I (“Client”) wish to participate in activities, tours, events, or trips, partially or wholly sponsored, organized, directed, or conducted by ATV Tours Colorado, including its employees, agents, partners, leaders, instructors, members, guides, officers, directors, representatives, owners, operators, or volunteers (collectively "the Guide Service"). In exchange for the ability to join and/or participate in such activities, tours, events, or trips ("Guide Service Activities"), by my/our signature on this Acknowledgement of Risk and Agreement to Release of Liability ("Agreement or Release") I/we hereby irrevocably and unconditionally agree for myself/ourselves and my/our heirs, estate, insurers, successors, and assigns as follows:
1. ACKNOWLEDGEMENT AND ASSUMPTION OF RISK. I understand that any and all Guide Service Activities may be hazardous and may result in severe injury, loss, damage, or death. I understand that I am solely responsible for my own safety, and for taking every precaution to provide for my safety and well-being, while participating in Guide Service Activities. I understand that my skills will be challenged during Guide Service Activities. I understand that I am solely responsible for assuring that my physical conditioning, skills and equipment are adequate for me to participate safely in Guide Service Activities. I understand that the Guide Service has no obligation to provide medical care, and has not undertaken the responsibility to do so. I understand that Guide Service Activities involve inherent, serious risks and dangers that are impossible to know or predict, including but not limited to: driving or riding All-Terrain Vehicles/ATVs/Quad bikes by his or herself and as part of a close group; storms and other forces of nature; fallen limbs, rocks, and other debris; manmade structures, natural structures; cold and hot weather; insects, plants, and other wildlife; fires or floods; equipment malfunctions or failure; extreme remoteness from medical facilities or rescue; travel by motor vehicles; acts or omissions or negligence by the Guide Service; and acts or omissions by negligence, gross negligence, or intention by other activity participants not an agent of the Guide Service. I understand and have considered and evaluated the nature, scope, and extent of the risks involved, and I voluntarily and freely choose to assume such risks.
2. RELEASE FROM LIABILITY. I fully and forever release and discharge the Guide Service, including its employees, agents, partners, leaders, instructors, members, guides, officers, directors, representatives, owners, operators, or volunteers of Guide Service Activities, facilities, equipment and vehicles, and all others involved in Guide Service Activities (the "Released Parties") from any and all injuries (including death), losses, damages, claims (including negligence claims), demands, lawsuits, expenses, and any other liability of any kind, of or to me, my property, or any other person, directly or indirectly arising out of or in connection with my participation in or attendance at any and all Guide Service Activities, including transportation related to Guide Service Activities, even if it is due to the negligence or other fault of the Released Parties.
3. COVENANT NOT TO SUE. I will not initiate any lawsuit, court action, or other legal proceeding against the Released Parties, nor join or assist in the prosecution of any claim for money damages which anyone may have, on account of injuries (including death), losses, or damages sustained by me or others in connection with my participation in or attendance at any or all Guide Service Activities, and I waive any right I may have to do so. This means that I cannot sue to hold the Released Parties responsible for any injuries, losses, or damages that I may experience related to Guide Service Activities, even if due to the negligence or other fault of the Released Parties. I waive my insurers' right to make a claim against the Released Parties based on payments by insurers to me or on my behalf for any reason. This means that my insurers have no right of subrogation against the Released Parties. If any portion of this Covenant Not to Sue is held to be invalid or unenforceable, I agree that the venue of any lawsuit shall be in Leadville, Colorado, and that, irrespective of any otherwise applicable choice-of-law statute, law or provision, Colorado statutory and substantive law shall apply to any such lawsuit, arbitration, or mediation.
4. INDEMNITY. I will hold harmless, indemnify, and reimburse the Released Parties from and for any sums, costs, or expenses (including attorney fees and costs) incurred by any of the Released Parties or paid by them to any person (including me or my insurers) in connection with any accident, injury (including death), loss, or damage sustained by me or others in connection with my attendance at or participation in the Activity, including transportation related to Guide Service Activities. This means that I will reimburse the Released Parties if anyone makes a claim against them based on injuries, losses, or damages I may suffer.
5. NO INSURANCE; MEDICAL EXPENSES. I understand that the Guide Service and others involved in Guide Service Activities do not provide me with any insurance, including life, medical, motor vehicle, or liability, for any illness, accident, injury, loss, or damage that may arise in connection with my participation in or attendance at any Guide Service Activities. If I want insurance of any kind, I must obtain my own insurance. I will pay my own medical emergency expenses and all subsequent medical expenses associated with any illness, accident, or injury in connection with any Guide Service Activities.
6. VALIDITY. I intend this Release to apply in connection with any Guide Service Activities at anytime and anywhere in the world. I further understand and agree that payment of Guide Services constitutes additional, independent acceptance of all of the terms of this Release. I further understand and agree that my signature on a printed copy of this Release is not required to give effect to my acceptance of the terms of this Release, but I will immediately provide my signature on a printed copy of this Release upon request. If any portion of this Release is held to be invalid or unenforceable, all other provisions shall nevertheless continue to be valid and enforceable. This Release supersedes any oral or written statements made by or to me at any time by anyone in connection with any Guide Service Activities. I understand that I cannot terminate, cancel, or revoke this Release for any reason.
7. MANDATORY MEDIATION. If a dispute arises out of or relates to this Release, at any time, the parties must first proceed in good faith to submit the matter to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree, in writing, before any settlement is binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. This mediation provision shall not apply to recovery pursuant to Section 12, the Acceptance of Financial Responsibility for ATV section of the Release for damage and loss of use of the Guide Service’s ATVs.
8. ARBITRATION. WAIVER OF RIGHT TO TRIAL AS TO ALL PARTIES.
A. Any dispute, controversy or claim arising out of or relating in any way to the Agreement/the relationship with the Guide Service including without limitation any dispute concerning the construction, validity, interpretation, enforceability, or breach of the Agreement, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. In the event of a dispute, controversy or claim arising out of or relating in any way to the Agreement/the relationship, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith pursuant to Paragraph 7 of the Release. Should the dispute not be resolved within fourteen (14) days after such mediation, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after one year from when the aggrieved party knew or should have known of the controversy, claim, dispute, or breach.
B. This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.
C. The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within twenty days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the Judicial Arbiter Group in Colorado.
D. The arbitrator shall have the sole authority to decide arbitrability of claims arising between the parties.
E. The arbitration shall be conducted in Leadville, Colorado.
F. The laws of the State of Colorado and the simplified procedural rules (Colo. R. Civ. P. 16.1) shall be applied in any arbitration proceedings, without regard to principles of conflict of laws.
G. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
H. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
I. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party.
J. Each party shall pay its own proportionate share of arbitrator fees and expenses. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
K. No Opt-Out. This agreement to arbitrate and the costs associated with arbitration are part of the Agreement between the Guide Service and its Clients and is integral as to the costs charged to Clients of the Guide Service. Should a Client of the Guide Service not wish to agree to arbitrate their claims, the Client should notify the Guide Service and the Client will not be permitted to take part in any Guide Service Activities offered by the Guide Service. If a party uses the Guide Service, he or she is agreeing to arbitrate all claims the person, entity, heirs, estate, insurers, successors, and assigns has with the Guide Service.
9. SURVIVAL. All provisions regarding the Release shall survive the termination of this Agreement.
10. ENTIRE AGREEMENT. This Release constitutes the entire contract between the parties and any prior agreements, whether oral or written, have been merged and integrated into this Release. Amendments to this Release and any provision thereof, shall only be made in writing signed by the Guide Service and all other parties seeking to enforce or benefit from such amendment.
11. SEVERABILITY. If any provision of this Agreement is held illegal or unenforceable in a judicial or arbitration proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Agreement shall remain operative and binding on the Parties.
12. Acceptance of Financial Responsibility for ATV. While driving or riding on an ATV (also commonly referred to as an all-terrain vehicle or quad bike), Client and Participant assume all responsibility for damages to the ATV and for loss-of-use of the ATV. You are liable for damages to the ATV as a result of rolling, tipping, flipping, or collision with other ATVs or with any other objects, natural or manmade. You are also liable for mechanical failures caused by your negligent or intention acts, such as shifting into the wrong gears while moving or driving with brakes engaged. The following are examples of pricing for parts and labor:
Labor: $156 per hour
Parts: All parts will have taxes and shipping added
Front rack: $263.61
Front Plastic Cab: $610.38
Side Plastic: $274.07
Rear rack: $311.80
Oil Change: $388.37—required on all roll/tip overs
Total Replacement cost: $12,500 and up
Damage to an ATV is not limited to the parts list above and all parts, labor, and retrieval costs are your responsibility for payment. In addition to the above costs, a loss-of-use fee of $200.00 per day will be applied while the ATV is undergoing repairs. YOU AUTHORIZE THE GUIDE SERVICE TO CHARGE YOUR CREDIT OR DEBIT CARD TO RECOVER THESE DAMAGES WITHOUT FIRST SEEKING MEDIATION, ARBITRATION, OR LITIGATION.