RELEASE OF LIABILITY AND ASSUMPTION OF RISK; ARBITRATION
The individual(s) named below (referred to as “I” or “me”) desires to participate in various aquatic activities, included but not limited to the rental and use of surfboards, wetsuits, body boards and other aquatic activity items, (whether singular or plural, hereinafter referred to as the “Activities”) provided by Rusty Surfboards Del Mar, Inc., a California corporation with offices located at 201 15th Street, Del Mar, California 92014 (the “Company”). As lawful consideration for being permitted by the Company to participate in the Activities, I agree to all the terms and conditions set forth in this agreement (this “Agreement”).
I AM AWARE AND UNDERSTAND THAT THE ACTIVITIES ARE DANGEROUS ACTIVITIES AND INVOLVE THE RISK OF SERIOUS INJURY AND/OR DEATH AND/OR PROPERTY DAMAGE. I ACKNOWLEDGE THAT ANY INJURIES THAT I SUSTAIN MAY BE COMPOUNDED BY NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF THE COMPANY (IF ANY). I ACKNOWLEDGE THAT I AM KNOWINGLY AND VOLUNTARILY RENTING THE EQUIPMENT AND UNDERTAKING THE ACTIVITIES WITH AN EXPRESS UNDERSTANDING OF THE DANGERS INVOLVED (INCLUDING BUT NOT LIMITED TO DANGERS FROM OCEAN CURRENTS, ROCKS, REEFS, AQUATIC ANIMALS, RENTED EQUIPMENT, OTHER BEACH GOERS, PHYSICAL EXERTION AND DROWNING HAZARDS), AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF THE COMPANY OR OTHERWISE.
I hereby expressly waive and release any and all claims which I may have, or which I may hereafter have, whether known or unknown, against the Company, and its officers, directors, employees, agents, contractors, affiliates, shareholders, successors, and assigns (collectively, “Releasees”), on account of injury, death, or property damage arising out of or attributable to my participation in the Activities, whether arising out of the ordinary negligence of the Company or any Releasees or otherwise. I covenant not to make or bring any such claim against the Company or any other Releasee, and forever release and discharge the Company and all other Releasees from liability under such claims. This waiver and release does not extend to claims for gross negligence, intentional or reckless misconduct, or any other liabilities that California law does not permit to be released by agreement.
I understand that by signing this release, I am waiving any and all claims, of any kind arising out of or attributable to my participation in the Activities, including those claims that may be unknown to me, or which I do not suspect to exist at this time. WITH THE INTENTION OF WAIVING ALL UNKNOWN AND UNSUSPECTED CLAIMS, I HEREBY EXPRESSLY WAIVE ALL RIGHTS, BENEFITS, AND PROTECTIONS I MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
I shall defend, indemnify, and hold harmless the Company and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party related to my participation in the Activities, including but not limited to any claims arising out of my own negligence or the ordinary negligence of the Company.
I agree to arbitrate any dispute, claim or controversy arising from or concerning the Activities contemplated herein or any terms or conditions of this Agreement and I EXPLICITLY AGREE TO WAIVE ANY RIGHT I MAY HAVE TO A JURY TRIAL. I agree that such arbitration shall be conducted by a single neutral arbitrator in accordance with the rules issued by JAMS for resolution of such disputes. The arbitration shall take place in the County of San Diego. I agree that the arbitrator shall issue a written award, that the award shall be final and binding and that the arbitrator shall have the power to award any type of relief that would be available in a court of competent jurisdiction, and that any award may thereafter be entered as a judgment in any court of competent jurisdiction.
This Agreement constitutes the sole and entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. If any term or provision of this Agreement is held invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is binding on and shall inure to the benefit of the Company and me and each party’s respective heirs, successors, and assigns. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
BY SIGNING BELOW, I ACKNOWLEDGE THAT I HAVE READ AND FULLY UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY FOR CLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF MY PARTICIPATION IN THE ACTIVITIES.
Please Confirm:
The following waiver shall be valid for one (1) year for all Rusty Del Mar rentals. If at any time you would like to revoke your waiver on a go-forward basis, please contact the manager of Rusty Del Mar.