MISERY CHALLENGE
ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT
PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE SIGNING.
THIS DOCUMENT HAS LEGAL CONSEQUENCES, WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
Parties.
Released Parties include Pain Cave, Inc. and its directors, officers, employees, agents, contractors, insurers, spectators, co-participants, equipment suppliers, and volunteers; all Misery Challenge event sponsors, organizers, promoters, directors, officials, property owners, and advertisers; governmental bodies and/or municipal agencies whose property and/or personnel are used; and any or all parent, subsidiary or affiliate companies, licensees, officers, directors, partners, board members, supervisors, insurers, agents, equipment suppliers, and representatives of any of the foregoing.
Releasing Parties include: the participant as well as participant’s spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on participant’s behalf.
Assumption of Inherent Risks.
I acknowledge that the Misery Challenge is an extreme test of my physical and mental limits that carries with it inherent risks of physical injury. Inherent risks are risks that cannot be eliminated completely regardless of the care and precautions taken by Pain Cave, Inc. (hereafter used when referring to the corporate entity and protected parties). I also understand that it is extremely strenuous with the accompanying risks and dangers generally present in such activities. I understand that these hazards may be magnified due to the fact that the Misery Challenge is often conducted under what may be extreme conditions and circumstances.
I understand and acknowledge that the inherent risks include, but are not limited to: 1) injury or fatality due to immersion underwater; 2) contact or collision with exposed or submerged persons or objects, contact with other participants, contact or collision with boats or other watercraft; 3) equipment related hazards (e.g., broken, defective or inadequate competition equipment); 4) weather-related hazards (e.g., extreme heat, extreme cold, fog); 5) inadequate or negligent first aid and/or emergency measures; 6) judgment- and/or behavior-related problems (e.g., erratic or inappropriate co-participant or spectator behavior, erratic or inappropriate behavior by the participant, errors in judgment by personnel working the event; and 7) natural hazards (e.g. rough or unexpected sea conditions, lightning strikes, and/or contact with hazardous marine life).
I further understand and acknowledge that any of these risk and others, not specifically named, may cause serious injury, death or personal property loss or damage.
I also understand that it is my responsibility to consult with my personal physician prior to participating in the Misery Challenge to ensure that such participation will not pose any unusual risks to my health and well-being.
I understand that it is my responsibility to inspect the course, facilities, equipment, and areas to be used, and if I believe or become aware that any are unsafe or pose unreasonable risks, I agree to immediately notify appropriate personnel. By participating in the event, I am acknowledging that I have found the course, facilities, equipment, and areas to be used to be safe and acceptable for participation. I accept full and sole responsibility for the condition and adequacy of my equipment.
I understand fully the inherent risks participating in the Misery Challenge and assert that I am willingly and voluntarily participating in the event. I have read the preceding paragraphs and acknowledge that 1) I know the nature of the Misery Challenge; 2) I understand the demands of this activity relative to my physical condition; and 3) I appreciate the potential impact of the types of injuries that may result from the Misery Challenge. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses, or expenses that I may incur as a result of participating in the Misery Challenge.
Waiver of Liability for Ordinary Negligence:
In consideration of being permitted to participate in the Misery Challenge, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I (on behalf of the Releasing Parties) hereby forever waive, release, covenant not to sue, and discharge Pain Cave, Inc. and the other Released Parties from any and all claims resulting from the Inherent Risks of the Misery Challenge or the ordinary negligence of Pain Cave, Inc. (or other Released Parties) that I may have arising out of my participation in the Misery Challenge.
This agreement applies to 1) personal injury (including death) from incidents or illnesses arising from the Misery Challenge participation, which includes injury during course inspection, observation, practice runs, the event, medical treatment, and while on the premises (including, but not limited to base area, stands, sidewalks, parking areas, sponsor promotions, restrooms, first-aid tents, and dressing facilities); and 2) any and all claims resulting from damage to, loss of, or theft of property.
Indemnification Agreement.
In consideration of being permitted to participate in the Misery Challenge and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I hereby agree to hold harmless, defend and indemnify Pain Cave, Inc. (and the other Released Parties) from and against: 1) any and all claims made by me (or any Releasing Party) arising from injury or loss due to my participation in the Misery Challenge; and 2) against any and all claims of co-participants, rescuers, and others arising from my conduct in the course of my participation in the Misery Challenge. For the purposes hereof, “claims” includes all actions and causes of action, claims, demands, losses, costs, expenses and damages, including legal fees and related expenses. This indemnity shall survive the completion or sooner termination of the Misery Challenge.
Other Agreements.
Severability: I understand and agree that this Assumption of Risk, Waiver of Liability, and Indemnification Agreement is intended to be as broad and inclusive as is permitted by the Commonwealth of Massachusetts and that if any provision shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Integration: I affirm that this agreement supersedes any and all previous oral or written promises or agreements. I understand that this is the entire Agreement between me and Pain Cave, Inc. and cannot be modified or changed in any way by representations or statements by any agent or employee of Pain Cave, Inc. This Agreement may only be amended by a written document duly executed by all parties.
Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the Misery Challenge shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The cost of such action shall be shared equally by the parties.
Agreements for the Protection of Participants:
I represent and warrant that I am in good health and in proper physical condition to safely participate in the Misery Challenge. I certify that I have no known or knowable physical or mental conditions that would affect my ability to safely participate in the Misery Challenge, or that would result in my participation creating a risk of danger to myself or to others.
I represent and warrant that I am in full command of my faculties and am not under the influence of alcohol or drugs.
I acknowledge that Pain Cave, Inc. recommends and encourages each client to get medical clearance from his/her personal physician prior to participation and I assert that I have not been advised or cautioned against participating by a medical practitioner.
I understand that it is my responsibility to continuously monitor my own physical and mental condition during the course, and I agree to withdraw immediately and notify appropriate personnel if at any point my continued participation would create a risk of danger to myself or to others.
I represent and warrant that I am covered by medical insurance.
In the event of an injury to me that renders me unconscious or incapable of making a medical decision, I authorize appropriate Pain Cave, Inc. personnel and emergency medical personnel at the event to make emergency medical decisions on my behalf (including, but not limited to CPR and AED).
I authorize Pain Cave, Inc. to secure emergency medical care or transportation (i.e., EMS) when deemed necessary by Pain Cave, Inc.
I agree to assume all costs of emergency medical care and transportation.
I acknowledge that Pain Cave, Inc. has instituted its rules for the protection of the participant and co-participants. I agree to familiarize myself with those rules and follow them throughout the event. I also recognize the authority of Pain Cave, Inc. to halt my participation (and, if necessary, have me removed from the premises) if my participation, conduct, or presence endangers myself or my co- participants.
Entry and Participation Agreements:
Rules: I agree to become familiar with and abide by all written and/or posted rules of Pain Cave, Inc. I further agree to comply with all directions, instructions and decisions of Pain Cave, Inc. and event personnel. I further agree not to challenge these rules, directions, instructions, or decisions on any basis at any time.
Emergency Delay or Cancellation: I acknowledge that Pain Cave, Inc. at its sole discretion may delay, modify, or cancel the Misery Challenge if conditions or natural or man-made emergencies make administering the event unreasonably difficult or unsafe. I agree that “emergency” is defined to mean any event beyond the control of Pain Cave, Inc., including but not limited to: extreme weather, acts of terrorism, public disaster, and unavoidable casualty. In the event of a delay, modification, or cancellation of the Misery Challenge as described in this paragraph, I understand that I will not be entitled to a refund of my entry fee or any other costs incurred in connection with the Misery Challenge.
Participation: I understand that Pain Cave, Inc. has the authority to issue instructions or directions relating to the manner of my safe participation in the course or Related Activities and the authority to halt my participation in the course or Related Activities at any time they deem it necessary to protect the safety of participants, spectators, and personnel; and/or promote fairness and the spirit of the Misery Challenge.
Removal from Course: I understand that Pain Cave, Inc. and event personnel may immediately cause anyone who disobeys any rules, directions, instructions, decisions, or laws, or whose behavior endangers safety or negatively affects a person, facility, or property of any type or kind, to be removed from the course.
Fee Refunds: I understand that all fees and associated costs, paid in registration for this Misery Challenge are not refundable for any reason under any circumstances, including but not limited to injury, a scheduling conflict, and/or event cancellation.
Photography: I understand that any and all photographs, motion pictures, recordings, and/or likenesses of me captured during the Misery Challenge by Pain Cave, Inc., its affiliated entities or contractors, and/or the media become the sole property of Pain Cave, Inc. I grant the right, permission and authority to Pain Cave, Inc. and its designees to use my name and any such photographs, motion pictures, recordings, and/or likenesses for any legitimate purpose, including but not limited to promoting, advertising, and marketing activities. I further understand that Pain Cave, Inc. and its designees have the full right to sell and/or profit from the commercial use of such photographs, motion pictures, recordings, and/or likenesses.
Acknowledgment of Understanding: I have read this Assumption of Risk, Waiver of Liability, and Indemnification Agreement and fully understand its terms. I understand that I am giving up substantial rights, including my right to sue. I further acknowledge that I am freely and voluntarily signing this Agreement and participating in the Misery Challenge, and intend my signature to be a complete and unconditional release of all liability due to Ordinary Negligence of Pain Cave, Inc. (and other Released Parties) or the Inherent Risks of the activity, to the greatest extent allowed by law of the Commonwealth of Massachusetts.
Signature: Electronic. See box.
Note: If participant will not be at least 18 years of age at the time of the Misery Challenge, this Assumption of Risk, Waiver of Liability, and Indemnification Agreement shall be signed by a legal guardian on behalf of the participant.
