LIABILITY WAIVER AND RELEASE AGREEMENT (“AGREEMENT”)
Last updated March 28, 2019
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. BY PROCEEDING WITH REGISTERING FOR THE ACTIVITY, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE CAREFULLY READ THE AGREEMENT AND AGREE TO THE TERMS SET FORTH BELOW.
You are registering for a strenuous physical fitness challenge, The Murph Challenge (the “Activity”), organized by Forged Threadworks, Inc. (“Forged”). In consideration of being permitted to register and/or participate in the Activity, on behalf of yourself, your heirs, assigns, executors, successors, and legal representatives, you agree to the following:
You represent and warrant that you are in good physical condition, are able to safely participate in the Activity, have trained sufficiently for the Activity, and have no medical condition that would make your participation in the Activity more hazardous. You represent and warrant that you know of no reason why you would be incapable of safely participating in the Activity, including but not limited to, prior or existing injury or known susceptibility to injury. You consent to medical care and transportation in order to obtain treatment in the event of injury to you and understand that this Agreement extends to any liability arising out of or in any way connected with the medical treatment and transportation provided in the event of an emergency and/or injury. You understand that no medical care may be available, but if it is, you assume liability for any and all medical expenses incurred as a result of your participation in the Activity, including, but not limited to ambulance transportation, hospital stays, physician, and pharmaceutical goods and services. You understand and agree that the foregoing does not obligate Forged, or anyone else, to provide medical treatment or care of any kind.
2. Waiver of Liability and Release Agreement
YOU HEREBY WAIVE, RELEASE, COVENANT NOT TO SUE AND FOREVER DISCHARGE FORGED, ITS OFFICERS, DIRECTORS, AGENTS, OWNERS, EMPLOYEES, AND ALL OTHER PERSONS ASSOCIATED WITH THE ACTIVITY, FOR ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS, COSTS, OR DAMAGES THAT YOU MAY HAVE AGAINST THEM ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR REGISTRATION AND/OR PARTICIPATION IN THE ACTIVITY, INCLUDING WITHOUT LIMITATION ANY LIABILITIES, CLAIMS, DEMANDS, ACTIONS, COSTS, OR DAMAGES CAUSED BY NEGLIGENCE OF THE ABOVE PARTIES, THE ACTION OR INACTION OF ANY OF THE ABOVE PARTIES, OR OTHERWISE.
FORGED SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FORGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, FORGED WILL NOT BE RESPONSIBLE FOR (A) THE USE OR THE INABILITY TO USE THE FORGED WEBSITES, PRODUCTS OR SERVICES; (B) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY FORGED; (C) PERSONAL INJURY OR DEATH; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) ANY OTHER MATTER RELATING TO THE FORGED WEBSITES, OR FORGED PRODUCTS OR SERVICES; OR (F) YOUR PARTICIPATION IN THE ACTIVITY. YOU AGREE THAT FORGED’S MAXIMUM LIABILITY TO YOU, FOR ANY REASON OR CAUSE WHATSOEVER, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES RECEIVED BY FORGED FROM YOU.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS LIMITING OR EXCLUDING FORGED’S OR ANYONE ELSE’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER MATTER FOR WHICH IT WOULD BE ILLEGAL OR UNLAWFUL TO EXCLUDE OR ATTEMPT TO EXCLUDE LIABILITY.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS FORGED AND ALL OTHER PERSONS ASSOCIATED WITH THE ACTIVITY, FROM ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS, COSTS, DAMAGES, OR FEES (INCLUDING ATTORNEY FEES), ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR PARTICIPATION IN THE ACTIVITY, INCLUDING WITHOUT LIMITATION ANY LIABILITY CAUSED BY NEGLIGENCE, THE ACTION OR INACTION OF FORGED, (B) YOUR USE OF ANY FORGED WEBSITE, OR (C) ANY VIOLATION BY YOU OF ANY TERMS OF THIS AGREEMENT AND/OR THE TERMS OF SERVICE LOCATED AT: WWW.FORGED.COM/PAGES/TERMS.
4. Assumption of Risk.
IN CONSIDERATION OF THE ACCEPTANCE OF YOUR REGISTRATION AND PARTICIPATION IN THE ACTIVITY, YOU ASSUME FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY DISCOMFORT, ILLNESS, INJURY, OR ACCIDENT WHICH MAY OCCUR WHILE YOU ARE TRAINING FOR THE ACTIVITY OR DURING THE ACTIVITY. YOU UNDERSTAND THAT PARTICIPATING IN THE ACTIVITY MAY BE HAZARDOUS, AND THAT YOU SHOULD NOT REGISTER AND PARTICIPATE UNLESS YOU ARE MEDICALLY ABLE AND PROPERLY TRAINED. YOU SHOULD CONSULT YOUR DOCTOR BEFORE PARTICIPATING IN THE ACTIVITY. IT IS YOUR RESPONSIBILITY TO CHECK AND TO ENSURE THAT YOU ARE AT ALL TIMES MEDICALLY AND PHYSICALLY FIT TO PARTICIPATE IN THE PHYSICAL ACTIVITIES AND MOVES RELATED TO THE ACTIVITY. YOU ACKNOWLEDGE AND AGREE THAT PARTICIPATION IN THE ACTIVITY CARRIES WITH IT CERTAIN INHERENT RISKS AND DANGERS THAT CANNOT BE ELIMINATED COMPLETELY RANGING FROM RISK OF MINOR DISCOMFORT TO CATASTROPHIC INJURIES INCLUDING PERMANENT DISABILITY AND DEATH. YOU ARE AWARE OF AND ASSUME ALL RISKS ASSOCIATED WITH PARTICIPATING IN THE ACTIVITY, INCLUDING WITHOUT LIMITATION RISKS OF PERMANENT INJURY OR DEATH.
5. Use of Likeness
You hereby irrevocably grant Forged permission to record your voice and photograph you in conjunction with the Activity. You understand and agree that the term “photograph” as used herein encompasses both still photographs and video recordings. You further grant Forged permission to use your photograph, voice, and likeness taken in conjunction with the Activity, in any form, including edited versions, in or over any medium including without limitation streaming audio and/or video over the internet, broadcast, cable, and/or satellite transmissions, worldwide for any legitimate purpose including, without limitation, any commercial purpose, without compensation to you. Your further waive any right of inspection of any such recordings and photographs. You understand that any such recordings and photographs recorded by, or used by, Forged shall become the sole property of Forged and/or the photographer, as applicable.
- (a) Governing Law; Consent to Jurisdiction. You agree that the laws of the State of California will apply to all matters relating to this Agreement without regard to the conflict of laws principles thereof. You irrevocably consent to the exclusive jurisdiction for any dispute relating to this Agreement in the courts of California, and you further agree and expressly consent to the exercise of personal jurisdiction over you in the courts of California, in connection with any such dispute including any claim involving Forged. You further agree that venue for any such dispute is proper in the County of San Diego, California.
- (b) Severability. You further expressly agree that this Agreement is intended to be as broad and inclusive as is permitted by applicable law, and if any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and effect of the unenforceable provision and the Agreement shall be deemed amended accordingly.
- (c) Interpretation. This Agreement shall not be construed for or against either party, and any such common law or other presumption is hereby disclaimed.
- (d) Entire Agreement. This Agreement, along with the participant’s registration, contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all negotiations, prior discussions, agreements, arrangements, and understandings, written or oral, relating to the subject matter of this Agreement, and there are no other covenants, agreements, representations or promises, whether written or oral, among the parties hereto.
BY CONTINUING WITH THE REGISTRATION PROCESS AND THEREBY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE AFFIRMING THAT YOU HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND ITS TERMS. YOU UNDERSTAND THAT YOU ARE GIVING UP SUBSTANTIAL RIGHTS, INCLUDING THE RIGHT TO SUE. YOU ACKNOWLEDGE THAT YOU ARE AGREEING TO THIS AGREEMENT FREELY AND VOLUNTARILY, AND INTEND BY YOUR ACCEPTANCE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.