GONE SURFING HAWAII CORP., a Hawai‘i corporation, doing business as "Gone Surfing Hawaii" ("GSH") RELEASE OF LIABILITY, WAIVER, COVENANT NOT TO SUE, INDEMNITY, DEFENSE, AND ASSUMPTION OF RISK AGREEMENT ("AGREEMENT") CAUTION: THIS AGREEMENT IS A LEGAL DOCUMENT; IT IS A BINDING CONTRACT BETWEEN THE PARTIES SIGNING IT BELOW. IF YOU SIGN THIS AGREEMENT, YOU GIVE UP IMPORTANT LEGAL RIGHTS. YOUR SIGNATURE BELOW IS YOUR ACKNOWLEDGMENT OF ITS CONTENTS. DO NOT SIGN THIS AGREEMENT WITHOUT FIRST READING ALL OF IT, CAREFULLY. DO NOT SIGN IT UNLESS YOU FULLY UNDERSTAND ITS CONTENTS, AND YOU AGREE TO BE BOUND BY ITS TERMS. I am an adult (or a minor on whose behalf a parent or legal guardian is signing this Agreement) (hereinafter “I” or “me” or "my" or "myself"). GSH has arranged for me to: (a) rent or use a surfboard (or surfboards) from GSH, (b) take a surfing class or surfing lessons from GSH, (c) surf with GSH, or (d) any combination or repetition of any activity in (a) through (c), or any other activity sponsored by GSH This Agreement refers to all of (a) through (d) together as the "Surfing Activities" and each alone as a "Surfing Activity." Any person seeking to participate in any Surfing Activity is required to read this Agreement and sign it (if acceptable), thereby agreeing to all its terms, before such person has any right so to participate. This Agreement may refer to the participant (or his or her parent or legal guardian, as applicable) and GSH together as the “Parties,” and each alone as a “Party.” For and in consideration of the utility, privilege, and enjoyment of GSH allowing me to participate in any Surfing Activity, and for other valuable consideration the receipt of which I hereby acknowledge, and as an express material condition to my ability to participate in any such Surfing Activity, I understand, acknowledge, represent, covenant, and agree as follows: 1. Risk Factors. Open water sports in and around surf are dangerous outdoor activities, in an uncontrolled natural environment with inherent risks, dangers, and hazards (all together, "Risks"). Ocean activities in general, and in surf specifically, involve such Risks, which can be the cause of injury, illness, death, or other damages to me or to others. All forms of surfing are dangerous and can result in major or permanent injury, pain and suffering, or death. Such Risks, when associated with surfing and surf lessons cannot be eliminated, altered, or controlled. The Surfing Activities will take place in an uncontrolled, natural environment, with such Risks, where serious accidents and property damage can and do occur, and participants can and do die or sustain serious injuries. Because of such Risks, I may damage my belongings, get hurt, get injured, become ill, drown, or even die. The Risks include: (1) use and operation of surfboards, impact of collision with surfboards (of any part thereof including the fins and other attachments, loss of control of the surfboard or other equipment, malfunction of the surfboard or other equipment, falls from the surfboard or other equipment, collision with other Surf Activity participants, equipment, other surfboards, dangerous rocks, reef, driftwood, logs, floating objects or debris, and any other man made or natural obstacles, whether obvious, apparent, or not, and other hazards and obstructions, whether marked or unmarked in the area chosen by GSH to conduct the Surfing Activities; (2) impact of collision with swimmers, other surfers or their surfboards, body surfers, body boarders, whether or not caused by the negligence of such swimmers, surfers, body surfers, or body boarders; (3) impact to the beachhead, or, as the case may be, the ocean floor; (4) my lack of ability to swim in dangerous ocean conditions, as the case may be, and the prevailing condition of the surf, and undertow and tide (including constant or shifting riptides); (5) judgment, decision-making, and conduct of GSH staff, including negligence on the part of GSH or its instructors (except for acts of wanton or gross negligence); (6) submersion in water, or drowning; (7) encounters with sea mammals, other marine life (including sharks and moray eels), plant life, rocks, and insects; (8) exposure to outdoor ocean environment, bacteria, or microbes (including ear infections caused by the water); (9) extreme temperatures (including those resulting in heatstroke), sun (including causing sunburn); (10) changing and inclement weather conditions (including storms, high wind, high waves, and lightning); (11) skin irritations or abrasions caused by the use of surfing equipment or swimwear (including rashguards or wetsuits); (12) assistance in lifting or carrying surfing equipment; (13) traveling to the surfing area, including possible transportation provided by GSH and hazards involved in reaching the shoreline by foot; (14) skin irritations or abrasions caused by the use of swimming wear, rashguards, or wetsuits, if any (15) rescue-related injuries; and (16) unavailability of immediate and appropriate medical attention in case of injury. The Risks also include negligence on the part of other participants in the Surfing Activities; and negligence on the part of the Releasees (defined in Section 4 below), including the failure on the part of the Releasees to safeguard or protect me from the Risks of participating in the Surfing Activities. The Risks could result in injury and harm to me, including cuts (or lacerations), bruises, abrasions, and concussions; sprains, strains, broken bones, paralysis, even death; exhaustion, dehydration, and sun burn; exposure to poisonous or carnivorous sea creatures; and submersion and accidental drowning. All of the potential and significant Risks, and possible tragic or fatal results that may occur from them, cannot be expressed. The above list of Risks therefore is not meant to be complete or exhaustive; other unforeseen and unanticipated Risks, known or unknown, also may exist and result in damage, injury, illness, disease, or death. 2. Assumption of Risks. I (or as the parent or legal guardian of the minor participant, as applicable) am fully aware that participating in the Surfing Activities provided by Releasees (defined in Section 4) is inherently dangerous and are extremely high risk and have unknown hazards that the Releasees cannot fully account for connected with the venue(s), the ocean, the land, and participation in the Surfing Activities. There may be Risks unknown to me connected to participating in the Surfing Activities, yet I hereby voluntarily elect to participate in the Surfing Activities, and to engage in Surfing Activities knowing that conditions may be hazardous, or may become hazardous or dangerous to me and my property at any time and is out of control of the Releasees. I voluntarily assume full responsibility for any risks of loss, property damage, or personal injury, including death and paralysis that may be sustained by me, or any loss or damage to property owned by me, as a result of my being a participant in the Surfing Activity, whether caused by the negligence of Releasees or otherwise. I willingly and voluntarily have chosen to participate in the Surf Activities (or if the individual participating in the Surf Activities is a minor, I have, as the minor’s parent or legal guardian, consented to such minor participating in such Surf Activities). I willingly and voluntarily assume all Risks associated with the Surfing Activities, including those described in Section 1, in all phases of the Surfing Activities, from initial training until the conclusion of the class, lesson, or equipment rental period. Without limiting the general scope of the preceding language of this Section 2, despite my understanding of the Risks described in Section 1, I, individually (or as the parent or legal guardian of the minor participant, as applicable) agree to waive, release, discharge, covenant not to sue the Released Parties (defined in Section 4) as set forth in Section 4, and I agree to hold harmless, defend, and indemnify the Released Parties as set forth in Section 5, for any damage or injury arising out of my (or the minor child’s, as applicable) participation in the Surfing Activities, regardless of the cause, including negligence by the Releasees or others. 3. Acknowledgement of Policies and Procedures. I have read, know, and agree to all the rules, regulations, policies, and safety procedures of GSH (all, "Rules") relating to my participation in the Surfing Activities. The safe and proper use of all equipment (including surf boards) or participation in the Surfing Activities depends upon my carefully following the Rules. I will at all times comply with and abide by the Rules. I also will listen to and follow all instructions of GSH instructors and staff. GSH reserves the right to revoke or terminate my participation in the Surfing Activities for any violations of the Rules. If I observe any hazards during my participation in the Surf Activities, it is my responsibility to bring such hazard to the attention of the nearest GSH instructor or staff immediately, and to remove myself from participating. 4. Waiver, Release, and Covenant Not to Sue. My participation in the Surfing Activities is entirely at my own risk, and I agree to the maximum extent permitted by law to waive, release, and forever discharge GSH from all Claims that I may have or may have had but for this Section 4 arising from or in connection with my participation in the Surfing Activities. Without limiting the general scope of the preceding sentence, I hereby fully and forever waive, release, discharge, and covenant not to sue: (a) GSH; (b) GSH's members or owners; (c) GSH's staff, instructors, or employees; (d) GSH's agents (including drivers), volunteers, and independent contractors; (e) GSH's subsidiaries, affiliates, associates, or related entities; (f) GSH's administrators, directors, or officers; (g) other participants in the Surfing Activities; (h) third-party vendors and suppliers, sponsors, and advertisers; (i) the owners and lessees of the premises upon which the Surfing Activities and related events take place (all together, the "Releasees," and each alone a "Releasee") from any Claims in any way relating to any Surfing Activities (or other related events) in any way relating to the negligence or alleged negligence of the Releasees; and I further agree not to make any Claim against or sue the Releasees in connection with any of the Surfing Activities (or other related events), for any reason whatsoever. I further agree not to make or bring any Claim against any Releasees, or sue any Releasees, for any injuries, death, or property damages relating to any Surfing Activities (or other related events), even if such injury, death, or damage is caused to me or my property due to the ordinary negligence of any Releasees, the dangerous condition of any property upon which any Surfing Activities (or other related events) may take place, or as a result of any other cause whatsoever. As used in any provision of this Agreement, (a) "Releasees" also include any lifeguards, first responders, firemen, EMTs, “good Samaritans,” and any other person or entity who gives aid to me in a medical emergency related to the Surfing Activities; and (b) “Claims” mean any and all claims (of any kind), liabilities, losses, damages, penalties, fines, obligations, judgments, governmental actions, actions, causes of action (whether in tort or contract, law or equity, or otherwise), demands, administrative proceedings, suits, and other legal proceedings, however arising, including negligence, together with any costs of court, fees, and expenses associated therewith (including costs of investigation, attorney’s fees, expert’s fees, and expenses associated with investigation of claims, testing, assessment). I (or, if participant is a minor, the person signing for the minor participant) represent and warrant that: (a) I am of legal age and have the right to contract in my own name, or, if participant is a minor, I am the parent or legal guardian of the minor child listed below and am authorized to sign documents on his or her behalf; (b) I have read this Agreement, fully understand its terms, understand that I have given up substantial rights by signing it, and I intend this Agreement to be a complete and unconditional release of all liability of the Releasees to the greatest extent allowed by law. 5. Indemnity. I hereby covenant to indemnify and hold harmless any Releasees to the full extent permitted by law in respect of any Claim by any person, including another participant in the Surfing Activities, arising from, related to, as a result of, or in connection with my participation in the Surfing Activities. Without limiting the general scope of the preceding sentence, I further covenant to hold harmless, defend, and indemnify any Releasees from all defense costs, including attorney’s fees (and court costs) incurred in connection with any Claims arising from the Surfing Activities anticipated herein, including those for bodily injury, wrongful death, or property damage, whether caused by or sustained by any minor under 18 years of age on whose behalf I am signing, or which I may have caused to spectators or other third parties, whether negligent or not, in the course of my participation in the Surfing Activities. Without limiting the general scope of the preceding language of this Section 5, I also agree to hold harmless and indemnify the Releasees for any liability for any property damage, loss, expense, or personal injury to any third party resulting from my participation in the Surfing Activities, including all costs of rescue, medical attention, or health care costs rendered to me, or for my benefit as a result of the Surfing Activities. 6. Physical Fitness; Prerequisite Abilities and Skills. I must not and will not participate in the Surfing Activities if I have any injury, disability, medical, or health condition that may increase the risk of me becoming injured, unless I have told GSH about it, and GSH has authorized me to participate in the Surfing Activities beforehand in writing. I represent that I am medically and physically fit and able to participate in the Surfing Activities. I immediately must notify GSH of any change to my fitness and ability to participate in the Surfing Activities. I hereby represent to GSH: (a) I am in good physical and mental health; (b) I am not under the influence of any drugs, alcohol, or other substances that may impair my swimming skills or my ability to take and follow instructions from GSH instructors; (c) I am not pregnant; (d) I am not suffering from any spinal or skeletal defect, hearing, vision or balance impairment, or other physical impairment; (e) I have an adequate level of swimming skills needed to surf; (f) my swimming skills are above those of a novice; (g) I know how to swim in open water, including the ocean; (h) I can swim at least 50 meters (150 feet); (i) I know how to maintain buoyancy in open water; (j) I can maintain my head above water when my feet do not make contact with the bottom for extended periods of time. The foregoing representations on my physical condition are being relied upon by GSH, in GSH's decision to allow me to participate in the Surfing Activities. GSH has the right to refuse to my participation in the Surfing Activities if, in the opinion of GSH, my swimming abilities, health, or the prevailing weather conditions could render it dangerous or unsafe for me to use such Surfing Services. 8. Privacy. I understand that the information I provide in this Agreement is necessary for the operation of the Surfing Activities. The information may be used only for the purposes of GSH and to provide me with information pertaining to the Surfing Activities. GSH will give me access my information, upon my written request to GSH. If I do not provide the information to GSH, then I will not be permitted to participate in the Surfing Activities, unless GSH waives this requirement in writing beforehand. 9. Return of Equipment; Payment for Damages. When I rent or use GSH equipment, I alone am responsible for the condition and whereabouts of such GSH equipment, for the entire rental or use period. I must return all GSH equipment to GSH in the same condition as I received it from GSH. I also must pay GSH for any GSH equipment lost, stolen, or damaged while in my possession or care. I must replace a lost or stolen surfboard at its full value, which is $800 per surfboard. I must pay a surfboard repair fee of $30 per inch (with a maximum limit of $450 for surfboard damage). 10. Use of Images. I hereby grant GSH the right to use film, video, electronic media, or photographic images or records of me or my participation in the Surfing Activities (and other events) for any lawful purpose, including publicity, illustration, advertising, and Web content, without compensation to me. GSH will own all rights to the same, as the sole owner, licensor, and beneficiary. I hereby also authorize GSH to copyright, use, and publish the same, in print or electronically. If I do not wish to grant GSH such rights, then I must let GSH know in writing before the beginning of the Surfing Activities. 11. Representatives. I enter into this Agreement for myself, as well as for my heirs, next of kin, executors, administrators, assigns, dependents, and next of kin. This Agreement is binding upon me and all of them, in the event of my death. By my signing this Agreement, I am affecting the legal rights and liabilities of myself and all of them, in relation to GSH and the other Releasees. 12. Consent for Emergency Treatment. If required, I authorize GSH to arrange medical or hospital treatment (including ambulance transportation) for me. I agree to cover all costs associated with such treatment. I also consent to medical treatment for emergencies that occur during (or related to) my participation in the Surfing Activates, when I am unable to consent to such treatment. The provisions of this Agreement (including Section 4 and Section 5) apply to any treatment that might be provided to me under this Section. However, I understand that GSH is under no obligation to treat me in case of emergency illness, injury, or accident. If emergency medical services become necessary, then the expenses are my sole responsibility and not the responsibility of GSH. Medical Release for parent or legal guardian: I understand that I will be notified in the case of a medical emergency involving my child. In the event that i cannot be reached, I authorize the calling of a doctor or the providing of necessary medical services, including being transferred to a hospital. I understand that GSH, along with the other Releasees, will not be responsible for any medical expenses incurred, but that such expenses will be the responsibility of the participant or his/her parent or legal guardian (for minors). Initial here: (You will also sign below.) 13. Insurance. I am solely responsible for any medical, health, or personal injury costs relating to my participation in the Surfing Activities. I have been strongly encouraged to have a medical physical examination and purchase health insurance before any participation in the Surfing Activities. The “Releasees” do not provide any insurance for “me,” neither medical, disability, completed operations, product liability, nor life insurance for any injury, loss, damage, death, or claim that may result from “my” association within all ”Surfing Activities." I hereby give up all rights and benefits from any insurance policy in which the “Releasees” may be a named insured. So, in the event of “my” injury, disability, damage, death, or loss, everyone identified as a Releasee will suffer no financial, economic, or recoverable loss. 14. Special Waiver. I understand that a GSH instructor will be pushing me or riding with me from behind, and I except that process and absolve the "Releasees” from any claims of inappropriate physical or sexual contact, abuse or harassment. “I” Understand that there is NO insurance coverage for “Me.” 15. Entire Agreement; Waiver; Amendment. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof; this Agreement supersedes all prior or contemporaneous agreements, inducements, communications, representations, or conditions, oral or written, express or implied. Any waiver of a term in this Agreement and any amendment to this Agreement may be made only in a writing signed by an authorized representative of GSH or me (or my parent or legal guardian, as applicable). Any waiver of any breach of this Agreement does not operate as a waiver of any subsequent breaches. All rights or remedies specified for a Party herein are cumulative and in addition to all other rights and remedies of the Party hereunder or under applicable law. 16. Disclaimer of Extra-contractual Representations. Neither GSH nor any other Releasee has made any extra-contractual representations to me about this Agreement or the Surfing Activities. I am relying solely on this Agreement. I therefore disclaim reliance on any extra-contractual statements and extra-contractual omissions; I am not relying on any promise or representation not contained expressly in this Agreement. Without limiting the general scope of the preceding language of this Section 16, in entering into this Agreement, I am not relying on any oral or written representations or statements made by any Releasees with respect to the safety of participating in the Surfing Activities, other than what is expressly set forth in this Agreement. I also disclaim reliance on any inducement or assurance from GSH or any other Releasees of any nature. 17. Governing Law. This Agreement has been (or is deemed to have been) made and delivered in Honolulu, Hawai‘i. Both this Agreement and the transactions contemplated by it are to be governed as to validity, interpretation, construction, effect, and in all other respects by the internal laws of the State of Hawai‘i, without regard to the conflict of laws principles thereof. 18. Venue and Jurisdiction. All actions or proceedings initiated by either Party directly or indirectly arising out of or related to this Agreement must be litigated exclusively and mandatorily in federal or state court in Honolulu, Hawai‘i. Each Party irrevocably and unconditionally submits and consents in advance to such jurisdiction and venue, and each Party also agrees that service of summons and complaint (or other process or papers) may be made by registered or certified mail (return receipt requested, postage prepaid), addressed to the relevant Party at the address set forth below. Each Party irrevocably and unconditionally waives any claim that federal or state court in Honolulu, Hawai‘i is an inconvenient or an improper forum. Each Party covenants that he, she, or it will refrain from making any motion concerning personal jurisdiction, venue, transfer, or convenience of the Parties for an action or proceeding filed in such Hawai‘i courts. If any action or proceeding is filed other than in the such Hawai‘i courts, then it must be moved to such Hawai‘i courts, on motion and at the option of GSH or any other Releasee. 19. Interpretation. The Parties intend for Section 4 and Section 5 to be construed to the broadest extent permitted by law and, to the extent permitted by law, that the scope of each such Section be expanded for the benefit of the Releasees to the extent that, at any time after the date of this Agreement, the law is clarified or changed to permit such a broader construction. Otherwise, This Agreement is to be construed as a whole, according to its fair meaning, and not in favor of or against any Party, regardless of which Party prepared it. The use of word "any" is not to be construed as exclusive; "any" means "any one or more" (and is to be deemed to be all-inclusive). The word “or” is not to be construed as requiring exclusivity; so, "A or B" means A, B, or A and B. The words “include", "includes,” and “including” are to be construed as by way of example, not to imply limitation, and deemed to be followed by “without limitation.” Each gender includes all genders. The singular includes the plural, and the plural the singular, as the context requires. 20. Severability. The purpose of this Agreement is that it will be (a) an enforceable waiver, release, discharge, covenant not to sue as set forth in Section 4, and (b) a covenant to hold harmless, defend, and indemnify as forth in Section 5, for both (a) and (b) as broad and inclusive as fully permitted by law. If any part, portion, or provision of this Agreement is found to be invalid or unenforceable, then the remainder will continue in full force and effect. An invalid part, portion, provision will be modified or partially enforced to the maximum effect permitted by law, to carry out the purpose of the Agreement stated in this Section 20 above. 21. Representation by Counsel. Each Party has been represented by, or had the opportunity to be represented by, independent counsel of its own choosing; it has had the full right and opportunity to consult with its own attorney; to the extent that it desired, if any, it availed itself of that right and opportunity. 22. COVID-19 Waiver. Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19. The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious; it is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments, including the State of Hawai‘i and the City and County of Honolulu, and federal and state health agencies, including the Centers for Disease Control and Prevention and the Hawai‘i Department of Health, recommend social distancing; and they have, in many locations, prohibited the congregation of groups of people. GSH has put in place preventative measures to reduce the spread of COVID-19; however, GSH cannot guarantee that you (or your child(ren), as applicable) will not become infected with COVID-19. Furthermore, attending GSH could increase your risk (and your child(ren)’s risk, as applicable) of contracting COVID-19. By signing this Agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that I (or my child(ren), as applicable) may be exposed to or infected by COVID- 19 by participating in GSH surf lessons and related activities, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. I understand that the risk of becoming exposed to or infected by COVID-19 at GSH may result from the actions, omissions, or negligence of myself and others, including GSH employees, volunteers, and program participants and their families. I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to me (or my child(ren), as applicable) (including personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that I (or my child(ren), as applicable) may experience or incur in connection with my participation (or my child(ren)’s participation) in GSH surf lessons and related activities (“Covid Claims”). On my behalf, and on behalf of my children, as applicable, I hereby release, covenant not to sue, discharge, and hold harmless GSH, its employees, agents, and representatives, of and from the Covid Claims, including all liabilities, claims, actions, damages, costs, or expenses of any kind arising out of or relating thereto. I understand and agree that this release includes any Covid Claims based on the actions, omissions, or negligence of GSH, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any GSH surfing lessons or related activities. 23. NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS AGREEMENT. EACH PARTY COVENANTS NOT TO ELECT A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. I HAVE READ THIS ENTIRE AGREEMENT. I UNDERSTAND IT. I AGREE TO ITS TERMS. I UNDERSTAND THAT BY SIGNING IT I AM AGREEING TO GIVE UP CONSIDERABLE FUTURE LEGAL RIGHTS THAT I (OR THE MINOR ON WHOSE BEHALF I AM SIGNING) MIGHT OTHERWISE HAVE AGAINST THE RELEASED PARTIES. I NONETHELESS SIGN IT FREELY, VOLUNTARILY, WITHOUT DURESS, OR THREAT OF DURESS, AND WITHOUT INDUCEMENT, PROMISE, OR GUARANTEE BEING COMMUNICATED TO ME OTHER THAN AS RECITED IN IT. MY SIGNATURE ON IT IS PROOF OF MY INTENTION TO EXECUTE A COMPREHENSIVE AND UNCONDITIONAL WAIVER AND RELEASE OF ALL LIABILITY TO THE FULL EXTENT OF THE LAW. This Release must be signed (or confirmed digitally) by the participant (or participant’s parent or legal guardian) and received by GSH before participation is permitted. No refunds will be given for non-participation due to failure to submit this Release. Date: September 8, 2024 |
