RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTIONS OF RISK AND INDEMNITY AGREEMENT
(hereinafter referred to as the “Release Agreement”)
BY SIGNING THIS DOCUMENT YOU WILL WAIVE OR GIVE UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE FOR NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF THE OCCUPIERS LIABILITY ACT OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT
PLEASE READ CAREFULLY!
TO: TOBY CREEK ADVENTURES LTD.; Paradise Mountain Resorts Limited; Altash Leasing Corporation Inc.; Adrian Olmstead; Fountain Capital Corp.; RGM Holdings Ltd.; Bombardier Recreational Products Inc.; BRP US Inc.; His Majesty The King In Right Of The Province Of British Columbia; and their respected affiliates and subsidiaries, booking agencies, directors, officers, employees, guides, instructors, agents, representatives, volunteers, independent contractors, subcontractors, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as "THE RELEASEES")
DEFINITIONS: In this Release Agreement, the term “Mountain Biking” shall include all activities, events, services or use of facilities and equipment provided, arranged organized or conducted by the Releasees, including but not limited to: cycling; bike descents; guided mountain biking activities; mountain bike tours; bicycle skills training; mountain bike and related equipment rental; use of trails and roads; all travel by or movement around all-terrain vehicles (ATV), utility terrain vehicles (UTV), side-by-sides (SXS), helicopters or other vehicles; alpine or wilderness activities, races; competitions; demonstrations and events; orientation and instructional courses and sessions; the use of e-bikes, or any other type of wheeled self-propelled conveyance; and all other related events or services. The term "Equipment" shall include all mountain bikes and ancillary and affiliated gear and equipment such as all variations of mountain bikes, e-bikes, and protective equipment such as helmets elbow/forearm and knee/shin armour. The term “Facilities” means all trails, terrain, parks, paths, roads, or other lands where Mountain Biking takes place, including all such facilities owned, operated or maintained by any of the Releasees.
In this Release Agreement, the term “Negligence” includes the failure by the Releasees to use such care as a reasonably prudent and careful industry professional would use under similar circumstances, or breach of any other duty of care imposed by law.
ASSUMPTION OF RISKS: I am aware that participation in Mountain Biking involves many risks, dangers and hazards. Injuries are a common and expected part of Mountain Biking. Mountain Biking may take place on steep and rugged terrain and features that are both physically and technically challenging will expose the ride to many risks, dangers and hazards. These include, but are not limited to: uphill transportation by motor vehicle; changing or adverse weather conditions, including snow, rain, lightning and hail; mechanical failure of the Equipment, slips, trips and falls; loss of balance; high speed descents; difficulty or inability to control one's speed and direction; rapid or uncontrolled acceleration on hills and inclines; reduced visibility caused by natural and manmade features and variation in terrain; extreme variation in mountain biking terrain including steep or slippery sections, trees, roots, tree stumps, logs, cliffs, rocks, rock drops, loose gravel, holes, depressions, streams and creeks; alpine and wilderness areas; constructed features such as bridges, ramps, ladders, bumps, berms, jumps, drops, log rides, rock gardens, pump tracks, teeter totters and wall rides; collisions with natural and constructed objects including other mountain bikers, pedestrians, spectators, officials, waterbars, fences, mine shafts, logging debris, logging equipment, artificial road barriers, and vehicles including ATV, UTV and SXS; many of the hazards referred to above exist throughout the Facilities and may not be marked, encounters with domestic and wild animals including dogs, bears, moose, elk, cougars; my health condition, physical exertion, dehydration, exhaustion, altitude sickness, or other affliction; failure to act safely or within one's ability, negligent first aid, negligence of other riders or users of the Facilities; negligently maintained or repaired Equipment; and NEGLIGENCE ON THE PART OF THE RELEASEES. I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME OR WARN OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH USE OF THE EQUIPMENT OR PARTICIPATING IN MOUNTAIN BIKING.
Communication in the remote terrain is difficult and in the event of an accident, rescue and medical treatment may not be readily available. Weather conditions may be extreme and can change rapidly and without warning.
MOUNTAIN BIKE SAFETY: I have been advised to wear an approved helmet and other protective Equipment such as elbow/forearm and knee/shin armour when Mountain Biking, free-riding or down-hilling.
COMPETITIONS: I acknowledge that the risks, dangers and hazards of Mountain Biking are increased during races, competitions and contests, due to the competitive nature of the activity and the fact that there will be other participants on the course. I freely accept and fully assume all such risks, dangers and hazards and the possibility of personal injury, death, property damage or loss resulting therefrom.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH THE USE OF THE EQUIPMENT AND FACILITIES AND OF PARTICIPATING IN MOUNTAIN BIKING AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR LOSS RESULTING THEREFROM.
RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
In consideration of the Releasees: permitting me to participate in Mountain Biking, Mountain Bike Tours, Lessons, Sessions; Rental of Related Equipment; and use of their Services and Facilities as defined in this Release Agreement, I hereby agree as follows:
- TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against the Releasees and TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer as a result of my use of Equipment, or Facilities, or participation in Mountain Biking DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER ANY APPLICABLE OCCUPIER’S LIABILITY ACT, R.S.B.C. 1996, c. 337 ON THE PART OF THE RELEASEES. I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM OR WARN ME OF THE RISKS, DANGERS AND HAZARDS OF PARTICIPATING IN MOUNTAIN BIKING;
- I AGREE TO HOLD HARMLESS AND INDEMNIFY THE RELEASEES from any and all liability for any property damage or personal injury to any third party resulting from my participation in Mountain Biking or use of the Facilities;
- This Release Agreement shall be effective and binding upon my heirs, next of kin, executors, administrators, assigns and representatives, in the event of my death or incapacity;
- This Release Agreement and any rights, duties and obligations as between the parties to this Release Agreement shall be governed by and interpreted solely in accordance with the laws of the Province of British Columbia and no other jurisdiction;
- Any litigation involving the parties to this Release Agreement shall be brought solely within the Province of British Columbia and shall be within the exclusive jurisdiction of the Courts of the Province of British Columbia;
- Photo Release – I consent to photographs taken of me during Mountain Biking activities and to the publication of the photographs by the Releasees for advertising, promotional and marketing purposes, and;
- By providing my email above I consent to receive electronic messages from Toby Creek Adventures Ltd.
In entering into this Release Agreement I am not relying on any oral or written representations or statements made by the Releasees with respect to the safety of the use of the Equipment or Mountain Biking, other than what is set forth in this Release Agreement.
I CONFIRM THAT I HAVE READ AND UNDERSTOOD THIS AGREEMENT PRIOR TO SIGNING IT, AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I OR MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST THE RELEASEES.
Signed this day: December 2, 2023