Assumption of Risk, Waiver of Liability, and Indemnification Agreement
The Marco Island Bike Rentals, LLC and Marco island Kayak Rentals, LLC (hereafter jointly referred to as MIR&T for Marco Island Rentals & Tours) are two rental and tour companies that rent a variety of recreational equipment (including, but not limited to, paddle boards, kayaks, golf carts, bicycles, bikes with electronic assist – ebikes, and trailers & baby seats that attach to bikes). In addition, MIR&T offers WaveRunner tours.
Participation in MIR&T activities can provide many benefits for clients of all ages – including pleasure, relaxation, opportunity to compete, opportunity to challenge oneself, improved physical fitness, and more energy. A USER is defined as 1- the party renting the equipment or purchasing the service, 2- anyone using the rented equipment, and 3- anyone participating in a tour. While there are many benefits associated with MIR&T activities, MIR&T feels it is important that the USER understands that all physical activities include some inherent risks of injury. These inherent risks are risks that cannot be eliminated without changing the very nature of the activity – usually removing the fun, excitement, and challenge that attracts participants.
Things I NEED to Know! MIR&T activities are varied and each activity has its own inherent risks. The following list of inherent risks is representative and is not intended to include all inherent risks. Water-Related risks include drowning, wildlife in the water, swallowing water, extreme heat, lightning, being struck by a paddle or other implement, striking a submerged object, sudden changes in weather, and collision with other USERs, Tour-Related risks include engine failure which might cause unexpected delays or collisions, erratic or unexpected actions by other tour participants, sudden change in weather conditions, boats or other traffic on the water, falling overboard, and drowning. Equipment-Related risks (including but not limited to) bikes, ebikes, and golf carts) include unexpected equipment failure, flat tire, falls from bikes, collision with vehicles, natural hazards on bike paths (e.g., holes, limbs, trees, and obstructions), and wildlife (e.g., snakes, spiders, alligators). Disease Risks include exposure to and contraction of COVID-19, influenza, and other communicable diseases. Weather-Related risks include lightning, thunder storms, and high temperatures). User-Related risks include another user uses poor judgment, behaves erratically or negligently, or carelessly causes a collision or other problem; user over-estimates his or her ability, failure to follow directions, colliding with other participant or stationary objects; over-exertion; and failure to maintain control of a bike, ebike, cart, or WaveRunner. Staff-Related Risks include failure to warn of a non-apparent inherent risk; management misjudgment of the ability or judgment of a staff member; inadvertent distraction of supervising staff; judgment error by a staff member (e.g., misjudging the condition of a bike or other equipment; misjudging clients understanding of vehicle; failure to identify or observe and put a stop to dangerous misbehavior or horseplay immediately; and failure to recognize approaching dangerous weather or conditions).
Further, MIR&T feels that it is important that the USER understands the three types of injuries that can occur while using equipment or on a tour. First is the common Minor Injury. This type includes, but is not limited to, muscle strains and sprains, headaches, bruises, sunburn, and abrasions. The second type of injury is the Serious Injury. Examples of serious injuries are broken bones, ligament and joint injuries, concussions, and eye injury. These are rare, but do occasionally occur. The third type of injury is the Catastrophic Injury. Some examples of catastrophic injury are drowning, brain injury, paralysis, heart attack, and death. Even though the likelihood of such an injury is very remote, MIR&T feels that the USER should be aware of all possibilities.
Assumption of Inherent Risks: I, the USER, have read the above paragraphs and know that activities using MIR&T equipment contain inherent risks which vary with the activity. I understand the demands of those activities relative to my physical condition and skill level, and I appreciate the types of injuries that may occur as a result of activities using MIR&T and their potential impact on my well-being and lifestyle. I, the USER, hereby assert that my participation is voluntary and that I knowingly assume all inherent risks.
Waiver of Liability for Ordinary Negligence: In consideration of permission to use the MIR&T equipment and services, today and on all future dates, I, the ADULT USER, on behalf of myself, my spouse, my heirs, my parents or guardians, personal representatives, assigns, and anyone acting on my behalf [hereafter referred to as Releasing Parties] do hereby release, waive, discharge, and covenant not to sueMIR&T, its owners, affiliates, employees, volunteers, independent contractors, equipment providers, property owners of premises used including Rose Marina, and agents [hereafter referred to as Protected Parties] from liability from any and all claims arising from the ordinary negligence of MIR&T or the other Protected Parties.
This agreement applies to 1) personal injury (including death) from incidents or illnesses (including, but not limited to, COVID-19) arising from my participation in MIR&T activities (including, but not limited to instruction, use of equipment, tours, or observation of MIR&T activities).
Indemnification Agreement: I, the ADULT USER, agree to hold harmless, defend, and indemnifyMIR&T and Protected Parties (that is, defend and pay any judgment and costs, including investigation costs, attorney’s fees and related expenses) from any and all claims of the Releasing Parties arising from my injury, death, or loss due to participation 1) with MIR&T equipment or 3) on MIR&T tours including claims arising from the inherent risks of MIR&T activities and those arising from the ordinary negligence of MIR&T or Protected Parties.
I further agree to hold harmless, defend, and indemnifyMIR&T and Protected Parties (that is, defend and pay any judgment and costs, including investigation costs and attorney’s fees) against any and all claims of co-participants, rescuers, and others arising from my conduct or actions in the course of use of MIR&T equipment or services.
1) I, the ADULT USER, confirm that this agreement supersedes any and all previous oral or written promises or agreements. I understand that this liability agreement cannot be modified or changed in any way by representations or statements by any agent or employee of MIR&T.
2) I further expressly agree that the foregoing Assumption of Risk, Waiver of Liability, and Indemnification Agreement is intended to be as broad and inclusive as is permitted by the laws of the State of Florida and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
3) I also understand that if any legal action is brought, the appropriate trial court for Collier County or the United States District Court for the Middle District of Florida in Fort Meyers has the sole and exclusive jurisdiction and that only the substantive laws of the State of Florida shall apply.
Waiver of Jury Trial
This is a waiver of my constitutional right to a trial by jury for any and all causes of action arising from use of MIR&T equipment, from participation in MIR&T tours, or regarding this document. I knowingly and voluntarily agree that any such dispute will be resolved by a bench trial (i.e., trial by judge).
Agreements, Assertions, and Authorizations: I, the ADULT USER, on behalf of myself and my child:
have no health problems that would make participation in MIR&T activities, tours, or lessons unwise.
possess a sufficient level of skill and physical fitness for safe participation in MIR&T activities, tours, or lessons.
understand that tours may take place far from sources of emergency care.
authorize MIR&T to administer emergency first aid and CPR (if available) if deemed necessary by MIR&T.
authorize MIR&T to secure emergency medical care or transportation (i.e., EMS) if deemed necessary by MIR&T and I agree to assume all costs of emergency medical care and transportation.
acknowledge that MIR&T may need to end my participation if I present a danger to myself or others.
Agree the MIR&T has permission to use the images of the Adult User and/or the Minor User in advertising or promotional media, brochures, and videos.
Acceptance by Adult USER
Acknowledgment of Understanding: I, the ADULT USER, have read this Agreement and understand that I am giving up substantial rights, including my right to sue for damages in the event of my death, injury, or loss. I, the ADULT USER, acknowledge that I am voluntarily signing this agreement, and intend my signature to be a complete release of all liability, including that 1) due to inherent risks of MIR&Tactivities, rental equipment usage, and tours, and that 2) due to the ordinary negligence by the Protected Parties, to the greatest extent allowed by law of the State of Florida.
Parent/Legal Guardian of Minor USER
Waiver of Liabilty for Injury or Loss
Resulting from the Inherent Risks
NOTICE TO THE MINOR CHILD’S
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 MIR&T USES 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 MIR&T 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 MIR&T HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
I, the Parent/Legal Guardian of the minor(s) listed below, hereby grant my minor child permission to participate in all MIR&T-related Activities and use MIR&T equipment. I realize that I am agreeing to let my child(ren) engage in a potentially dangerous activity.
Further, I fully understand the inherent risks of MIR&T–related activities and realize that I, for today and on all future dates, am giving up my child(ren)’s right, my right, and my spouse’s right to recover by lawsuit from MIR&T for any loss or personal injury, including death, to my child(ren) or any property damage that results from the risks that are a natural part of the activity. I intend my signature on this Assumption of Risk, Waiver of Liability, and Indemnification Agreement to be a complete release of all liability arising from the inherent risks of MIR&T activities to the greatest extent allowed by laws of the State of Florida.