participating in any and all ways in the related events and activities of 4 Joy Ventures, LLC dba Cowabunga Surf and Sport, 4336 N. E. Ocean Blvd, Jensen Beach FL from January 1, 2020 to December 31, 2020, the undersigned acknowledges, appreciates, and agrees that:
This waiver, release and indemnity agreement is being entered into by named party or parties above or, if participant is less that 18 years of age, by his/her parent/guardian, hereinafter referred to as “Participant”.
This waiver, release and indemnity agreement is being given by Participant to 4 Joy Ventures, LLC, d/b/a Cowabunga Surf and Sport, 4336 N.E. Ocean Blvd, Jensen Beach, FL, as well as its managers, members, employees, independent contractors, owners, parent entities, subsidiaries, subdivisions and divisions, affiliates, predecessors, and successors and its respective general partners, limited partners, directors, officers, representatives, administrators, assigns, volunteers, participants, sponsors, sponsoring agencies, advertisers, promoters, principals, agents, departments, attorneys, accountants, auditors, advisors, insurers, carriers, heirs, and all other persons or entities acting or purporting to act on its respective or collective behalf, collectively referred to herein as “Company”.
This Agreement is being entered into for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and this Agreement is of perpetual duration.
The person signing this Agreement certifies, covenants and duly deposes that they have the authority to enter into this Agreement on behalf of Participant and that they are at least 18 years of age.
Participant will be engaging in some or all of the following activities: surfing; skim boarding; body boarding; paddle boarding; playing games on the beach or in the water, all hereinafter referred to as the “Activities”. Participant acknowledges, appreciates, and agrees that:
The risk of injury to myself or my child/ward from the activities involved in these programs is significant, including the potential for permanent disability and death, and while particular rules, equipment, and personal discipline may reduce this risk, the risk of serious injury does exist; and,
I, for myself or for my child/ward, knowingly and freely assume all such risks, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERS, and assume full responsibility for my own or my child's /ward's participation; and,
I willingly agree that I/my child/ward will comply with the program's stated and customary terms and conditions for participation. If for ANY REASON, there is unusual significant concern regarding the participant's readiness for participation and/or in the program itself, I agree to readily remove myself or my child/ward from the participation, receiving no financial remuneration or refund for the balance of time allotted for the activities.
Release:
The undersigned, on behalf of the undersigned and Participant, as well as on behalf of Participant's family, heirs, assigns and next of kin (“Releasors”), hereby irrevocably remise, release, acquit, satisfy, and forever discharge Company of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, liens, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever in law or in equity which Releasors ever had, now have or could have had or which any personal representative, successor, heir or assign of Releasors hereafter can, shall or may have against Company arising out of or in any way relating to the Activities, known or unknown, contingent or liquidated. This release includes any and all claims in which Company is negligent, a contributing cause, an intervening cause or superseding cause of negligence, or otherwise acts in a negligent, grossly negligent or intentional manner.
Indemnity:
Participant and the undersigned hereby irrevocably agree to indemnify, defend and hold Company harmless of and from any claims, suits, damages or liabilities, including attorney's fees and court costs, arising out of or in any way relating to the Activities. This indemnity extends to any and all claims in which Company is negligent, a contributing cause, an intervening cause or superseding cause of negligence, or otherwise acts in a negligent, grossly negligent or intentional manner.
Waiver:
The undersigned, on behalf of the undersigned and Participant, as well as on behalf of Participant's family, heirs, assigns and next of kin (“Releasors”), hereby irrevocably waives as against Company any actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, liens, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever in law or in equity which Releasors ever had, now have or could have had or which any personal representative, successor, heir or assign of Releasors hereafter can, shall or may have against Company arising out of or in any way relating to the Activities, known or unknown, contingent or liquidated. This waiver includes any and all claims in which Company is negligent, a contributing cause, an intervening cause or superseding cause of negligence, or otherwise acts in a negligent, grossly negligent or intentional manner.
Covenant Not to Sue:
The undersigned, on behalf of the undersigned and Participant, as well as on behalf of Participant's family, heirs, assigns and next of kin, hereby covenants not to sue Company for an act or omission of Company that is released, waived or indemnified against in this Agreement.
Additional Provisions:
If any clause or provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable under any present or future law, the remainder of this Agreement will not be affected thereby. It is the intention of the Parties that if any such provision is held to be illegal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provisions as is possible and be legal, valid and enforceable. Participant, the undersigned and Company agree that:
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida.
This Agreement is performable and shall be considered to be performed in Florida.
Any and all disputes arising out of or related to this Agreement shall only be brought in a court located in Martin County, Florida, which shall be the sole and exclusive venue for any lawsuit or dispute.
This Agreement and the parties' rights shall be interpreted and governed by the substantive law of the State of Florida, without regard to conflict of laws considerations, and any applicable federal act, rule or regulation.
Jury Waiver:
The undersigned, on behalf of the undersigned and Participant, as well as on behalf of Participant's family, heirs, assigns and next of kin, do each knowingly, voluntarily and intelligently waive their constitutional right to a trial by jury with respect to any claim, dispute, conflict or contention, if any, as may arise under this Agreement or the Activities and agree that any litigation between the parties concerning, arising out of or in any way relating to the Activities or this Agreement shall be heard by a court of competent jurisdiction sitting without a jury. The parties hereto hereby confirm to each other that they have reviewed the effect of this waiver of jury trial with competent legal counsel of their choice, or have been afforded the opportunity to do so prior to signing this Agreement. THIS IS A FULL AND FINAL WAIVER OF THE RIGHT TO A TRIAL BY JURY FOR ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
As an addendum to the Cowabunga Surf and Sport Activity Waiver (above) for the use of equipment rented from Cowabunga Surf and Sport, the undersigned as “RENTER”, in consideration for the use of all rented property, the receipt of which is hereby acknowledged, voluntarily and knowingly, and executed in the above Release and Indemnification Agreement (“Agreement”) with the express intention of effecting a complete and total release and indemnification of 4 JOY VENTURES LLC dba COWABUNGA SURF AND SPORT (including its parents, subsidiaries, affiliates, relatives, agents, servants, employees, and assigns), as “COMPANY” as well as effecting other covenants and warranties as follows:
Warranties and Acknowledgment:
RENTER has conducted a visual and physical inspection of the rental equipment and has determined that it is in good and safe working condition.
If RENTER is executing this release on behalf of any minor children, that RENTER is the parent or guardian of the minor(s), with full authority to supervise the child(ren) and bind them to this Agreement.
RENTER, and if applicable, RENTER'S children, is/are familiar with the proper usage and operation of the rental equipment and/or has requested instruction from COMPANY as to the rental equipment's proper usage if RENTER or RENTER'S child(ren) is/are unsure of the rental equipment's proper usage and operation. RENTER expressly concedes that removal of the rental equipment from COMPANY'S immediate custody and control constitutes an acknowledgment that RENTER and, if applicable, RENTER'S child(ren), have received full and adequate instruction on the rental equipment's use from COMPANY or waived receipt of these instructions.
Assumption of all risks. RENTER fully understands and acknowledges that there exists certain inherent dangers and risks of damage or serious bodily injury, including death, associated with the use and operation of the rental equipment, notwithstanding the exercise of due care. RENTER further represents and warrants that the RENTER and, if applicable, RENTER'S child(ren), are in good health, and the RENTER knows of no physical illnesses or limitations preventing RENTER and, if applicable, RENTER'S child(ren), from using the rental equipment in a safe manner, with due care, and only for its intended proper use and purpose. That RENTER is renting equipment and RENTER hereby releases from all liability the COMPANY for any loss, or damages resulting therefrom, on account of injury to participants, person or property, even injury resulting in death, as outlined in the above Activity Waiver, Release, & Indemnity.
In light of these acknowledgments, RENTER fully understands, acknowledges, and agrees that all children using any child passenger apparatus or equipment in conjunction with the use of any rental equipment shall be required to wear a child safety helmet. RENTER further understands, acknowledges, and agrees that RENTER has the sole obligation and responsibility to supervise his or her child(ren) in the usage of any and all equipment rented from COMPANY.
Rental Covenants:
