Release of Liability, Assumption of Risk and Indemnification Agreement.
All participants must acknowledge the following Release of Liability, Assumption of Risk and Indemnification Agreement. A copy of this form will be included in your online traveler profile.
A. Trip and Associated Risks: I have chosen to participate in the above-referenced trip (hereinafter referred to as "the Trip") of my own free will volition and accord without duress or apprehension of any kind whatsoever, which is organized by Winding Road, Inc., doing business as Winding Road Tours (hereinafter referred to collectively as "Winding Road Tours"). I understand that:
i. The Trip involves activities that are inherently hazardous and dangerous, including those described in the separate document for the Trip, "Activity Level and Risks and Hazards," which has been provided to me and which I am also signing and returning;
ii. During the Trip, I may be exposed to dangers and hazards, including equipment
failures and negligence by others;
iii. As a consequence of these risks, I may be seriously hurt or disabled or may die from the resulting injuries, and that my property may also be damaged;
iv. Hospital facilities, qualified medical care, and emergency medical evacuation may be limited or unavailable during portions of the Trip and, where available, may be expensive; and
v. WINDING ROAD TOURS ASSUMES NO RESPONSIBILITY FOR PROVIDING MEDICAL CARE DURING THE TRIP, AND I WILL HAVE TO PAY FOR ANY MEDICAL CARE AND/OR EVACUATION THAT I INCUR. IN CONSIDERATION OF THE PERMISSION TO PARTICIPATE IN THE TRIP, I AGREE TO THE TERMS CONTAINED IN THIS DOCUMENT.
B. ASSUMPTION OF THE RISKS: I HEREBY FREELY AND FULLY ASSUME THE ABOVE MENTIONED RISKS, OF MY OWN FREE WILL VOLITION AND ACCORD WITHOUT DURESS OF ANY KIND, AND ANY HARM, INJURY OR LOSS THAT MAY OCCUR TO ME OR MY PROPERTY AS A RESULT OF MY PARTICIPATION IN THE TRIP‐INCLUDING ANY RISKS CAUSED BY THE NEGLIGENCE OF WINDING ROAD TOURS, ITS EMPLOYEES AND OFFICERS, ITS CONTRACTORS, AND OTHER TRIP PARTICIPANTS.
C. WAIVER AND RELEASE OF LIABILITY: I HEREBY FOREVER AND FULLY WAIVE AND RELEASE ALL LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS AGAINST WINDING ROAD TOURS, ITS EMPLOYEES, OFFICERS, DIRECTORS, VENDORS AND CONTRACTORS ("RELEASED PARTIES"), WHERE SUCH LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM (WHETHER FORESEEN OR UNFORESEEN) THAT OCCUR TO ME OR TO ANY OTHER PERSON OR TO ANY PROPERTY DURING THE TRIP OR ARE IN ANY WAY RELATED TO THE TRIP. THIS RELEASE INCLUDES, BUT IS NOT LIMITED TO, CLAIMS FOR THE NEGLIGENCE OF THE RELEASED PARTIES AND CLAIMS FOR STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES. THIS RELEASE DOES NOT EXTEND TO CLAIMS FOR GROSS NEGLIGENCE, INTENTIONAL OR RECKLESS MISCONDUCT, OR ANY OTHER LIABILITIES THAT NEW MEXICO LAW DOES NOT PERMIT TO BE RELEASED BY AGREEMENT. I ALSO AGREE NOT TO SUE OR MAKE A CLAIM AGAINST THE RELEASED PARTIES FOR DEATH, INJURIES, LOSS, OR HARM THAT OCCUR ON THE TRIP.
D. INDEMNIFICATION HOLD HARMLESS AND DEFENSE: I PROMISE TO INDEMNIFY, WARRANT, HOLD HARMLESS AND DEFEND THE RELEASED PARTIES AGAINST ANY AND ALL LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS THAT ARISE FROM MY ACTS OR MY FAILURE TO ACT (INCLUDING MY OWN NEGLIGENCE) DURING OR RELATING TO THE TRIP. IN ACCORDANCE WITH THIS PROMISE, I WILL REIMBURSE THE RELEASED PARTIES FOR ANY DAMAGES, REASONABLE SETTLEMENTS AND DEFENSE COSTS, INCLUDING ATTORNEY'S FEES THAT THEY INCUR BECAUSE OF ANY SUCH CLAIMS MADE AGAINST THEM. I AGREE THAT IN THE EVENT OF MY DEATH OR DISABILITY, THE TERMS OF THIS AGREEMENT, INCLUDING THE INDEMNIFICATION OBLIGATION IN THIS SECTION, WILL BE BINDING ON MY ESTATE, AND MY PERSONAL REPRESENTATIVE, EXECUTOR, ADMINISTRATOR OR GUARDIAN WILL BE OBLIGATED TO RESPECT AND ENFORCE THEM AND ANY AND ALL OF MY HEIRS, SUCCESSORS OR ASSIGNS.
E. Other Forms and Terms: I have carefully read Winding Road Tours' Reservation Information, Health Form, "Activity Level and RISKS AND HAZARDS," I have also carefully read and have familiarized myself with all of the information provided to me about the Trip and its rating. I agree to all of the conditions in the Reservation Information‐ including the sections about my responsibilities and about Winding Road Tours' legal limitations. I acknowledge and agree that Winding Road Tours has no control over and assumes no responsibility for the actions of any independent contractors providing any services for the Trip.
F. Severability: I agree that the purpose of this agreement is that it shall be an enforceable release of liability and indemnity as broad and inclusive as is permitted by New Mexico law. I agree that if any portion or provision of this agreement is found to be invalid or unenforceable, then the remainder will continue in full force and effect. I also agree that any invalid provision will be modified or partially enforced to the maximum extent permitted by law to carry out the purpose of the agreement.
G. APPLICABLE LAW, FORUM & ATTORNEY'S FEES: THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW MEXICO, WITHOUT ANY REFERENCE TO ITS CHOICE OF LAW RULES. I AGREE THAT ANY DISPUTE ARISING FROM THIS AGREEMENT OR IN ANY WAY ASSOCIATED WITH THE TRIP SHALL BE FIRST SUBMITTED TO CONFIDENTIAL NON‐BINDING MEDIATION AMONG THE PARTIES BY A MEDIATOR MUTUALLY AGREEABLE TO THE PARTIES. I AGREE THAT THE OUTCOME OF ANY MEDIATION WILL BE STRICTLY CONFIDENTIAL. IF THE DISPUTE CANNOT BE FULLY AND FINALLY RESOLVED THROUGH MEDIATION, THEN I AGREE THAT THE DISPUTE SHALL BE ARBITRATED PURSUANT TO THE NEW MEXICO ARBITRATION ACT BY ONE SINGLE ARBITRATOR WHO IS MUTUALLY AGREEABLE TO THE PARTIES. IF THE PARTIES CANNOT AGREE UPON AN ARBITRATOR, THEN EACH PARTY SHALL PROPOSE THREE (3) ARBITRATORS AND THE THEN CHIEF JUDGE OF THE FIRST JUDICIAL COURT OF THE COUNTY OF SANTA FE, STATE OF NEW MEXICO, SHALL BE ASKED TO SELECT AN ARBITRATOR FOR THE PARTIES. THE PARTIES SHALL SHARE ALL COSTS ASSOCIATED WITH THE ARBITRATION. NOTWITHSTANDING ANY PROVISION THE CONTRARY HEREIN, IN ANY LITIGATION OR ARBITRATION IN WHICH THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT IS CONTESTED, I AGREE THAT THE PREVAILING PARTY WILL PAY ALL ATTORNEY'S FEES AND COSTS OF THE PARTIES SEEKING TO UPHOLD THE AGREEMENT.
I have fully informed myself of the contents of this agreement by reading it before signing it. No oral representations, statements or other inducements to sign this release have been made apart from what is contained in this document.
If participant is a minor, signature of parent or guardian is also required: In consideration of my minor child's being permitted to participate in the Trip, I accept and agree to the full contents of this agreement. I understand that I am responsible for and I accept the responsibility for the supervision throughout the duration of the Trip of any minor traveling in my care. I also agree to RELEASE, HOLD HARMLESS, INDEMNIFY AND DEFEND the Released Parties from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to my minor child during the Trip or in any way related to the Trip. This includes any claim of the minor and any claim arising from the negligence of the Released Parties. I understand that nothing in this agreement is intended to release claims for gross negligence, intentional or reckless misconduct, or any other liabilities that New Mexico law does not permit to be excluded by agreement.
By signing below, I acknowledge that I am signing a binding legal document and that I have had the opportunity to seek counsel before signing and I have either done so, or refrained from doing so, of my own free will volition and accord.
Date: September 20, 2021
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