WARNING: YOU ARE A VOLUNTEER PASSENGER. AVIATION, HOT AIR BALLOONING, AND ALL RELATED ACTIVITIES ARE DANGEROUS AND CAN CAUSE MAJOR PERMANENT INJURY, PAIN, SUFFERING OR DEATH.
In consideration for being permitted to participate in hot air balloon flight and its associated activites, which includes but is not necessarily limited to hot air balloon flight, ground handling, ground transportation, ground instruction, stowing equipment post-landing, and other related activities (hereinafter collectively referred to as "activities covered by this Agreement") conducted by Air Carriage over Texas,LLC, I, hereby agree as follows:
THIS IS A RELEASE OF YOUR RIGHTS, READ CAREFULLY AND UNDERSTAND ITS PROVISIONS BEFORE SIGNING
- Release of Liability. I hereby release and discharge the following parties (hereinafter referred to as "Releasees"), from any and all liability, claims, demands, or causes of action whatsoever arising out of any damage, loss or injury to me or my property, or my death, while participating in any of the activities covered by this Agreement, whether resulting from the negligence or other fault, either active or passive, of any of the Releasees, or from any other cause: Arthur V. Moller, Air Carriage Over Texas,LLC, and their instructors, pilots, riggers, ground transportation drivers and motor vehicle owners, ground handlers, ground crew, flight crew, maintenance crew, officers, directors, agents, employees, members, managers, and independent contractors as well as the owners and manufactures of the balloon (including the envelop, basket, burners, propane equipment, and all other equipment utilized for the direct or incidental purpose of balloon flight), the owners and operators of all land and airports utilized by the Releasees for the purpose of take-off, landing, or other associated activities, and their affiliates, officers, agents, officials, employees, and independent contractors.
- Assumption of Risk. I know and understand the scope, nature and extent of the risks involved in the activities covered by this Agreement and that some dangers cannot be foreseen. I understand that these risks include, but are not limited to: hard take-off, hard landing, changing weather conditions, equipment malfunction or failure to function, defective design or manufacture of equipment, improper or negligent balloon rigging or assembly, improper or negligent operation or use of the balloon or other equipment, carelessness or negligence of pilots, air crew, and/or ground crew, and improper or negligent instruction or supervision by Releasees. I voluntarily, freely, and expressly choose to incur all risks associated with the activities covered by this Agreement, understanding that those risks may include bodily and personal injury, damage to property, severe bodily and personal injury, disfigurement or death. I voluntarily and freely choose to incur such risks and take responsibility, including legal responsibility, therefore.
- Agreement Not to Sue. I agree never to institute any lawsuit or cause of action against any of the Releasees, or to initiate or to assist in the prosecution of any claim for damages against the Releasees which I may have by reasons of injury to my person or property, or my death, arising from the activities covered by this Agreement, whether caused by the negligence or fault, active or passive, of any of the Releasees, or from any other cause. I further agree that my heirs, executors, administrators, personal representative, or any on else claiming on my behalf, shall be bound by my agreement not to sue. I agree that Releasees shall be entitled to recover attorney's fees and costs incurred in the defense of any lawsuit brought by me or by anyone on my behalf.
- Indemnity Against Third Party Claims. I agree to indemnify, save, and hold harmless Releasees from any and all losses, claims, actions, or proceedings of every kind and character, including attorney fees and expenses, which may be presented or initiated by any other person or organization and which arise directly or indirectly from my participation in the activities covered by this Agreement, whether resulting from the negligence or other fault, either active or passive, of any of the Releasees, or from any other cause.
- Applicable Law/Waiver of Jury Trial/Venue. I agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of New Mexico or any other jurisdiction). I further agree that New Mexico law shall govern any dispute arising from the activities covered by this Agreement. SHOULD THIS AGREEMENT BE BREACHED AND SUIT IS BROUGHT AGAINST ANY OF THE RELEASEES, THEN 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, OR THE TRANSACTIONS CONTEMPLATED HEREBY. Any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the Texas State Judicial Court, Hays Co. Texas.
- Binding Arbitration of Disputes. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules and Mediation Procedures ("Consumer Rules"). There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent[s] of the request for arbitration or in default thereof appointed by the AAA in accordance with its Consumer Rules. The seat or place of arbitration shall be the City of San Marcos, Hays County, State of Texas. Except as may be required by law, neither a party nor the arbitrator[s] may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The award rendered by the arbitrator shall be final, non-reviewable, non-appealable, and binding on the parties and may be entered and enforced in any United States District Court or state court located in the State of Colorado. Judgment on the award shall be final and non-appealable.
- Limitation of Warranty. The Releasees warrant that the equipment provided by Air Carriage over Texas, LLC for balloon flight and its associated activities has been previously used for balloon flight activities. This warranty is the only warranty made and is made in lieu of any other warranties, express or implied, including but not limited to, warranty of merchantability or fitness for a particular purpose.
- Severability of Provisions. I agree that this Agreement is intended to be as broad and inclusive as permitted by the laws of the State of Texas and if any portions of this Agreement are found to be unenforceable or against public policy, that only those portions shall fail, and I agree to be bound to the remainder of the Agreement.
- Continuation of Obligations. I agree that the terms and conditions of this Agreement shall continue in full force and effect now and in the future at all times during which I participate, either directly or indirectly, in the activities covered by this Agreement, and shall be binding upon my heirs, executors, administrators, personal representatives, and/or anyone else claiming on by behalf. This Agreement supercedes and replaces any prior such Agreement between the Releasees and myself and shall remain in full force and effect until such time as I unequivocally revoke the same by submitting written notice of such revocation to Air Carriage over Texas, LLC via Certified U.S. Mail, Return Receipt Requested
- Acknowledgement of Waiver of Rights. I am Eighteen (18) years of age or older and mentally competent to enter into this Agreement. I understand that by signing this document, I am giving up important legal rights, and it is my intent to do so.
- Physical Condition. I acknowledge and agree that I will not participate in activities covered by this Agreement in circumstances where I am under the influence of alcohol, drugs, or mental or physical disease or where I have a physical limitation, ailment, or other condition which would render me less mentally or physically competent to participate in the activities covered by this Agreement.
- Entire Agreement. I understand this Agreement contains the entire agreement between the parties to this Agreement and that the terms of this Agreement are contractual and not a mere recital.
- Photo and Video Release. For valuable consideration received, I hereby grant Air Carriage over Texas, LLC (hereinafter "Photographer") and its legal representatives and assigns the irrevocable and unrestricted right to use and publish photographs or video images of me, or in which I may be included, for editorial, trade, advertising and any other purpose and in any manner and medium, to alter the same without restriction, and to copyright the same.
- No Refunds. Except as expressly provided herein, all payments under this Agreement will be irrevocable and non-refundable. Credits are applicable for use of the Service and are not convertible into cash or any type of refund.
- Equipment. I agree that if I lose or damage any of Air Carriage over Texas, LLC's equipment, I am responsible for the replacement cost of the item lost or damaged
- Right to refuse service. In accordance with Federal Civil Rights Act of 1964, we reserve the right to refuse service to any person.
I have read this entire Agreement. I fully understand the entire Agreement and acknowledge that I have had the opportunity to consult with an attorney of my choosing if I so desire, and I agree to be legally bound by this Agreement. I understand that once I board the aircraft, there are no refunds or exchanges.
By way of acceptance of this agreement, the Participant has affixed his or her signature this day: January 19, 2021