Minor Waiver (Paper and Electronic) HFAC Water Activities Version 5/14

Transcription

1 MINORS UNDER THE AGE OF 18 RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT FOR HARPERS FERRY ADVENTURE CENTER INC WATER ACTIVITIES *Only the Parent or Court-Appointed Legal Guardian of the Child may sign this Agreement* In consideration of the hereinafter identified Child under the age of 18 years (referred to as Child or Minor ) being permitted to use the services and participate in the water-related activities provided by Harpers Ferry Adventure Center Inc, its owners, officers, employees, managers, shareholders, affiliated entities, agents, representatives, officers, directors, associates, volunteers, contractors, subcontractors, guides, successors and assigns (collectively, HFAC ), I acknowledge, appreciate and agree that: 1. Scope of the Water Activities Covered by this Agreement and Participant Warranty: I understand that the terms Parent and Parents in this Agreement includes any Legal Guardian. This Agreement governs any and all aspects of my Child s participation in water-related activities and use of services provided by HFAC, including without limitation: parking and waiting at any HFAC used land or facility; being transported in buses or other conveyances by HFAC; being provided by HFAC with equipment for use; participating in white water or non-white water rafting, tubing, kayaking, canoeing or other water sporting activities with HFAC; and receiving training, transport, guide, and related services from HFAC (collectively, Water Activities ). I represent and warrant that my Child can swim, and is otherwise fully capable of engaging in the Water Activities with no physical, emotional or mental incapacity, or special needs that should limit or impair the Child s ability to participate safely in such activities. I also represent that my Child has the present ability to participate in the Water Activities in a safe and knowledgeable manner. 2. Acknowledgement of Risks of Water Activities, Representation of Individual Capacity and Assumption of Risk: I understand that participation in Water Activities poses risk, and even substantial risk, of bodily injury, temporary and permanent disability (including paralysis), or death, and property damage or loss. I understand that such risk may result from conditions which include, but are not limited to: (1) depth of water and strong, changing or unpredictable currents; (2) the actions of others using the water; (3) limitations or failure of equipment or other items, or latent or apparent defects in the condition of equipment or other items supplied by HFAC or others; (4) rain, wind, lightning or other adverse weather conditions; (5) personal limitations of strength, endurance, balance, failure of nerve or erroneous decision making, negligent conduct, willful misbehavior, interference with or disregard of HFAC staff or other persons; (6) any action taken not that of a reasonably prudent person in like circumstance; (7) an inability to swim or stay afloat, or inability to remain calm and react reasonably to a crisis; (8) the occurrence of a collision, capsizing, sinking or other hazard resulting in wetness, injury, exposure, hypothermia and/or drowning; (9) the presence of insects, marine life, rocks, shoals, sandbars (hidden or otherwise) and other features of the waterway; (10) heat or sun, producing dehydration, sunburn, or sunstroke; (11) fatigue, chill and/or dizziness; (12) delay in rescue or medical treatment in the event of a medical crisis. In addition, there are out of water elements of my participation in the Water Activities that may pose risk of serious bodily injury or death. These may include, but are not limited to: collisions or other accidents that may occur when being transported by HFAC and the actions of third parties at any HFAC used land or facility. I also understand that such risks include HFAC s own negligence and the negligence of others. I also understand that HFAC s staff will provide the Child with equipment usage and safety instructions, but HFAC cannot warrant the Child s ability to learn, process and abide by that information, or the Child s ability to respond capably in the Water Activities. I acknowledge that HFAC is not responsible for providing training which renders the Child an expert in practices on a river or other waterway. I FOR MYSELF AND THE CHILD EXPRESSLY AGREE TO BE RESPONSIBLE FOR THE CHILD S WELFARE AND VOLUNTARILY AND KNOWINGLY ASSUME ALL OF THE ABOVE RISKS, INCLUDING BOTH THOSE KNOWN AND UNKNOWN, EVEN IF ARISING FROM THE NEGLIGENCE OF HFAC, its owners, officers, employees, managers, shareholders, affiliated entities, agents, representatives, officers, directors, associates, volunteers, contractors and subcontractors, guides, successors and assigns, owners and lessors of any land or facilities they use, or others. 1

2 3. Duties of Parties to this Agreement and HFAC s Limited Liability: I understand that given the unique geographic configuration of the Harpers Ferry area waterways, participation in Water Activities may occur within one or more of the states of Virginia, West Virginia and Maryland. I also agree that only West Virginia currently has a statutory system of law which establishes duties for water activity providers and participants. That system, established under the provisions of West Virginia Code Section 20-3b-5, et seq, is known as the West Virginia Whitewater Responsibility Act, ( Act ). Under the Act, HFAC has been licensed as a commercial whitewater outfitter, and HFAC guides licensed as commercial whitewater guides. I hereby agree on behalf of my Child that in the event of any claim against HFAC, its owners, officers, employees, managers, shareholders, affiliated entities, agents, representatives, officers, directors, associates, volunteers, contractors and subcontractors, guides, successors and assigns, and owners and lessors of any land or facilities, concerning my Child s participation in HFAC Water Activities, the duties of HFAC, my Child s duties as a participant, and the limitation of liability of HFAC, shall all be as set forth under the West Virginia Whitewater Responsibility Act, whether that participation occurs within the territorial boundaries of Virginia, West Virginia or Maryland. I acknowledge I have read and understand the following provisions of the West Virginia Whitewater Responsibility Act: 20-3B-1. Legislative purposes. Every year, in rapidly increasing numbers, the inhabitants of the state of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the state of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the state of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury. 20-3B-2. Definitions. Unless the context of usage clearly requires otherwise: (a) "Commercial whitewater outfitter" means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three, article two of this chapter. (b) "Commercial whitewater guide" means any person as defined in section twenty-three, article two of this chapter. (c) "Participant" means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the state. 20-3B-3. Duties of commercial whitewater outfitters and commercial whitewater guides. (a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this state shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial whitewater outfitters and commercial whitewater guides in this state shall conform to safety and other requirements set forth in article two of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a, article two of this chapter. 2

3 (b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession. 20-3B-4. Duties of participants. (a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this state. (b) No participant may: (1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or (2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or (3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or (4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or (5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter's agent or employee. 20-3B-5. Liability of commercial whitewater outfitters and commercial whitewater guides. It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken. (a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article. (b) The limitations on liability created by this article apply only to commercial whitewater outfitters licensed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment. 4. Waiver of Liability, Release, Indemnity and Covenant Not to Sue: To the fullest extent permitted by law, I on behalf of myself, the Child, the Child s Parents, the Child s Legal Guardian, any designated Temporary Caretaker ( Temporary Caretaker ), my and their heirs, as well as my and their legal and personal representatives, next of kin, successors and assigns (collectively referred to as Releasors ), expressly WAIVE AND RELEASE, COVENANT 3

4 NOT TO SUE, AND FOREVER DISCHARGE HFAC, its owners, officers, employees, managers, shareholders, affiliated entities, agents, representatives, officers, directors, associates, volunteers, contractors and subcontractors, guides, successors and assigns, and owners and lessors of any land or facilities used by HFAC (collectively, Releasees ), from any and all liabilities, claims, demands, causes of action for money or other compensation, or any other form of relief, for property loss or damage, personal injury, death or other damages arising out of, relating to, or concerning the Child s participation in the Water Activities or use of services provided by HFAC, whether caused by the Releasees own negligence or otherwise. I for myself, the Child, the Child s Parents, the Child s Legal Guardian, and any Temporary Caretaker also AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Releasees from and against any and all claims, injuries, costs, damages, losses or suits, including attorney s fees, brought by or on behalf of anyone, arising out of or relating to the Child s participation in the Water Activities and use of services provided by HFAC, even if such claims allege negligence by Releasees or others, with said obligation not dischargeable in bankruptcy. This release does not include the release of the statutory duties set forth in the Act as set forth above. 5. Participant s Own Responsibility for Personal Property: I understand and agree that the Parent, Legal Guardian, or Temporary Caretaker supervising the Child is solely responsible for the security and protection of the Child s personal property, of whatsoever kind or nature, and the Parents agree HFAC will not be responsible for any loss or damage of the Child s property (or any other property being used by the Child) while the Child is on land or facilities used by HFAC or otherwise participating in Water Activities. 6. Permission for Use of Publicity Items: I agree that HFAC may copyright in its own name, use, re-use, and reproduce any images, photos, videos, slides, films or other media taken of me and/or the Child, in any medium, free of charge and without my right to inspection, for promotion or publicity purposes relating to Water Activities and HFAC services. 7. Choice Of Legal Forum, Application Of This Agreement And Severability Of Provisions: I agree that all disputes and matters arising out of, in connection with, or relating to this Agreement and/or the transactions and relationships among the parties contemplated by this Agreement shall be filed and resolved exclusively by the United States District Court for the Eastern District of Virginia or state courts located in Loudon County, Virginia. I agree that any dispute shall be settled by Virginia law except as otherwise specified in this Agreement. The parties agree to personal jurisdiction in the specified forum. I agree that any dispute shall be settled by West Virginia law and the Act. I further agree that Federal Maritime Law shall not apply in any such suit. I agree that this Agreement is intended to be as broad and inclusive as permitted under applicable law. I further agree that if any portion of this Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. 8. Parents Representation of Legal Capacity: The Parents represent that they are the legal Parents or a court-appointed Legal Guardian of the Child. (If a Legal Guardian is completing and signing this Agreement, a copy of the Court Order of appointment as Legal Guardian must be submitted with this Agreement). The Parents represent that they have legal custody of the Child and have full and unimpeded legal authority to enter into this Authorization and Consent. If only one Parent is signing, that Parent represents by so signing that the other Parent has agreed to and has authorized the signing on behalf of both Parents, or that the other Parent is no longer living, or that that a Court Order now exists which expressly grants the Parent signing sole authority to make decisions on behalf of the Child. 9. Agreement to Continuous Supervision of Child: The Parents and Temporary Caretaker agree that one of the Child s Parents or the Temporary Caretaker hereinafter designated shall be in continuous supervision, charge and responsibility of the Child while the Child is on land or facilities used by HFAC or is otherwise engaged in Water Activities, keeping the Child safe and secure, and making all decisions concerning the Child s participation in Water Activities and the Child s general welfare while on any land or facilities used by HFAC. The Parents and Temporary Caretaker understand that HFAC has neither daycare nor other resources for care and supervision of Children, and will not be responsible for supervision or care of Children while engaged in Water Activities. WILL ONE OF THE CHILD S PARENTS BE WITH THE CHILD AT ALL TIMES WHILE THE CHILD IS ENGAGED IN HFAC ACTIVITIES? YES NO (CHECK ONE). IF YOU HAVE CHECKED NO ALL BLANKS IN PARAGRAPH 10 MUST BE COMPLETED. 4

5 10. Authorization of Designated Temporary Caretaker: The Parents hereby grant authorization and consent for the responsible adult over the age of 18 designated below (referred to in this Agreement as the Temporary Caretaker ) to act in the stead of the Parents to make all decisions and perform all acts of the Parents concerning the Child while the Child is engaged in any Water Activities. The Temporary Caretaker is authorized on behalf of the Parents, without limitation, to determine whether the Child is capable of participating in and is permitted to participate in a particular HFAC activity or use HFAC services, to complete and sign any waiver of liability and other required forms, to accompanying and supervise the Child, to administer any medication to the Child, to summon and consent to medical care required by the Child, and do all such things in care for and acting on behalf of the Child as the Parents would do if present. Print Full name of Temporary Caretaker: (the full legal name of the individual who will be on site and responsible for the Child must be indicated; non-specific designations such as Leader of Girl Scout Troop #4444 or Whoever is Acting as Adult Chaperone for the Mt. Olive Youth Group are not sufficient) Temporary Caretaker: Residence Address: City: State: Zip: Phone Number: 11. Indemnity of HFAC from Consequences of Parental or Caretaker Fault: The Parents and Temporary Caretaker, jointly and severally agree, that in the event any decisions, actions or inactions of either the Parents or Temporary Caretaker result in injury or death to any person (including the Child) or damage to any property, the Parents and Temporary Caretaker shall be solely responsible for any damages there from and shall indemnify, defend and hold harmless therefrom Releasees under the terms of this Agreement. 12. Electronic Agreement (Applicable to Electronically Signed Agreement Only). I understand that a paper version of this agreement is available but I have voluntarily chosen to sign this document electronically. I will receive a Portable Document Format (PDF) version of this agreement after it is signed at the address I have provided. To view the PDF document, I understand that I will need software that enables me to receive and access PDF files such as Adobe Reader software, available at or other software capable of reading a PDF file. In order to print and retain a copy of the Agreement, I understand that I will also need a printer connected to my computer. I may also request a paper version of this signed Agreement from HFAC for $5.00 (pickup at location) or $10.00 (mailed). I understand that I may withdraw my consent to receive communications in electronic form by contacting HFAC by phone at (800) or (540) or at info@hfadventurecenter.com. I HAVE READ THIS AGREEMENT, FULLY UNDERSTAND ALL OF ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND VOLUNTARILY AGREE TO BE BOUND BY THESE TERMS. MY SIGNATURE APPLIES TO ALL PAGES OF THIS AGREEMENT. Print Full Name of Child: Age: Birth Date: GROUP NAME (IF APPLICABLE): SIGNATURE OF PARENT 1: DATE SIGNATURE OF PARENT 2: DATE SIGNATURE OF TEMPORARY CARETAKER: DATE 5

6 Please Print Legibly and Fully Complete the Following Blank Spaces PARENT 1/TEMPORARY CARETAKER: LAST NAME: FIRST NAME: ADDRESS: ZIP: CITY: STATE: HOME PHONE: MOBILE PHONE: AGE: DATE OF BIRTH: You will be added to our e-news list for events, news, and special offers. If you later decide you do not want to receive this info, you can unsubscribe. This information will not be shared with any other party. PARENT 2: LAST NAME: FIRST NAME: ADDRESS: ZIP: CITY: STATE: HOME PHONE: MOBILE PHONE: AGE: DATE OF BIRTH: You will be added to our e-news list for events, news, and special offers. If you later decide you do not want to receive this info, you can unsubscribe. This information will not be shared with any other party. THE CHILD HAS PRESCRIBED MEDICATIONS ON HIS/HER PERSON FOR USE IN A CRISIS, OR A HEALH PROBLEM/MEDICAL DISABILITY AND PRESCRIBED MEDICATION FOR SUCH THAT MUST BE DISCLOSED TO HFAC UNDER THE WEST VIRGINIA WHITEWATER RESPONSIBILITY ACT ( 20-3B-4(2)):: Yes: No: (check one). If yes, the Parent or Temporary Caretaker is responsible for advising your guide of this fact on any guided trip. HOW DID YOU HEAR ABOUT US? Google Other Internet Search Past/Repeat Customer Referral Facebook Washington Post Living Social Radio/TV Harpers Ferry KOA Other print ad (please list): Other (please list): 6