RIDING ON THE WAVESURFER® CONSTITUTES AN EXTREME SPORT AND HIGH-RISK RECREATIONAL ACTIVITY. ENGAGING IN SHEET WAVE SURFING ON OR NEAR THE WAVESURFER® MAY RESULT IN PHYSICAL OR MENTAL INJURY, ILLNESS, DISEASE, OR DEATH.
By signing below, you affirm that a) if you are a first-time Wavesurfer® patron, you must start with bodyboarding before stand-up riding, b) you have read and understood all Wavesurfer® attraction instructions and signage, and c) you have comprehended the disclosed risks, willingly accept them, and agree to the terms of this Voluntary Acknowledgment of Risks, Release of Liability and Indemnity Agreement (this “Agreement”).
My signature acknowledges that I or the minor for whom I am a parent or legal guardian (referred to as ‘I’, ‘me’ or ‘my’) have voluntarily chosen to participate in the sheet wave surfing attraction known as the Wavesurfer® or use a BodyBoard or Flowboard (referred to as the ‘Activities’) and utilize the facilities at Oasis Water Park, Billings, Montana, including but not limited to the Wavesurfer® (referred to as the ‘Facilities’). In consideration of permission to participate in the Activities and use the Facilities, I hereby acknowledge, agree, promise, and covenant on behalf of myself, my heirs, devisees, assigns and legal representatives (the “Releasing Parties”) with Better Billings, Foundation, a Montana nonprofit corporation (“Operator”), including its related companies, as well as each of their directors, officers, members, intellectual property holders, agents, attorneys, and employees, past and present, and each of them (referred to as ‘Releasees’) as follows:
ACKNOWLEDGEMENTS OF RISKS:
I UNDERSTAND AND ACKNOWLEDGE that the Activities I am about to engage in carry certain known and unforeseen risks that could result in PHYSICAL OR MENTAL INJURY, SERIOUS INJURY TO HEAD, NECK, BACK, HIPS, ARMS, LEGS OR DEATH, ILLNESS OR DISEASE, OR OTHER DAMAGE
to me or my property. I understand and acknowledge that these risks may lead to claims against Releasees. Nevertheless, I voluntarily accept and assume these risks due to the thrill, excitement, and benefits of the Activities, and I agree that the benefit of the Activities outweighs the risks, which include but are in no way limited to:
(1) Acts, omissions, or negligence of any degree by Releasees, their agents, or employees; (2) Inherent risks in the Activities, including but not limited to injuries such as a) broken bones, b) dislocations, c) torn ligaments and tendons, d) sprains and strains, e) cuts to the head, body and/or limbs, f) torn nails, (g) head injuries, (h) ingestion or aspiration of water and drowning, and i) bumps and bruises sustained while participating in these extreme sports attractions; (3) Failure to follow instruction, signage or supervision regarding the Activities or use of the Facilities (4) Behavior of co-participants; (5) Accidents or incidents in the Facilities, including but not limited to accidents or incidents in wet areas, such as pool decks, tiled, concrete or other wet surfaces; and/or (6) First aid, emergency treatment, or services rendered or failed to be rendered by Releasees.
I UNDERSTAND AND ACKNOWLEDGE that the above list is not exhaustive, and that other known or unknown, identified or unidentified, anticipated or unanticipated risks may also result in injury, death, illness, disease, or damage to me or my property. I FURTHER ACKNOWLEDGE that I am in good physical and mental health, and not suffering from any condition, disease, or disablement which would or could potentially affect participation in the Activities or use of the Facilities. Additionally, I acknowledge that Releasees are providing recreational services.
VOLUNTARY ACCEPTANCE AND ASSUMPTION OF RISK AND RESPONSIBILITY:
I EXPRESSLY AND VOLUNTARILY AGREE, COVENANT AND PROMISE TO ACCEPT AND ASSUME ALL RESPONSIBILITIES AND RISK FOR INJURY, DEATH, ILLNESS OR DISEASE OR
DAMAGE to me or to my property arising from participation in the Activities or use of the Facilities.
RELEASE AND INDEMNITY:
I VOLUNTARILY RELEASE AND FOREVER DISCHARGE AND COVENANT NOT TO SUE Releasees
from any and all liability, claims, demands, actions, or rights of action, which are related to, arise out of, or are in any way connected with participation in the Activities or use of the Facilities, including, but not limited to any and all negligence or fault of Releasees. I UNDERSTAND THIS IS A RELEASE OF LIABILITY THAT IS VALID FOREVER and will apply to all current and future participation in the Activities or use of the Facilities. I understand that this RELEASE OF LIABILITY will prevent the Releasing Parties from bringing any action at law, suit in equity, or other jurisdictional proceeding or making any claim for damages, injury or death in the event of damage, injury or death arising from participation in the Activities or use of the Facilities. I FURTHER AGREE, PROMISE AND COVENANT TO HOLD HARMLESS AND TO INDEMNIFY Releasees, and all other persons or entities from all defense costs, including attorneys’ fees, or any other costs incurred in connection with claims for mental or bodily injury, wrongful death or property damage that may be filed by any Releasing Party. Such indemnity and defense obligation shall further extend to any claim, loss or lawsuit which alleges that I negligently or intentionally caused any injury, death or damage to spectators or other third parties in the course of my participation in the Activities.
RELEASE OF ALL RIGHTS RELATED TO MY AUDIO AND PHOTOGRAPHIC IMAGE:
I hereby agree to a blanket release of all rights related to my audio and photographic image that may arise out of my participation in the Activities or use of the Facilities. I understand that this Agreement includes any and all marketing, promotion or advertising that may occur anywhere and anytime on any media as later used by Releasees. Further, I hereby grant full permission for Releasees, to record any or all of my participation, and my name and likeness in the Activities for photos, motion pictures, TV, radio, Internet, recordings, videotapes, and other media, known or unknown, and to use them in perpetuity, no matter by whom taken or recorded, in any manner for publicity, promotions, advertising, trade or commercial purposes, without any reimbursement of any kind due to me, or the need to pay me any fee or compensation whatsoever other than my use of the Facilities. I agree that Releasees will be the exclusive owner of all rights, including but not limited to the copyrights, in and to the recordings and the results and proceeds of my participation hereunder (“Materials”). I agree that the Materials shall constitute a “work made for hire” pursuant to the United States Copyright Act. To the extent any of the Materials are not considered a “work made for hire,” I hereby assign all rights in the Materials to Releasees. Such assignment shall be deemed irrevocable and coupled with an interest.
ENTIRE AGREEMENT, SEVERABILITY AND VENUE:
I understand that this is this Agreement between the undersigned and Releasees, and that it cannot be modified or changed in any way by the representations or statements of Releasees, or by the undersigned. If any term, condition, agreement or other provision of this Agreement, or the application thereof to any party or circumstances, shall be held to be invalid or unenforceable to any extent in any jurisdiction, then the remainder of this Agreement and the application such term, condition, agreement or other provision in any other jurisdiction or to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term, condition, agreement and other provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. This Agreement shall be governed by the laws of the State of Montana, without regard to conflicts-of-laws principles. Any action or proceeding seeking to enforce any provision of, or based upon any rights arising out of, this Agreement must be brought against either of the parties in the Thirteenth District Court for Yellowstone County, Montana. Each of the parties consents to the jurisdiction of such court in any such action or proceeding and waives any objection to venue.
I have taken the time to read this Agreement and I understand its contents. The purpose of this Agreement is for the Releasing Parties to grant a waiver in favor of the Releasees to the greatest extent allowed by Montana Code Annotated Section 27-1-523 or other applicable law. By signing this Agreement, I may be waiving my legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages I may suffer due to the provider's ordinary negligence that are the result of the provider's failure to exercise reasonable care.
