CALYPSO, QUICKSILVER & MALOLO WARNING, LIABILITY RELEASE, WAIVER OF CLAIMS.
ASSUMPTION OF RISK AND PROMOTIONAL RIGHTS AGREEMENT
THIS IS A BINDING LEGAL AGREEMENT (“RELEASE”), so I will read it carefully. I am digitally signing this Release on behalf of myself and on behalf of all the minors in my control, as their parent and/or guardian (referred to collectively as “I” or “Me”). Now, in consideration of being permitted to board the vessel CALYPSO, QUICKSILVER or MALOLO (collectively, the “Vessel”) and participate in an ocean voyage (“Voyage”) and water based activities, including, but not limited to, swimming, snorkeling, SNUBA diving, free diving, scuba diving, jumping off the boat, jumping and water sliding (collectively, “Activities”), I do hereby state that I have read, understood and agree to each of the following terms, conditions, waivers and warnings:
I accept that there are inherent risks, dangers and hazards associated with boating, the Activities and being present in or on the ocean that could result in falling, tripping, drowning, choking, water ingestion, PERSONAL INJURY, PARALYSIS, DEATH OR PROPERTY DAMAGE, including death or injury from sharks, jellyfish, Man O’ Wars, hydroids, monk seals or other marine life and/or marine conditions. Inherent risks, dangers and hazards may exist or arise at any time without warning and include, but are not limited to: high and/or strong winds, high surf, strong waves, large isolated or rogue waves, surging water, reef and shore break, waves breaking in shallow water, changing tides, strong currents and/or rip currents and undertows, constantly changing winds and adverse weather, wind and ocean conditions that may cause the seas to become rough and unpredictable, pitching and rolling of the Vessel, Vessel distress, wet and/or slippery decks, ladders, stairs, steps and/or railings, uneven, unlevel and/or unsteady surfaces encountered while on board, boarding and/or exiting the Vessel or participating in Activities, and a strong and/or violent impact upon the water while falling, sliding and/or jumping from the Vessel.
I may suffer motion sickness, heat and weather exposure, dehydration, extreme exertion, sunburn, loss of consciousness, heart attack, panic, hyperventilation, difficulty breathing, water inhalation, physical and psychological stress, migraines, seizures, pulmonary edema, eye, ear or sinus trauma, harmful or deadly contact with marine life, collision with buoys, collision with boats, including propellers, sharp rocks, debris, coral reefs, shores, boats, equipment, other persons or equipment, bruises, bites, cuts, contusions, burns, strains, sprains, fractures, permanent scars, disfigurement, concussions, eye injury, ear injury, paralysis, staph infection, anaphylactic shock, exposure to or contraction of COVID-19 (Coronavirus Disease 2019), and/or death. If I am a PERSON WITH A PRE-EXISTING MEDICAL CONDITION, such as heart problems, obesity, diabetes, severe allergies, ear problems, back/knee problems, recent surgery, pacemaker, allergies, pregnancy, etc., I should consult a physician before undertaking the Voyage or Activities.
I SHALL REMAIN ALERT from the time I board until the time I leave the Vessel to minimize the risk of injury to myself and others. As a rule, I understand the need to always keep ONE HAND FOR MYSELF AND ONE HAND FOR THE VESSEL while on board the Vessel. I accept (a) for use “as is” any equipment provided to me during the Voyage (“Equipment”); (b) the Equipment is not intended or guaranteed to ensure my personal safety in the ocean and is not a substitute for being a strong swimmer in good physical condition; and (c) that the Activities and/or the use of the Equipment, including optical masks, snorkels, fins, surf boards, body boards, paddle boards, flotation devices, and other equipment, pose inherent and other risks of PERSONAL INJURY, PARALYSIS, DEATH OR PROPERTY DAMAGE, including exposure to or contraction of COVID-19.
I agree (a) to ask questions of the crew if I do not understand or have any questions about the Vessel, Voyage, Activities and/or Equipment and will follow any instructions that I may be given; (b) I will use the Equipment in a reasonable and safe manner and only for its intended use; (c) I will personally examine the Equipment prior to each use; (d) if at any time I feel the Equipment is damaged or not functioning properly, I will stop using it immediately and I will return it to the crew; (e) I will always keep my eyes on the ocean, and I will be vigilant and use common sense and good judgment at all times; (f) I will not dive or slide head first off the boat, and I will look below before jumping or sliding off the boat; (g) I will obey all crew instructions; and (h) I will obey all posted Vessel signs, warnings and instructions.
I certify that with regard to the Vessel, the Voyage, the Activities and/or the Equipment: (a) I am in good physical health and am able to participate in them safely; (b) my participation is purely voluntary and I have chosen to do so notwithstanding the inherent risks, dangers and hazards; (c) I shall obey all laws, instructions, signs and warnings; and (d) I hereby voluntarily and expressly assume all risks of PERSONAL INJURY, PARALYSIS, DEATH OR PROPERTY DAMAGE, including exposure to or contraction of COVID-19, that may result from the Vessel, the Voyage, the Activities and/or the Equipment. I understand that I may sit out any Activities once the Voyage has commenced.
I understand and accept that this WARNING of the risks, dangers and hazards associated with the Vessel, the Voyage, the Activities and /or Equipment is NOT complete and that other risks, dangers and hazards, known and unknown, anticipated or unanticipated, exist and could result in PERSONAL INJURY, PARALYSIS, DEATH OR PROPERTY DAMAGE, including exposure to or contraction of COVID-19.
I hereby agree to: (a) HOLD HARMLESS, DEFEND AND INDEMNIFY Idlewild Charters, Inc., Kahikolu LTD., West Side Charters, LLC, and their affiliates and subsidiaries, and each of their respective employees, officers, directors, owners, agents, lessors, contractors or assigns, and the Vessel and/or equipment manufacturers and distributors (collectively, the “Released Parties”), for any and all claims for PERSONAL INJURY, PARALYSIS, DEATH OR PROPERTY DAMAGE related to the Vessel, the Voyage, the Activities and/or the Equipment, including exposure to or contraction of COVID-19; and (b) FULLY RELEASE AND DISCHARGE the Vessel and the Released Parties from any and all claims based on negligence, failure to warn, gross negligence, breach of warranty, contract or other legal theory, and for damages for injuries related in any way to the Vessel, Voyage, Activities and/or Equipment, including exposure to or contraction of COVID-19. Without remuneration I grant the Released Parties or their assigns permission to print, post and/or publish on any promotional medium all pictures, video or audio taken of me before, during or after the Voyage.
If any provision of this Release is determined to be illegal, invalid or unenforceable under the law, I understand and acknowledge that said provision(s) shall be severed from this Release and the remaining portions hereof shall survive intact and remain in full force and effect. This Release is governed by Hawaii law, without regard to conflict of laws, provisions, and venue of any dispute that relates to or arises out of this Release or otherwise between the parties shall be in the Second Circuit Court, State of Hawaii.
I FURTHER UNDERSTAND AND ACKNOWLEDGE THAT ANY SUIT OR LEGAL PROCEEDING FOR PERSONAL INJURY, PARALYSIS, DEATH or PROPERTY DAMAGE AGAINST THE RELEASED PARTIES SHALL BE COMMENCED WITHIN ONE (1) YEAR FROM THE DAY ON WHICH THE INJURY, LOSS OR DEATH OCCURRED.
I AFFIRM THAT I AM AT LEAST 18 YEARS OF AGE AND OF CLEAR MIND; THAT I HAVE READ, UNDERSTOOD AND AGREED TO EACH OF THE ABOVE TERMS AND CONDITIONS; THAT THIS IS A BINDING RELEASE THAT IS ENFORCEABLE AGAINST ME AND EACH MINOR IN MY CONTROL, AND AGAINST MY AND THEIR FAMILY, CHILDREN, HEIRS, ASSIGNS, PERSONAL REPRESENTATIVES, TRUSTEES, BENEFICIARIES AND ESTATE; AND THAT I UNDERSTAND THE SIGNIFICANCE AND EFFECT OF THIS RELEASE AND EXECUTE IT BY MY OWN FREE ACT. FINALLY, I CONSENT TO THE USE OF DIGITAL SIGNATURES.