RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK WARNING AND INDEMNIFICATION AGREEMENT
WARNING:
PLEASE READ CAREFULLY BEFORE SIGNING! BY SIGNING THIS AGREEMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT
TO: Swell Education Ltd. (“the Company”), their owners, officers, directors, partners, shareholders, agents, guides, instructors, independent contractors, affiliates, volunteers, participants, employees, representatives, successors and assignees of the Company, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively – including the Company – referred to as "the Releasees"): DEFINITION – This Agreement shall apply to all activities, events or services provided, arranged, organized, sponsored or authorized by the Releasees, including but not limited to: sea kayaking, stand-up paddleboarding, surfing, canoeing, camping, backpacking, swimming, fishing, hiking, instructional courses and sessions, clinics, programs, transportation or travel to and from locations used for the activities, and loading and unloading of vehicles (hereinafter collectively referred to as ‘the Activities”).
I UNDERSTAND THAT PARTICIPATION IN THESE ACTIVITIES CAN BE HAZARDOUS AND MAY INVOLVE THE RISK OF PHYSICAL INJURY OR DEATH.
I acknowledge that my participation in the Activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks cannot be eliminated without jeopardizing the essential qualities of the Activities. The risks and hazards include but are not limited to slips and falls while kayaking or paddleboarding or disembarking from the kayak or stand-up paddleboard; overturning of the kayak or stand-up paddleboard; loss of balance while in the kayak or on the stand-up paddleboard; falling from the kayak or stand-up paddleboard; hypothermia due to exposure to very cold water; drowning; variation in the water conditions, surface and currents, including high waves and tides, changing and inclement weather conditions including storms, high wind and lightning; entrapment by trees, logs, rocks or equipment, collision with rocks, trees, logs, deadfall, boating equipment; equipment failure; accidents that occur while hiking, backpacking and camping including steep slopes in their natural state that may contain obstacles and hazards; variation in the terrain including holes, depressions, loose gravel, rocks, mud, roots, creeks; impacts with trees, tree stumps, forest deadfall, rocks, or other natural or manmade objects on or adjacent to the trails; encounters with wild and domestic animals; becoming lost or separated from one’s guide, instructor or party; lack of shelter; limited access to and/or delay of medical attention; Lessee’s health condition; physical exertion, exhaustion, dehydration, hypothermia, heat-related illnesses; mental distress; inability to act safely or within one’s ability; and negligence or failure of other persons to act safely. I understand that the participation in these activities may result in muscle and joint sprains and strains; cuts and bruises; broken wrists, arms, ankles and legs; internal injuries, concussions, and other serious injuries including paralysis or death.
RECOGNIZING THESE RISKS AND DANGERS, I VOLUNTARILY CHOOSE TO PARTICIPATE IN THE ACTIVITIES AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITIES, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.
In consideration of the Releasees allowing me to participate in the Activities and permitting my use of their equipment, I AGREE, to the greatest extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE Swell Education Ltd., its insurer, the Company’s owners, officers, directors, partners, shareholders, agents, guides, instructors, independent contractors, affiliates, volunteers, participants, employees, representatives, successors and assignees of the Company, and all other persons or entities acting in any capacity on their behalf (each a “Released Party”) FOR ANY INJURY, INCLUDING DEATH, LOSS, PROPERTY DAMAGE OR EXPENSE, WHICH I MAY SUFFER, OR THAT MY NEXT OF KIN MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF MY PARTICIPATION IN THE ACTIVITIES, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT OR NEGLIGENT REPRESENTATION AND/OR EXPRESS OR IMPLIED WARRANTY OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE UNDER THE OCCUPIERS LIABILITY ACT, R.S.B.C. 1996, c337. I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF ANY RELEASED PARTY TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF THE ACTIVITIES.
In consideration for allowing me to participate in the Activities, I further release and give up any and all claims and rights that I may have against any released party and understand this releases all claims, including those of which I am not aware, those not mentioned in this release and those resulting from anything that has happened up to now.
I acknowledge that I am required to wear an approved Personal Flotation Device and other safety equipment while participating in certain Activities. I am aware that there are guides or instructors available to answer any questions that I may have as to the proper use of the equipment. I am further aware that the physical exertion required of certain of the Activities can activate or aggravate per-existing physical injuries, conditions or congenital defects. I acknowledge that I should seek medical advice if I know or suspect that my physical condition may be incompatible with the Activities. I agree that I am not nor will I be under the influence of drugs or alcohol while participating in the Activities.
I agree that this 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.
I agree that this Agreement and any rights, duties and obligations as between the parties to this Agreement shall be governed by and interpreted solely in accordance with the laws of the Province of British Columbia and no other jurisdiction. I agree that any litigation involving the parties to this 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.
MARINE LIABILITY ACT - The Marine Liability Act, S.C. 2001, c. 6 may limit the liability of the Releasees in the event of an accident resulting in injury or death.
COVID-19 has been declared a global pandemic. I understand that COVID-19 is extremely contagious. The Company has put in place preventative measures to reduce the spread of COVID-19 consistent with provincial guidelines; however, the Company cannot guarantee that I will not become infected with COVID-19. I represent and warrant to the Releasees that any time I participate in any of the Activities described herein with the Company, for the duration in which this agreement is in force, that I shall not be experiencing COVID-19 symptoms, nor have had COVID-19 symptoms in the 14 days prior to my participation in any of the Company’s Activities. I represent and warrant to the Releasees that, while this agreement is in force, I will not participate in any Activities with the Company if I have been advised by the Government of Canada or the BC Centre for Disease Control or my doctor to self-isolate due to possible exposure to COVID-19. I am fully aware of the risks and dangers with respect to COVID-19 inherent in my participation in the Activities.
In entering into this agreement, I am not relying upon any oral or written representations or statements made by the Releasees with respect to the safety of the Activities other than what is set forth in this 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.
I accept all equipment in its present condition and I accept full responsibility for the care of the equipment I am renting. I agree to pay for any damage to the equipment, and to replace the equipment at full retail value if it is lost or stolen.
PLEASE FILL OUT THIS SECTION CLEARLY AND COMPLETELY