, lost or stolen property, and both contractual and non-contractual claims; and (iii) any Claims based on the actions, omissions, or negligence of RELEASEES, their employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after use of RELEASEES’ facilities or participation in CAMP PROGRAMS.
- To hold harmless, indemnify and defend the RELEASEES from and against any and all Claims and liability for any property damage, personal injury or death to any third party resulting from the PARTICIPANT’S participation in MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain or other activities within the RECREATION AREA.
IV. MISCELLANEOUS OTHER AGREEMENTS:
- This agreement and any rights, duties and obligations as between the parties to this agreement shall be governed by and interpreted solely in accordance with the laws of the State of New Hampshire without regard to the conflicts of law principles thereof. Any litigation involving the parties to this agreement shall be brought solely within the State of New Hampshire and shall be within the exclusive jurisdiction of the Courts of the State of New Hampshire.
- I, on behalf of myself and the PARTICIPANT, understand and agree that this agreement is intended to be as broad and inclusive as is permitted by law in the State of New Hampshire and that if any provision shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this agreement and does not affect the validity and enforceability of any remaining provisions.
- I, on behalf of myself and the PARTICIPANT, affirm that this agreement supersedes any and all previous oral or written promises or agreements. I, on behalf of myself and the PARTICIPANT, understand that this is the entire agreement between us and RELEASEES and cannot be modified or changed in any way by representations or statements by any agent or employee of RELEASEES. Rather, this agreement may only be amended by a written document duly executed by all parties.
- I, on behalf of myself and the PARTICIPANT, represent and warrant that the PARTICIPANT is in good health and in proper physical condition to safely participate in MOUNTAIN BIKING. I, on behalf of myself and the PARTICIPANT, certify that the PARTICIPANT has no known physical or mental conditions that would affect the PARTICIPANT’s ability to safely participate in MOUNTAIN BIKING, or that would result in such participation creating a risk of danger to the PARTICIPANT or to others. I represent and warrant that I am in full command of my faculties and am not under the influence of alcohol or drugs. I, on behalf of myself and the PARTICIPANT, assert that the PARTICIPANT has not been advised or cautioned against participating in MOUNTAIN BIKING by a medical professional. In the event of an injury to the PARTICIPANT that renders him/her unconscious or incapable of making a medical decision, I authorize appropriate personnel of the RELEASEES and/or emergency medical personnel to make emergency medical decisions on the PARTICIPANT’S behalf.
- I, on behalf of myself and the PARTICIPANT, agree that RELEASEES may record and photograph the PARTICIPANT and record his/her voice during and in connection with such MOUNTAIN BIKING at Highland Mountain Bike Park and Gravity Mountain. I, on behalf of myself and the PARTICIPANT, agree that RELEASEES shall be the exclusive owner of all copyright and other rights in and to any such taping, photography and recording and shall have the right forever and throughout the world to use the results of such taping, photography and recording in any medium in the advertising and promotion of their products and/or services.
I, ON BEHALF OF MYSELF AND THE PARTICIPANT, CONFIRM THAT I HAVE READ AND UNDERSTOOD THIS AGREEMENT PRIOR TO SIGNING IT, AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I, THE PARTICIPANT OR OUR RESPECTIVE HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST THE RELEASEES. I, on behalf of myself and the PARTICIPANT, further acknowledge that I am freely and voluntarily signing the agreement and the PARTICPANT is freely and voluntarily participating in MOUNTAIN BIKNIG, and intend my signature to be a complete and unconditional release of all liability against the RELEASEES on behalf of myself and the PARTICIPANT,.
I HEREBY ACKNOWLEDGES THAT I AM THE LEGAL GUARDIAN OF THE PARTICIPANT WHOSE NAME APPEARS HEREIN, THAT I HAVE READ THE FOREGOING AGREEMENT, AND THAT BY SIGNING THIS AGREEMENT ON BEHALF OF THE PARTICIPANT NAMED BELOW AND MYSELF, THE PARTICIPANT NAMED BELOW AND I AGREE TO BE BOUND BY ALL OF THE TERMS HEREIN.
Signed this day of October 31, 2020.
I acknowledge and certify that I am the parent or legal guardian of the PARTICIPANT, have read this RELEASE OF LIABILITY, Waiver of Claims and Indemnity Agreement and fully understand its terms.
I have watched the Highland Mountain Bike Park awareness video and I have a clear understanding of the type of terrain my child or ward (the PARTICIPANT) is likely to encounter while riding at the park.