WARNING, LIABILITY RELEASE, WAIVER OF CLAIMS AND ASSUMPTION OF RISK AGREEMENT
THIS IS A BINDING LEGAL AGREEMENT, so I will read it carefully. I am signing this agreement on behalf of myself and on behalf of all the minors listed below, as their parent and/or guardian (referred to collectively as “I”).
Now, in consideration of being permitted to participate in snorkeling, surfing, swimming, electric bike tours, hiking tours, and/or to rent peddling or electric bicycles, and/or to rent snorkeling gear, beach equipment, and/or other water equipment (collectively, the “Activities”), I do hereby state that I have read, understood and agree to each of the following terms, conditions, waivers and warnings:
I accept: (a) for use “as is” any peddling bicycles, electric bicycles, snorkel equipment, surfboards, adventure sports equipment, and/or beach equipment (collectively, the “Equipment”) rented from Frogman Charters, Inc., a Hawaii corporation, d/b/a Boss Frog's Dive & Surf, Kimo’s Electric Bike Tours and/or Kimo’s Bike Shop, and/or Frogman Marketing, LLC, a Hawaiian limited liability company, d/b/a Hawaiian Style Activities (collectively, the “Frogman Entities”); (b) full and sole responsibility for the care of the Equipment while in my possession; and (c) full and sole responsibility for the replacement at full retail value of any Equipment not returned or that is damaged beyond ordinary wear and tear while rented or during a tour.
I understand, I am informed, and I am warned that (a) participation in the Activities and/or use of Equipment in or near the ocean, shores, bike paths or bike areas, paths, sidewalks, trails, public roads, beaches, bays, shorelines, roadways, such as snorkeling, swimming, surfing, body surfing, body boarding, bicycling, stand up paddleboarding, skim boarding, and/ or the use of masks, snorkels, fins, surfboards, bodyboards, paddleboards, skim boards, flotation devices, beach chairs, umbrellas and other equipment pose inherent and other risks that could cause PERSONAL INJURY, PARALYSIS, DEATH or PROPERTY DAMAGE including, but not limited to, death or injury from sharks, jellyfish, Man O’ Wars, hydroids, monk seals or other marine life and/or marine conditions, drowning, falling, crashing or vehicular accidents; (b) dangerous conditions may exist or arise at any time without warning, including, but not limited to, loose, wet, uneven, and unsafe biking and hiking terrain, vehicular traffic and pedestrians, high surf, strong waves, large isolated or rogue waves, surging water, coral reef, shore break, waves breaking in shallow water, changing tides, strong currents and/or rip currents, undertows, rain, strong winds, and/or offshore winds and adverse weather conditions; (c) I may suffer heat and weather exposure, dehydration, extreme exertion, motion sickness, sunburn, loss of consciousness, heart attack, panic, hyperventilation, difficulty breathing, water inhalation, physical and psychological stress, migraines, seizures, pulmonary edema, eye, ear and sinus injury, head trauma, harmful or deadly contact with marine life, vehicular traffic, collisions with buoys, propellers, sharp rocks, debris, reefs, shores, boats, equipment, and other persons or equipment, objects, bruises, bites, cuts, contusions, burns, strains, sprains, fractures, permanent scars, disfigurement, concussions, paralysis, surfer’s myelopathy, staph infection, anaphylactic shock and/or death; (d) 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, diabetes, pregnancy, or sinus issues, I shall consult my physician before using the Equipment or participating in any Activities; (e) the bikes do not have visibility enhancements such as lights or reflectors; (f) dangerous animals are located in Hawaiian waters and there have been monk seal, moray eel, shark and other animal bites resulting in serious injury and death; (g) being bitten by a dangerous animal is a risk of using this Equipment anywhere in the ocean; (h) I shall always swim or board with a buddy and stay close to my buddy; (i) I shall avoid swimming in turbid or murky water; (j) I shall always swim or board close to shore; (k) I shall never paddleboard in offshore winds or out further than I can swim back in to shore; and (l) the above described risks are not complete and other risks or events that are inherent, known or unknown, anticipated or unanticipated, may result in PERSONAL INJURY, PARALYSIS, DEATH or PROPERTY DAMAGE.
I agree (a) that the Equipment is solely for recreational use and is not intended or guaranteed to ensure my personal safety in or near the ocean or shore, on bike paths or bike areas, paths, sidewalks, trails, public roads, beaches, bays, shorelines, and roadways, and is not a substitute for being a strong swimmer in good physical condition, or having the ability to ride a bicycle; (b) that I understand the proper use and function of the Equipment; (c) that I will use the Equipment in a reasonable and safe manner and only for its intended use; (d) that 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 store of the Frogman Entities; (f) that I will not turn my back on the ocean when I am near a shoreline; (g) that offshore winds can blow me offshore while paddleboarding; (h) that I will abide by all traffic laws; (i) that I will be vigilant and use common sense and good judgment at all times; and (j) that I am responsible for learning, researching and understanding the skills and conditions that are inherent in the environment in which I will be using the Equipment, including, but not limited to, the natural conditions of the ocean, shores, roads, off roads, bike paths or bike areas, paths, trails, hills or mountains.
I certify that (a) my use of the Equipment and/or participation in the Activities is purely voluntary; (b) I am in good physical health; (c) I am physically able to use the Equipment and/or participate in the Activities safely; (d) I have experience safely riding a bicycle up to 20 miles per hour; (e) I have chosen to use the Equipment and/or participate in the Activities having full knowledge of the risks, dangers and hazards; and (f) if I am renting an electric bicycle, that I know how to ride a bike. Notwithstanding the risks, dangers and hazards: (i) I shall obey all laws, including, but not limited to, traffic laws; (ii) I am aware that flotation devices are have been offered to rent for water activities, or, in the case of biking, helmets are included with the rental at no charge and I hereby commit to wear a helmet at all times during use of the bicycle; and (iii) I voluntarily and expressly assume all risks of PERSONAL INJURY, PARALYSIS, DEATH or PROPERTY DAMAGE that may result from use of the Equipment or participation in the Activities.
I hereby agree to (a) HOLD HARMLESS, DEFEND AND INDEMNIFY the Frogman Entities, and their affiliates and subsidiaries, and each of their respective employees, officers, directors, owners, agents, contractors or assigns, and the Equipment manufacturers and distributors (collectively, the “Released Parties”), for any and all claims for PERSONAL INJURY, PARALYSIS, DEATH or PROPERTY DAMAGE related to use of the Equipment and/or participation in the Activities; and (b) FULLY RELEASE AND DISCHARGE the Released Parties from any and all claims based on negligence, breach of warranty, failure to warn, gross negligence, contract or other legal theory, and for damages for injuries related in any way to the selection, maintenance, adjustment or use of the Equipment and/or participation in the Activities.
I agree that ONLY the person signing or otherwise identified in this agreement as a minor will use the Equipment and/or participate in the Activities. Should any other person with permission of any undersigned use the Equipment and/or participate in the Activities, I agree to be personally liable and financially responsible for all loss or damage to persons or property related to the unauthorized use of the Equipment and/or participation in the Activities, and I agree to hold harmless, defend and indemnify the Released Parties for any such loss or damage to persons or property related to the unauthorized use of the Equipment and/or participation in the Activities.
If any provision of this agreement is subsequently determined to be illegal, invalid or unenforceable under the law, I understand and acknowledge that said provision(s) shall be severed from this agreement and the remaining portions hereof shall survive intact and remain in full force and effect.
I hereby agree that this agreement 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 agreement or otherwise between the parties shall be 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, CONDITIONS AND WARNINGS; THAT THIS IS A BINDING AGREEMENT THAT IS ENFORCEABLE AGAINST ME AND EACH MINOR LISTED BELOW, 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 AGREEMENT AND EXECUTE IT BY MY OWN FREE ACT.
