WAIVER AND RELEASE, INDEMNIFICATION,
CONSENT TO MEDICAL ATTENTION, AND GRANT OF RIGHTS
By purchasing a ticket for and participating in the historical culinary walking tour (the “Tour”) offered by TrèsRosé Ltd. d/b/a Bermuda Food Tours (the “Company”), I, and if I am not yet 18 years old, my parent or legal guardian, agree to be bound by each of the following provisions of this waiver, release of liability, indemnification, consent to medical attention, and grant of rights (this “Waiver”):
- Voluntary Participation. I understand and confirm that my participation in the Tour is voluntary and this agreement has been entered into at arm’s length and is to be interpreted as an agreement between two parties of equal bargaining strength.
- Comprehension of Risk. I fully comprehend and accept all of the risks associated with my participation in the Tour including, without limitation, injury or death resulting from exposure to unfavorable weather conditions, temperature, lack of hydration, injuries, or death including those arising from accidents or mishaps caused by or attributable to myself, other participants, motor vehicles, the condition of the Tour location and terrain, or pedestrians. I acknowledge that the Tour may involve a test of my physical and/or mental limits, and I warrant to the Company that I am in good health and suffer from no physical or mental condition that would make me especially susceptible to injury or disability while participating in the Tour. I understand that the Tour takes place in public venues under conditions largely beyond the Company’s control, and I acknowledge that the Tour will visit independent restaurants and/or venues not owned or controlled by the Company (“Host Businesses”). I acknowledge that any alcohol offered or provided by any Host Business is not offered or provided by the Company. I accept all of the risks associated with consumption of food products and alcohol offered or provided by the Host Businesses including, without limitation, food sickness, allergic reactions, choking, or alcohol consumption. I acknowledge the Company cannot guarantee or ensure the performance of any Host Business or that weather conditions will be favorable.
- Assumption of Risk. I assume all risks, known and unknown, foreseeable and unforeseeable, in any way connected with my participation in the Tour. I accept personal responsibility for any liability, injury, loss, or damage in any way connected with my participation in the Tour. If alcohol is offered or provided by any Host Business, I accept full responsibility for complying with Bermuda law regarding consumption of alcohol, and if consuming alcohol, monitoring and/or limiting my alcoholic beverage intake, and I acknowledge that the Company is not providing, offering, selling or serving to me any alcoholic beverage and is not responsible for verifying that I may legally consume alcohol under Bermuda law.
- Release of Liability; Limitation of Damages. I hereby knowingly and voluntarily forever and unconditionally release the Company, Host Businesses, and their respective affiliated entities, parent companies, subsidiaries, present and former employees, owners, officers, members, managers, partners, contractors, insurers, shareholders, and directors (collectively “Released Entities”), from any and all claims, actions, damages, liabilities, losses, costs, and expenses (including, without limitation, attorney’s fees) for death, injury, loss of or damage to property, (collectively “Claims”) in any way arising out of my participation in the Tour, including, without limitation, any and all Claims resulting from the negligence of the Released Entities or the consumption of alcohol. The Company’s liability to me will be limited to actual damages arising from the Company’s gross negligence or willful misconduct in the performance of its duties and responsibilities hereunder; provided, however, under no circumstance shall my damages in connection with my participation in the Tour be greater than [$500]. Recovery of such amount shall be my sole and exclusive remedy. All liability arising out of my participation in the Tour is cumulative and not per incident. In no event shall the Company be liable for any special, incidental, punitive, or consequential damages or other indirect damages, even if the Company has been informed of the possibility thereof.
- Indemnification; Personal Liability. I agree to defend and indemnify the Released Entities from any and all Claims as incurred of any kind whatsoever in any way arising out of my participation in the Tour. In the event that any damage to equipment or facilities of the Company or Host Businesses occurs as the result of my willful actions, neglect, or recklessness, I acknowledge and agree to be held personally liable for any and all costs associated with repair or replacement reasonably necessary due to such damage to equipment or facilities.
- Binding Effect. This Waiver shall be binding upon my next of kin, heirs, executors, administrators, assigns, and personal representatives and shall inure to the benefit of the Company, its successors and assigns. This Waiver and the Terms and Conditions found on the Company’s website constitute the entire agreement and understanding between me and the Company, and cancels, terminates, and supersedes any prior agreement or understanding relating to the subject matter hereof. None of the provisions of this Waiver can be waived or modified except by prior written consent of the Company. Failure of the Company to enforce any of the provisions of this Waiver at any time shall not act as a waiver to enforce its rights under this Waiver for same or similar acts at any subsequent time.
- Consent to Medical Treatment. In the event that I should require medical care or treatment, I authorize Company to provide to me, through medical personnel of its choice, reasonable medical assistance, transportation, and emergency medical services. I agree to be financially responsible for any costs incurred as a result of such treatment. This consent does not impose a duty upon the Company to provide such assistance, transportation, or services.
- Inappropriate Behavior. I acknowledge that the Company has the right, in its sole discretion, to ask me to leave the Tour immediately, without refund, due to my inappropriate behavior, and I will be solely responsible for my own care and transportation from that location and time forward. I understand that inappropriate behavior includes, but is not limited to, intoxication, unsafe behavior, foul language, and a failure to follow the instructions of the Company’s employees.
- Promotional Release. I hereby waive any publicity rights I may have and I hereby grant to the Company the unrestricted right and permission to copyright and use my likeness, photographic portraits, pictures, video footage and/or audio recordings of my participation in the Tour, in which I may be included in whole or in part, including the negatives, prints, transparencies or digital information relevant to such likeness or portraits (the “Material”). The Company has the right to reproduce, exhibit, distribute, broadcast, digitize, edit, or otherwise use the Material, by any method and in any media, whether now existing or later created, without restriction, throughout the world by incorporating the Material into its website, publications, catalogues, brochures, books, magazines, or commercial, informational, educational, advertising, or promotional materials relating thereto (collectively, the “Works”). I agree that the Company is and shall be the exclusive owner of all right, title, and interest, including copyright, in the Material and the Works. I further grant to the Company an irrevocable, royalty-free, worldwide license to use my name, age, and hometown in connection with the Material and the Works.
- Severability. If any provision of this Waiver is for any reason declared to be invalid or unenforceable, the validity and enforceability of the remaining provisions will not be affected. The invalid or unenforceable provision will be deemed modified to the extent necessary to render it valid and enforceable, and if no modification may render it valid and enforceable, this Waiver will be construed as if not containing such provision and the rights and obligations of the parties will be construed and enforced accordingly.
- Controlling Law; Venue. This agreement shall be controlled by Bermuda law without regard to the conflicts of law principles thereof. Any claims related to participation in the Tour shall be brought only in the courts located in Bermuda, and I hereby agree to submit to the exclusive personal jurisdiction of such courts.
THIS IS A WAIVER AND RELEASE OF LIABILITY. BY PURCHASING A TICKET FOR AND PARTICIPATING IN THE TOUR, I REPRESENT THAT I HAVE READ THIS ENTIRE DOCUMENT. I UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO ITS PROVISIONS. BY CONTINUING TO PARTICIPATE IN THE TOUR, I AM INDICATING MY VOLUNTARY AGREEMENT TO THE PROVISIONS OF THIS WAIVER AND RELEASE OF LIABILITY. PARTICIPATION IN THE TOUR BY A PERSON WHO IS NOT YET 18 YEARS OLD INDICATES THAT A PARENT OR LEGAL GUARDIAN HAS ALSO READ AND CONSENTED TO THIS WAIVER.