This Waiver and Release of Liability, Waiver of Claims and Assumption of Risk Agreement (this “Agreement”), effective as of the date of the Passenger’s signature below (the “Effective Date”), is made by and between Team O’Neill LTD dba O’Neill Yacht Charters (“OYC”) and either the Passenger specified below or, where the Passenger is a minor, the parent or legal guardian of and on behalf of the Passenger (in each case, “Passenger”). OYC and Passenger are sometimes referred to herein, collectively, as the “Parties” and, individually, as a “Party.” Read this Agreement carefully. By signing this Agreement, Passenger is indicating Passenger’s express acceptance of the following terms and conditions: 1. OYC has agreed to the transportation of Passenger on a sail excursion (the “Excursion”) aboard a yacht owned and operated by OYC (the “Yacht”). 2. Passenger is riding on the Yacht voluntarily, of Passenger’s own free choosing and will and after careful consideration of the risks associated with riding on the Yacht, which can result in property damage, personal injury, or death. Passenger expressly assumes these risks. The Yacht is not equipped with any medical equipment and Passenger understands that there is no obligation for OYC to provide or arrange for medical assistance to Passenger on the Yacht. 3. Passenger understands and acknowledges that the COVID-19 virus outbreak was declared a global pandemic by the World Health Organization because of the rate at which the virus spreads. Passenger further understands and acknowledges that COVID-19 has a long incubation period during which carriers of the virus may not show symptoms and still be highly contagious, and that due to the frequency of visits of prior passengers, Passenger has an elevated risk of contracting the virus simply by participating in the Excursion. Passenger understands and acknowledges that it is releasing OYC from any liability or claim related to Passenger’s exposure to, and contracting of, COVID-19 during any activity related the Excursion. 4. Passenger freely waives and releases OYC and all of its officers, directors, members, subsidiaries, affiliated organizations and entities, agents, volunteers, subcontractors, and employees (collectively, the “O’Neill Representatives”) with the understanding that the right to legal recourse against the O’Neill Representatives is knowingly given up in return for allowing Passenger’s participation in the Excursion. 5. PASSENGER HEREBY FREELY AGREES TO ASSUME AND ACCEPT ANY AND ALL KNOWN AND UNKNOWN RISKS OF INJURY OR DEATH AND OTHER DANGERS ARISING IN CONNECTION WITH THE EXCURSION. 6. In consideration for Passenger’s participation on the Excursion, Passenger hereby agrees to the terms set forth below: a. TO WAIVE ANY AND ALL CLAIMS that Passenger has or may in the future have against the O’Neill Representatives; b. TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS the O’Neill Representatives from any and all liability for any loss, expense or damage (including economic damages, non-economic damages, special damages, incidental and consequential damages and property damage, personal injury, and death) that Passenger may suffer, or that Passenger’s next of kin or successor may suffer, in connection with the Excursion due to any cause whatsoever, including negligence or breach of contract, error or omission on the part of any of the O’Neill Representatives. It is the intent of this Agreement to protect each of the O’Neill Representatives from lawsuits, claims and demands and to otherwise hold the O’Neill Representatives harmless from lawsuits, claims or demands which in any way relate to, either directly or indirectly, the Excursion even if the claimed damages or injuries are not immediately apparent; and c. TO PAY ALL COSTS AND LEGAL EXPENSES expended in defending against any such claim or any lawsuit as well as any sums paid as a result of any judgment or settlement. 7. Passenger agrees that, in the event of Passenger’s death or incapacity, this Agreement shall be effective and binding upon Passenger’s successors, heirs, spouse, next of kin, executors, administrators, assigns and representatives. This Agreement applies not only to the Passenger but also to each individual accompanying the Passenger, each of whom shall be considered a Passenger for the purposes of this Agreement. If any of the Passengers are under the age of 18 at the time of the Excursion, the signature of the parent (or legal guardian) of such minor Passenger on behalf of such minor Passenger shall be binding on such parent (or legal guardian) and such minor Passenger. 8. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be first submitted for mediation. If the Parties cannot agree on a mediator within 15 days after either Party gives the other Party the name of a proposed mediator, then upon the petition of either Party, a mediator, who shall be a retired Article 3 United States judge or justice, shall be appointed by JAMS (Judicial Arbitration and Mediation Service) in Santa Cruz, California. The Parties will share the expense of a mediator. If mediation is not successful after a good-faith effort by both Parties, then venue for any subsequent litigation shall be in accordance with Section 8 hereof. 9. Passenger agrees and acknowledges that this Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Passenger further agrees and acknowledges that the venue for litigation shall be in either the Superior Court located in Santa Cruz, California or in the Federal Courts of the Northern District of California. 10. Each of the Parties hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any action directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement. IN WITNESS WHEREOF, OYC and the Passenger have caused this Agreement to be executed as of the Effective Date. Effective Date: October 25, 2024 |
