LIABILITY WAIVER
ADULT LIABILITY WAIVER
Revised: June 15th, 2019
READ THIS DOCUMENT (this “Liability Waiver”) FULLY AND CAREFULLY. IT AFFECTS LEGAL RIGHTS. AGREEING TO THE TERMS OF THIS WAIVER AND SIGNING IT ARE A CONDITION TO PARTICIPATING IN THE ACTIVITIES PROVIDED BY THE RELEASED PARTIES.
THIS LIABILITY WAIVER COVERS IMPORTANT LEGAL MATTERS INCLUDING WITHOUT LIMITATION: (1) ASSUMPTION OF ALL RISKS BY YOU, (2) WAIVER OF LIABILITY AND RELEASE OF ALL CLAIMS (3) AN INDEMNITY BY YOU, and (4) A NAME AND LIKENESS WAIVER.
1. Risks of Activity
a. Inherent and Additional Risks
i. Inherent Risk: Those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. This shall include, but is not limited to the failure by the activity provider to warn of an inherent risk, and the risk that the Undersigned or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the Undersigned.
ii. Additional Risks: Possible injuries related to the risk of participation in the Activity include bruising, lacerations, broken bones, back and neck injuries, soft-tissue injuries, loss of hearing, loss of eyesight, loss of function of body parts, paralysis, disfigurement, traumatic brain injury, other serious bodily injuries, loss of the ability to work, loss of ability to enjoy life, and all of which can be permanent in nature. I understand that one of the risks inherent in this activity is death. I understand that Seaplane rides involve flights that take off from, and land in, the water. I understand that the negligence of myself, others, and/or the Released Parties may lead to serious bodily injuries and/or death, and that I enter into this contract with full knowledge and consent thereto.
2. Duties of Undersigned
a. Duties. The Undersigned shall abide by all rules and instructions by the Seaplane Pilot and employees.
3. Release, Indemnification and Assumption of Risk
a. Release. The Undersigned hereby irrevocably and unconditionally release, forever discharge, and agree not to sue or bring any other legal action against the Released Parties with respect to any and all claims and causes of action of any nature, whether currently known or unknown, which Undersigned, have or which could be asserted on behalf of the Undersigned in connection with the Undersigned’s participation in the Activity or use of the Activity Providers’ equipment and premises, arising out of the dangerous nature of the Activity, including, but not limited by, (i) claims for any loss, damage, punitive damages, injury, illness, death, medical or other expense and/or property damage that the Undersigned may suffer or that any other party may suffer; and (ii) claims of negligence, gross negligence, simple negligence, reckless negligence, will and wanton behavior, active negligence, passive negligence, strict liability, breach of warranty, and/or breach of contract. This Waiver of Liability intends to release all rights. Furthermore, the Undersigned agrees not to institute any lawsuit of any nature, any action at law, or otherwise against the Release Parties, as it relates to damages and loss arising out of the Undersigned participation in the Activity, except as specifically addressed under Section 5, below.
b. Indemnity. The Undersigned hereby agrees to hold harmless and indemnify the Released Parties from any and all liability, costs, expenses, or damages of any kind or nature whatsoever for any property damage or personal injury to any third party and from any suits, claims or demands, including legal fees, and expenses whether or not in litigation, arbitration, arising out of, or related to Minor’s participation in the Activity, or use of the Activity providers’ equipment, of which is an inherently dangerous activity.
c. Assumption of Risk. Undersigned agrees and understands that there are inherent risks and dangers associated with participation in the Activity and use of the Activity Providers’ equipment and premises. These risks, by way of example only, are delineated in Section 1, above. RECOGNIZING THE INHERENT RISKS AND DANGERS, the Undersigned understands the nature of the activity and voluntarily chooses to participate in and expressly assumes all inherent risk and dangers of participation in the Activity and use of the Activity Providers’ equipment and premises.
4. Name and Likeness Waiver, Digital Media
a. Name and Likeness Waiver. The undersigned acknowledges and agrees that the Released Parties, and any third party authorized by such Released Parties, shall have the right to film, videotape, photograph, record voice and make any reproductions of the Undersigned’s physical likeness and voice, and shall have irrevocable right in perpetuity to use, display, and digitally enhance or alter in any manner, such likeness in any media now known or hereafter devised, including by not limited to, the exhibition and/or online use, broadcast, theatrically or on television, cable or radio, any motion picture film, video tape, DVD, CD or any Internet service or Internet application (including but not limited to, social media such as Facebook, YouTube, Instagram, and SnapChat) in which such likeness may be used or otherwise, or any published articles, catalogs, or websites in which such likeness may be printed, used or incorporated, and in the advertising, exploiting and publicizing the Activity and Activity Provider, and all affiliated relationships. Your actual name, likeness, and/or reproduction thereof, as described above, may be used for commercial use and profit by the Activity Provider and all related affiliates, without compensation thereof to the Undersigned nor Minor Child. This Name and Likeness Waiver extends to any and all Minor Child that you permit to participate in the Activity.
5. Disputes
a. Applicable Law. This Liability Waiver was made and executed in the State of Florida, and shall be governed and enforced by Florida law to the exclusion of any other state law.
b. Binding Arbitration. In the event of a dispute arising out of the Undersigned participation in the Activity, the parties agree to resolve any and all disputes through binding arbitration. In the event that there is a dispute regarding the interpretation, validity, formation, waiver, or scope of this Liability Waiver, the parties agree to resolve any and all disputes through binding arbitration. The parties agree that binding arbitration, with one arbitrator, is the sole remedy available to the parties. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedure in Boca Raton, Florida. This clause shall not preclude the parties from seeking provisional remedies from a court of appropriate jurisdiction. Judgment on the award may be entered in any court having jurisdiction. Each party may depose the experts retained by the other party and conduct such other discovery deemed appropriate by the arbitrator. The arbitrator may, in the award, allocated all or part of the costs of the arbitration, including the reasonable attorneys’ fees of the prevailing party and the fees of the arbitrator.
THE PARTIES UNDERSTAND THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE. AFTER SIGNING THIS DOCUMENT, THE PARTIES UNDERSTAND THAT THEY WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE THAT IS COVERED BY THIS ARBITRATION PROVISION, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, THE PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR AS PROVIDED FOR IN THIS LIABILITY WAIVER.
6. Binding Effect
a. This Liability Waiver shall be effective and binding upon the Undersigned, the Undersigned’s heirs, next of kin, executors, administrators, successors, and assigns.
7. Miscellaneous
a. This Liability Waiver constitutes the entire agreement between the parties and supersedes any and all prior contract, arrangements, communications, or representation, whether oral or written, between the parties relating the subject matter of this Liability Waiver, except that if the Adult signed a separate Liability Waiver for themselves, or another Minor Child, those contracts shall survive. This Liability Waiver is a contract and is binding to the fullest extent permitted by law.
b. If any part of this Liability Waiver is deemed unenforceable, the remaining terms are an enforceable contract between the parties.
8. Definitions
a. “Activity” means traveling to or from the Seaplane, flying in the Seaplane, being present on, in, or about the Seaplane in any capacity, and undertaking any activity whatsoever, whether in flight or not, at, on, or in any part of the Seaplane, or premises under direction and control of the Release Parties.
b. “Adult” means the Undersigned parent or legal guardian, being at least 18 years old, signing on behalf of the Minor Child named above so that the Minor will be permitted to engage in the Activity.
c. “Minor Child” means any minor named above who will be participating in the Activity.
d. “Released Parties” means (i) the named corporations, partnerships, the shareholders, or members, managers, directors, officers, agents, partners, sponsors, employees, independent contractors, volunteers and guests of any and each of the following: Air Adventures Clearwater LLC, Pumpkin Eater LLC, RADSK Associates LTD. d.b.a. Marriott Suites on Sand Key, WHI Clearwater Beach Management LLC, and any subsidiary, affiliate, or company under common control with one or more of the previously named companies; (ii) the owners and/or occupiers of the land on which the Seaplane Premises is located, (iii) any person present on the Seaplane, or Seaplane facilities in a capacity as a journalist, reporter or representative of the media and or is shooting stills and/or moving pictures in any media; (iv) any personal who may interact with the Undersigned in connection with medical matters in any capacity at or about the Seaplane or Seaplane facility; (v) any other person who has signed a waiver who is present on the Seaplane or Seaplane facility, and (vi) the manufacturers or suppliers of Equipment in conjunction with Seaplane rides.
e. “Undersigned” means the Adult listed above, and signing below.
f. “Equipment and Premises” means the Seaplane, any safety gear/equipment, real and personal property owned and/or maintained by the Released Parties, and any and all other things and effects required in the participation in the Activity.
LIABILITY WAIVER on behalf of MINOR CHILD
READ THIS DOCUMENT (this “Liability Waiver”) FULLY AND CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS AND THE LEGAL RIGHTS OF YOUR MINOR CHILD.
THIS LIABILITY WAIVER COVERS IMPORTANT LEGAL MATTERS INCLUDING WITHOUT LIMITATION: (1) LIABILITY WAIVER on behalf of YOUR MINOR CHILD, and (4) A NAME AND LIKENESS WAIVER on behalf of YOUR MINOR CHILD
NOTICE TO THE MINOR CHILD’S
NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF THE “RELEASED PARTIES” USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM “RELEASED PARTIES” IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND THE “RELEASED PARTIES” HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
1. Risks of Activity
a. Inherent and Additional Risks
i. Inherent Risk: Those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. This shall include, but is not limited to the failure by the activity provider to warn the natural guardian or minor child of an inherent risk, and the risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the Activity provider or its owner, affiliates, employees, or agents.
ii. Additional Risks: Possible injuries related to the inherent risk include bruising, lacerations, broken bones, back and neck injuries, soft-tissue injuries, loss of hearing, loss of eyesight, loss of function of body parts, paralysis, disfigurement, traumatic brain injury, other serious bodily injuries, loss of the ability to work, loss of ability to enjoy life, and all of which can be permanent in nature. I understand that one of the risks inherent in this activity is death. I understand that Seaplane rides involve flights that take off from, and land in, the water.
2. Duties of Undersigned
a. Duties. The parent and/or natural guardian of the Minor Child shall keep the Minor Child under control at all times and is fully responsible for ensuring that the Minor Child follows all directions and instructions of the Activity provider, and shall warn the Seaplane pilot if the Minor Child has a history of uncontrolled behavior.
3. Release, Indemnification and Assumption of Risk
a. Release. The Undersigned hereby irrevocably and unconditionally release, forever discharge, and agree not to sue or bring any other legal action against the Released Parties with respect to any and all claims and causes of action of any nature, whether currently known or unknown, which Undersigned, have or which could be asserted on behalf of the Undersigned in connection with the Minor Child’s participation in the Activity or use of the Activity Providers’ equipment and premises, arising out of the inherently dangerous nature of the Activity, including, but not limited by, (i) claims for any loss, damage, injury, illness, death, medical or other expense and/or property damage that the Undersigned may suffer or that any other party may suffer; and (ii) claims of negligence, breach of warranty, and/or breach of contract. This Waiver of Liability intends to release no more than is allowed under Florida Statute § 744.301(3) (2018).
b. Indemnity. The Undersigned hereby agrees to hold harmless and indemnify the Released Parties from any and all liability, costs, expenses, or damages of any kind or nature whatsoever for any property damage or personal injury to any third party and from any suits, claims or demands, including legal fees, and expenses whether or not in litigation, arbitration, arising out of, or related to Minor’s participation in the Activity, or use of the Activity providers’ equipment, of which is an inherently dangerous activity.
c. Assumption of Risk. Undersigned agrees and understands that there are inherent risks and dangers associated with participation in the Activity and use of the Activity Providers’ equipment and premises. These risks, by way of example only, are delineated in Section 1, above. RECOGNIZING THE INHERENT RISKS AND DANGERS, the Undersigned understands the nature of the activity and voluntarily chooses for the Minor Child to participate in and expressly assumes all inherent risk and dangers of Minor Child’s participation in the Activity and use of the Activity Providers’ equipment.
4. Name and Likeness Waiver, Digital Media
a. Name and Likeness Waiver. The undersigned acknowledges and agrees that the Released Parties, and any third party authorized by such Released Parties, shall have the right to film, videotape, photograph, record voice and make any reproductions of the Undersigned’s physical likeness and voice, as more fully set forth in the Adult Waiver of Liability.
5. Minor Acknowledgement
a. Authority to Bind. As the parent or guardian of the Minor Child whose name appears above I hereby confirm that I have read this Liability Waiver and accept each and every provision of this Liability Waiver on behalf of myself (as if a direct signature to this Liability Waiver) as well as on behalf of the Minor Child, intending that this Liability Waiver be irrevocably binding upon me, upon the Minor Child, and upon each of my and the Minor Child’s respective heirs, executors, administrator’s, and assigns. I represent and warrant that I am at least eighteen (18) years of age, that I am the parent or legal guardian of the above Minor Child and that I have legal authority to enter into this Liability Waiver and to bind the minor.
b. Intent to Supplement Adult Waiver. This Waiver of Liability on behalf of Minor Child is meant to supplement the Waiver of Liability signed by the Parent independent of this Waiver of Liability on behalf of Minor Child. This Waiver of Liability on behalf of Minor Child shall in no way invalidate the Liability Waiver signed by the Adult on their own behalf.
6. Disputes
a. Applicable Law. This Liability Waiver was made and executed in the State of Florida, and shall be governed and enforced by Florida law to the exclusion of any other state law.
b. Binding Arbitration. In the event of a dispute arising out of the Undersigned participation in the Activity, the parties agree to resolve any and all disputes through binding arbitration. In the event that there is a dispute regarding the interpretation, validity, formation, waiver, or scope of this Liability Waiver, the parties agree to resolve any and all disputes through binding arbitration. The parties agree that binding arbitration, with one arbitrator, is the sole remedy available to the parties. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedure in Boca Raton, Florida. This clause shall not preclude the parties from seeking provisional remedies from a court of appropriate jurisdiction. Judgment on the award may be entered in any court having jurisdiction. Each party may depose the experts retained by the other party and conduct such other discovery deemed appropriate by the arbitrator. The arbitrator may, in the award, allocated all or part of the costs of the arbitration, including the reasonable attorneys’ fees of the prevailing party and the fees of the arbitrator.
THE PARTIES UNDERSTAND THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE. AFTER SIGNING THIS DOCUMENT, THE PARTIES UNDERSTAND THAT THEY WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE THAT IS COVERED BY THIS ARBITRATION PROVISION, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, THE PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR AS PROVIDED FOR IN THIS LIABILITY WAIVER.
7. Binding Effect
a. This Liability Waiver shall be effective and binding upon the Undersigned, the Undersigned’s heirs, next of kin, executors, administrators, successors, and assigns.
8. Miscellaneous
a. This Liability Waiver constitutes the entire agreement between the parties and supersedes any and all prior contract, arrangements, communications, or representation, whether oral or written, between the parties relating the subject matter of this Liability Waiver, except that if the Adult signed a separate Liability Waiver for themselves, or another Minor Child, those contracts shall survive. This Liability Waiver is a contract and is binding to the fullest extent permitted by law.
b. If any part of this Liability Waiver is deemed unenforceable, the remaining terms are an enforceable contract between the parties.
9. Definitions
a. “Activity” means traveling to or from the Seaplane, flying in the Seaplane, being present on, in, or about the Seaplane in any capacity, and undertaking any activity whatsoever, whether in flight or not, at, on, or in any part of the Seaplane, or premises under direction and control of the Release Parties.
b. “Adult” means the Undersigned parent or legal guardian, being at least 18 years old, signing on behalf of the Minor Child named above so that the Minor will be permitted to engage in the Activity.
c. “Minor Child” means any minor named above who will be participating in the Activity.
d. “Released Parties” means (i) the named corporations, partnerships, the shareholders, or members, managers, directors, officers, agents, partners, sponsors, employees, independent contractors, volunteers and guests of any and each of the following: Air Adventures Clearwater LLC, Pumpkin Eater LLC, RADSK Associates LTD. d.b.a. Marriott Suites on Sand Key, WHI Clearwater Beach Management LLC, and any subsidiary, affiliate, or company under common control with one or more of the previously named companies; (ii) the owners and/or occupiers of the land on which the Seaplane Premises is located, (iii) any person present on the Seaplane, or Seaplane facilities in a capacity as a journalist, reporter or representative of the media and or is shooting stills and/or moving pictures in any media; (iv) any personal who may interact with the Undersigned in connection with medical matters in any capacity at or about the Seaplane or Seaplane facility; (v) any other person who has signed a waiver who is present on the Seaplane or Seaplane facility, and (vi) the manufacturers or suppliers of Equipment in conjunction with Seaplane rides.
e. “Undersigned” means the Adult and Minor Child collectively.
f. “Equipment and Premises” means the Seaplane, any safety gear/equipment, real and personal property owned and/or maintained by the Released Parties, and any and all other things and effects required in the participation in the Activity.
As the parent or guardian of the Minor Child whose name appears above I hereby confirm that I have read this Liability Waiver and accept each and every provision of this Liability Waiver on behalf of myself (as if a direct signatory to this Liability Waiver) as well as on behalf of the Minor Child, intending that this Liability Waiver be irrevocably binding upon me, upon Minor Child, and upon each of my and Minor Child’s respective heirs, executors, administrators, and assigns. I represent and warrant that I am at least eighteen (18) years of age, that I am the parent or legal guardian of the Minor Child, and that I have legal authority to enter into this Liability Waiver and to bind the Minor Child.