WAIVER RELEASE & INDEMNITY DEED
To: Mahalo Surf Experience, founded by Felippe Bonella Dal Piero, operating world wide, situated in Bad Orb Germany with its postal address Jössertorstr. 1, 63619 Bad Orb, Germany (including its directors, employees, agents and independent contractors) (collectively and severally referred to as “Mahalo Surf Experience”)
1. ACTIVITIES: I have chosen to participate in scuba diving, snorkelling, kite surfing, kite boarding, foil boarding, surfing, wake surfing, wake boarding, tow surfing, snorkelling, spear fishing, fishing, jet skiing, wing boarding, kayaking, wind surfing, SUPing and other water sport activities (including instruction in any of these activities whether in or out of water or on any vessel) (collectively and severally referred to as “Activities”) which is organised by Mahalo Surf Experience and I acknowledge the following:
(i) I have been advised that the Activities and certain equipment and facilities used in or associated with the Activities are inherently dangerous and that some of the Obvious Risks include, (but are not limited to):
(a) exposure to unpredictable ocean current, ungroomed, unmarked or uncontrolled terrains, decompression illness, embolism, other hyperbaric injuries which may require treatment in a recompression chamber or other medical treatment, concussion, sprains, fractures, burns, drowning, death, exposure to the natural elements such as storm, wind, tide and naturally occurring and potentially harmful or fatal marine and wild life, overexertion, injuries from my lack fitness or conditioning, equipment malfunction/failures or failure to wear the required floatation device or use of protective gear, and negligence of others;
(b) the Activities may be conducted at a location that is remote either in time and/or distance from medical treatment facility;
(ii) As a consequence of these risks, I may be seriously hurt or disabled or may die from resulting injuries and my property may also be damaged.
THAT In consideration of Mahalo Surf Experience permitting me to participate in the Activities, I agree to the terms contained in this Deed:
2. ASSUMPTION OF THE RISKS: I hereby freely assume the above-mentioned risks as well as other risks not listed that are part of the Activities, and any harm, injury or loss that may occur to me or my property as a result of my participation in the Activities or during my use of facilities or equipment or any transportation to or from the Activities-including any injury or loss caused by the negligence of Mahalo Surf Experience and other Activities participants. I also understand that any equipment that I provide or may borrow or rent from Mahalo Surf Experience or any other provider I use at my own risk and that any such equipment is provided without any warranty about its condition or suitability.
3. RELEASE OF LIABILITY: I here by RELEASE MAHALO SURF EXPERIENCE FROM ALL LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS that arise in any way from injury, death, loss or harm that occur to me or to any other person or to my/ any property during the Activities or in any way related to the Activities, including the utilization of equipment or facilities and also transportation to or from the Activities. This RELEASE includes claims for the negligence of Mahalo Surf Experience and claims for strict liability for abnormally dangerous activities. This RELEASE does not extend to claims for gross negligence, intentional or reckless misconduct, or any other liabilities by Mahalo Surf Experience. I also agree NOT TO USE or make claim against Mahalo Surf Experience for death, injuries, loss or harm that occur during the Activities or are related in any way to the Activities. If, despite these terms, it is found that Mahalo Surf Experience is liable to compensate me then such liability is limited to the cost of providing the Activities in respect of which the liability arises.
4. INDEMNIFICATION HOLD HARMLESS AND DEFENSE: I agree to INDEMNIFY, HOLD HARMLESS AND DEFEND Mahalo Surf Experience against any and all claims to which Clause 3 of this Deed applies, that may be brought against Mahalo Surf Experience as a result of or in connection with any act, omission, default, failure or error on the part of Mahalo Surf Experience (including any negligent act, omission, default, failure or error) occurring wholly or partially during the course of the Activities. I agree to INDEMNIFY AND KEEP INDEMNIFIED Mahalo Surf Experience against any and all claims for my own negligence, and any other claim arising from my conduct during the Activities. I agree that Mahalo Surf Experience will not be liable for and waive any right to claim any Loss whether in tort, in contract, under statute or otherwise, for any default, failure, negligence or error on the part of Mahalo Surf Experience. I acknowledge that this Deed binds my heirs, administrators, executors, personal representatives, dependants (if any) and my successors for the benefit of Mahalo Surf Experience and its successors and assigns.
5. AGREEMENT TO FOLLOW DIRECTIONS: I agree to follow the rules for the Activities provided to me and to follow directions given to me by the leaders/guides/instructors of the Activities.
6. SEVERABILITY: I agree that the purpose of this agreement is that it shall be an enforceable RELEASE OF LIABILITY AND INDEMNITY as broad and inclusive as is permitted by laws of Fiji. I agree that if any portion or provision of this agreement is found to be invalid or unenforceable, then remainder will continue in full force and effect. I also agree that any invalid provision will be modified or partially enforced to the maximum extent permitted by law to carry out the purpose of the agreement.
7. APPLICABLE LAW: This Agreement is governed by and shall be constructed in accordance with the laws of Fiji.
8. I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS AGREEMENT BY READING IT BEFORE SIGNING IT. NO ORAL REPRESENTATIONS, STATEMENTS OR OTHER INDUCEMENTS TO SIGN THIS RELEASE HAVE BEEN MADE APART FROM WHAT IS CONTAINED IN THIS DOCUMENT. I UNDERSTAND THIS IS A CONTRACT THAT AFFECTS MY LEGAL RIGHTS AND I SIGN IT OF MY OWN FREE WILL.
Signature of customer:_______________________ Date:_______________
Name Printed:______________________________ Date of Birth______________________
If participant is a below 18, signature of parent or responsible adult is required below:
- In consideration of the minor child permitted in the Activities, I accept and agree to the full contents of this agreement. I certify that I have the authority to sign on behalf of the minor child and to make decisions for the minor child regarding this Activity. I also agree to RELEASE HOLD HARMLESS INDEMNIFY AND DEFEND Mahalo Surf Experience and its employees i.e. Mahalo Surf Experience from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to the minor child during the Activities or in any way related to the Activities. This includes any claim of the minor and any claim arising from the negligence of Mahalo Surf Experience. I understand that nothing in this agreement is intended to release claims for gross negligence, intentional or reckless misconduct, or any other liabilities that Fiji law does not permit to be excluded by agreement.
Parent/Responsible Adult Signature:________________________________________________
Child (under 16yrs) name