WAIVER OF LIABILITY, RELEASE, AND ASSUMPTION OF RISK AGREEMENT
This Waiver of Liability, Release, and Assumption of Risk Agreement (“Waiver”) is entered by the undersigned parties as of the date corresponding such parties’ signatures herein below, and if no such date is written, as of the earliest date necessary to give valid and binding effect to the intent of this Waiver.
I, (hereinafter “Participant”), desire to board, travel on, work on, otherwise occupy, interact with, or be near, as applicable, Vessels (defined below) associated with Hui O WaÊ»a Kaulua (hereinafter “HOWK”), a Hawaii nonprofit corporation, for any and all purposes for which I board such Vessels, including without limitation, for any work, program, leisure, or volunteering activities conducted thereon or related thereto. As used herein, “Vessel” and “Vessels” shall include any and all vessels, whether large or small, that are propelled on water and owned, leased, operated, or supervised by HOWK or a third-party pursuant to an agreement between such third-party and HOWK, whether written or oral, including without limitation, the double-hulled Polynesian sailing canoes and escort vessels that may be accompanying such canoes.
As an absolute and unwaivable condition to, and as good and valuable consideration for HOWK’s agreement to permit, Participant to board, travel on, work on, otherwise occupy, interact with, or be near, a Vessel, as contemplate herein above, Participant understands and agrees to each and every term of this Waiver and affirms that Participant is entering this Waiver voluntarily and free of duress, with the express intent of knowingly effecting (for the benefit of HOWK) the waivers, assumptions, and other agreements contained herein below.
Participant acknowledges, understands, and agrees that there are inherent risks and dangers in engaging in any activities related to Vessels, whether docked, at sea, or otherwise, and that even if a Vessel, gear, and equipment are believed to be in good operating condition upon boarding a Vessel, unknown or new breaks, failures, damage, or malfunctions may be discovered or occur at any time. Furthermore, accidents of every kind and nature may occur on or in relation to a Vessel, due to weather, sea conditions, human error (negligence), hidden/unknown conditions, or otherwise, and people and property (including without limitation, Participant and Participant’s property) may be nominally or severely injured or damaged, or lost or deceased, as a result thereof or due to other circumstances or acts outside of HOWK’s control, including without limitation, the intentional or malicious acts of other persons or acts of nature.
Participant, on Participant’s behalf and for Participant’s heirs, successors, assigns, and anyone otherwise claiming by or through Participant, hereby forever and irrevocably waives and releases any and all claims, causes of action, administrative actions, defenses, and demands, of any and every kind and nature, whether known or unknown, now existing or hereafter accruing, which are in any way related to boarding, traveling on, working on, otherwise occupying, interacting with, or being near, any Vessel, regardless of the manner and means by which the same has accrued, including without limitation, those related to damages, other relief (including without limitation, the right to obtain judgment liens against property), or compensation of any kind, for any alleged or actual injuries to Participant’s person or property, resulting from any breaks, failures, damage, or malfunctions of the Vessel, gear, or equipment, or from any other cause, in connection with Participant boarding, traveling on, working on, otherwise occupying, interacting with, or being near, any Vessel, and hereby forever and irrevocably releases and holds harmless, HOWK, its successors, assigns, directors, officers, employees, agents, and all other individuals and entities that have entered an agreement to provide (or receive) services or goods to (or from) HOWK, and the property (including without limitation, the Vessels) of each of the foregoing persons and entities, from such claims, causes of action, administrative actions, defenses, and demands, contemplated herein above, and from any and all liability for such injuries or related thereto.
Participant, on Participant’s behalf and for Participant’s heirs, successors, assigns, and anyone otherwise claiming by or through Participant, agrees this Waiver is provided for the benefit of HOWK, its successors, assigns, directors, officers, employees, agents, and all other individuals and entities that have entered an agreement to provide (or receive) services or goods to (or from) HOWK or otherwise in connection with any Vessel, including without limitation the captain and crew of each Vessel, and each of the foregoing persons and entities shall be a third-party beneficiary of this Waiver and shall otherwise not be liable to Participant or Participant’s heirs, successors, assigns, or anyone otherwise claiming by or through Participant, as contemplated herein above.
Participant agrees to indemnify HOWK, its successors, assigns, directors, officers, employees, agents, and all other individuals and entities that have entered an agreement to provide (or receive) services or goods to (or from) HOWK or otherwise in connection with any Vessel, and to otherwise compensate the same for any injury, damage, loss, reasonable costs (including without limitation, reasonable attorneys’ fees) suffered or incurred thereby or (as to HOWK) to a Vessel, as a result of any act or omission of Participant.
THIS WAIVER IS INTENDED TO BE AS BROAD AS APPLICABLE LAW PERMITS, AND THEREFORE, INCLUDES, BUT IS NOT LIMITED TO, A RELEASE OF ANY AND ALL CLAIMS OF NEGLIGENCE, CARELESSNESS, RECKLESSNESS, AND FAILURE TO SUPERVISE ON THE PART OF HOWK OR ANY PERSON OR ENTITY ACTING ON BEHALF, AT THE DIRECTION, UNDER THE SUPERVISION, OR FOR THE BENEFIT OF HOWK.
PARTICIPANT AGREES THAT PARTICIPANT BOARDS, TRAVELS ON, WORKS ON, OTHERWISE OCCUPIES, INTERACTS WITH, AND SHALL BE NEAR, A VESSEL, IN ITS “AS-IS” CONDITION, AND WITH FULL AND ABSOLUTE ASSUMPTION OF ANY AND ALL RISKS, WHETHER KNOWN OR UNKNOWN, AND SUBJECT TO THE EACH AND EVERY TERM OF THIS WAIVER.
This Waiver shall be binding to the fullest extent by law and shall be governed by the laws of State of Hawaii. Copies of this fully executed Waiver shall be deemed originals for all purposes. This Waiver may be executed by traditional, electronic or digital signature. If any provision of this Waiver is found to be unenforceable by a court of competent jurisdiction, the remaining terms shall remain enforceable and such court shall interpret this Waiver in a manner that gives the fullest effect to the intent expressed by this Waiver prior to the removal of such provision.
I HAVE READ THIS WAIVER OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, AND I FULLY UNDERSTAND ITS TERMS, AND UNDERSTAND THAT I HAVE GIVEN UP LEGAL RIGHTS BY SIGNING HEREIN BELOW, WHICH I FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT AND AFTER BEING PROVIDED A FAIR OPPORTUNITY TO CONSULT MY LEGAL COUNSEL AND OTHER ADVISORS.