Vessel Release of Liability & Hold Harmless Agreement (“Waiver”)
1. Definitions. As used herein the following terms as used in this Waiver shall have the meanings as set forth in this Paragraph 1. 1.1. “Owner” as used herein shall mean the owner of the Vessel, namely:
1.2. “Vessel” as used herein shall mean the vessel owned by the Owner upon which Participant desires to board and ride, namely:
1.1. “Participant” as used herein shall mean the person, identified on the signature page to this Agreement who desires to board and ride the Vessel as: 1.1.1. – Guest for pleasure purposes (“Guest”)
1.1.2. – Guest Crew Member for pleasure purposes including the right to participate in the operation of the Vessel. (“Guest Crew”)
1.1.3. – Independent Contractor Crew Member for racing purposes involved in the operation of the Vessel. (“Racing Crew”)
1.1.4. – Independent Contractor Deliver Crew Member for transporting purposes involved in the operation of the Vessel. (“Transport Crew”)
2.1. Changing water flow, tides, currents, wave action and ship’s wakes;
2.2. Injury from slipping or falling on decks, steps, docks, masts, rigging or rails;
2.3. Collisions with, including not limited, any of the following: 2.3.1. other participants,
2.3.2. the Vessel, including its booms,
2.3.3. other watercraft,
2.3.4. man made or natural objects,
2.3.5. shuttle boat/tender;
2.4. wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature;
2.5. my sense of balance, physical condition, ability to operate equipment, swim and / or follow directions:
2.6. collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and / or drowning;
2.7. The presence of insects and marine life forms;
2.8. equipment failure or operator error;
2.9. heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration;
2.10. fatigue, chill and / or reaction time and increased risk of an accident.
3. I fully understand that the Vessel has limited medical facilities and that in the event of illness or injury, appropriate care must be summoned by radio and treatment will be delayed until I can be transported to a proper medical facility. I agree in advance to these conditions.
4. Representations and Warranties of Participant. 4.1. I assert that I am physically fit to ride, and if a Racing Crew to crew, on the Vessel and I will not hold the Vessel and/or Owner or their shareholders, members, managers, employees, agents or other associated personnel responsible if I am injured while embarking, disembarking or riding upon the Vessel as a result of ANY act, or failure to act (medical, accidental or otherwise) occur while riding and/or participating during the voyage.
4.2. I assert that if I am a Racing Crew Participant or a Transport Crew Participant, I am acting as in independent contractor and not as an employee of the Owner or the Vessel for any purpose whatsoever, and I am therefore solely responsible for my own health insurance coverage, and I have my own health insurance coverage that covers any injury I may suffer as a Racing Crew Participant aboard the Vessel and I am solely responsible for any and all tax liabilities incurred as a result of my services to the Owner or the Vessel. I understand and agree to file any necessary tax returns to report income from the payments made by Owner to me for the services rendered to either the Owner or the Vessel. In the event that the United States Internal Revenue Service should determine that I, according to IRS guidelines, am an employee subject to withholding and social security contributions, I shall acknowledge, as I acknowledge herein, that all payments to the me are gross payments, and that I am responsible for all income taxes and social security payments thereon. Racing Crew Participant understands and agrees that Crew Member shall not be treated as an employee for purposes of federal, state or local income tax withholding or for purposes of the Federal Insurance Contribution Act, the Social Security Act, the Fair Labor Standards Act, the Federal Unemployment Tax Act, or any worker’s compensation law of any state, and/or for purposes of benefits provided to employees under any employee benefit plan. Owner shall not withhold from Racing Crew Participant’s Compensation either Federal Insurance Contributions Act (FICA) tax or Federal Unemployment Tax Act (FUTA) tax or any other Federal or State income tax or any other amount under any other state or federal benefits program as all of the foregoing taxes and costs shall be the sole and exclusive responsibility of Crew Member to pay. Racing Crew Participant acknowledges that Racing Crew Participant will not be entitled to participate as an employee in or under any employee benefit plan of the Owner or any other employment rights or benefits available to or enjoyed by active employees of the Owner, including 401(k) or vacation benefits. Racing Crew Participant, or Racing Crew Participant’s heirs or assigns, shall not be entitled, by virtue of Services performed pursuant to this Agreement, to any benefits under any employee benefit plan or plans maintained by the Owner for its active employees. I declare that I am not a “seaman” for purposes of maintenance and cure provisions under either the Jones Act or maritime law.
4.3. I carry my own health insurance coverage that will cover any injury that I might suffer while participating in this voyage and agree to look only to my insurance policy for benefits with respect to any injury that I might suffer during this voyage.
Release of Liability and Waiver of Claims. The undersigned Participant, being aware of the Risks and Hazards of sailing and boating activities in general, including embarking and disembarking therefom, knowingly and willing desire to participate in sailing activity on board the Vessel, for the Participant or, the Participant’s heirs, assigns, officers, directors, agents, employees and beneficiaries, releases the Vessel and the Owner and Owner’s heirs, assigns, officers, directors, attorneys, agents, employees and beneficiaries from any and all liability, damages, claims, causes of action and responsibility with respect to the undersigned’s injury, death, damage or other claim relating to the undersigned’s participation as a Guest, Guest Crew, Racing Crew or Transport Crew on board the Vessel during any sailing or boating activity on board the Vessel or incidental thereto including but not limited to entering upon and disembarking from the Vessel or even being aboard the Vessel at rest in or out of harbor or port or with respect to the Vessel at any other time on any body of water in any location world-wide. 5.1. The undersigned freely agrees to this all-encompassing release of liability with the understanding that sailing is a highly dangerous activity, especially when conducted in the open ocean or in the waters of a foreign country or other uncharted waters. Further, the undersigned assumes all Risks and Hazards of any kind, including injury or death that the undersigned might suffer by virtue of the undersigned’s participation as a guest, passenger, crew member or captain on the Vessel during a voyage, or while at rest, with respect to the Vessel at any other time on any body of water in any location world-wide.
5.2. Further, the undersigned will indemnify, defend and hold harmless the Vessel, Owner and Owner’s heirs, assigns, officers, directors, agents, employees, attorneys and beneficiaries from any and all liability, damages, claims, causes of action and responsibility incident to any injury, death, damage or loss suffered as a result of the undersigned’s participation either as a Guest, Guest Crew, Transport Crew or Racing Crew on Vessel during the voyage or with respect to the Vessel at any other time on any body of water in any location world-wide.
6. This Release of Liability & Hold Harmless Agreement will be interpreted under and controlled by applicable California law. Any litigation involving the undersigned and Owner will be brought in a California state court, in the County of San Mateo and controlled by California law.
Arbitration of Disputes. Any dispute, controversy or claim relating to this Agreement, including but not limited to the interpretation thereof, or its breach or existence, and any claims for damages for any injury, which cannot be resolved amicably by the Participant and Owner shall be referred to arbitration, which shall be the sole and exclusive forum for resolution and settlement of any dispute, controversy or claim between the parties. The arbitration shall be conducted in accordance with the Rules of the American Arbitration Association then in force and shall be held at Redwood City, California, unless the Buyer and Seller mutually agree upon another place. Any award of the arbitral authority shall be final and binding upon the Participant and Owner with respect to all disputes, claims or controversies therein and the Participant and Owner shall comply without delay. The arbitral authority shall, in its award, fix and apportion the costs of arbitration. The award of arbitral authority may be enforced by any court having jurisdiction over the party against which the award has been rendered or where assets of the party against which the award has been rendered can be located. The Buyer and Seller further understand and agree that arbitration shall be the sole and exclusive forum for resolving any dispute, controversy or claim relating to this Agreement and that neither party shall resort to any court except to compel arbitration, refer questions of law or to confirm, vacate or modify any such award.
In Witness Whereof, the Participant by the Participant’s signature below acknowledges that Participant is physically and mentally able to participate in the sailing in which I am about to engage and that I have read and understood the terms of this Waiver and agree to be bound thereby understanding that Owner’s allowance of the Participant to board the Vessel is conditioned upon Participant’s execution of this Waiver.