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Participant Agreement and Liability Waiver

WINTER HAVEN CHARITY CHALLENGE
AGREEMENT AND LIABILITY WAIVER

 

            Please read the following agreement and Liability waiver carefully, as it affects your future legal rights. By proceeding with registering for the event, you acknowledge and agree that you have carefully read the agreement and liability waiver and agree to the terms set forth below.

            Although you still need to read the entire document, some of the key points of this Agreement and Liability Waiver are highlighted here:

  • The activity for which you are registering (the “Event”) may be physically challenging and may pose a risk of discomfort, illness, injury, and even death. You need to be satisfied that you are physically capable of doing the Event without undue risk to your health or your life. We do not conduct health or fitness checks on registrants.
  • The Event may involve inherent risks and dangers to participants and observers and, accordingly, you participate or observe at your own risk.
  • Where you have registered or entered on behalf of anyone under the age of 18 or have accompanied anyone under the age of 18 to observe the Event, you also agree to the contents of this Agreement and Liability Waiver on behalf of the person under 18.

            In consideration of being permitted to register for and/or participate in and/or observe the Event, on behalf of yourself and any personal representatives, assigns, heirs, successors, and dependents, you understand that:

  1. Authority to Register and/or Act as Agent. You represent and warrant to Your Polk County Hub, Inc. d/b/a Winter Haven Charity Challenge (“WHCC”) that you have full legal authority and capacity to complete the registration for the Event, including this Agreement and Liability Waiver, on behalf of yourself and/or, where applicable, any party for whom you are registering (the “Registered Parties”), including full authority to make use of the credit or debit card to which registration fees will be charged. As used in this Agreement and Liability Waiver, (a) “WHCC” means and includes Your Polk County Hub, Inc. d/b/a Winter Haven Charity Challenge, its partners, licensors, and any and all subsidiaries, affiliated entities, or entities that control, are controlled by, or are under common control with WHCC, individually or together, and its and each of their officers, employees, contractors, subcontractors and agents and each of their agents, representatives, successors and assigns; and (b) “you” or “your” means and includes you, as an individual, and all other Registered Parties for whom you are registering, and by virtue of agreeing to this Agreement and Liability Waiver, for whom you are waiving certain rights.

            If you are registering a child under the age of 18 or an incapacitated adult, you represent and warrant that you are the parent or legal guardian of that party and have the legal authority and capacity to enter into this Agreement and Liability Waiver on his/her behalf and by proceeding with registration for the Event, you agree that the terms of this Agreement and Liability Waiver shall apply equally to all of the Registered Parties. To the extent permitted by law, each person agreeing to this Agreement and Liability Waiver for him/herself and/or on behalf of another Registered Party (including, without limitation, any minor or incapacitated adult) agrees to indemnify, defend, and hold WHCC harmless from any liability, claim, demand, cause of action, damage, loss, or expense (including court costs and reasonable attorneys’ fees) of any kind or nature (each, a “Liability” and collectively “Liabilities”) in the event a Liability arises because a Registered Party is found by a court of competent jurisdiction to not be bound by the terms and conditions of this Agreement and Liability Waiver. In addition, if, despite this Agreement and Liability Waiver, any of the Registered Parties make a claim against WHCC, you agree, immediately upon request or demand by WHCC, to defend, indemnify, and hold WHCC harmless from all Liabilities which may be incurred as a result of such claim.

  1. ASSUMPTION OF RISK. IN CONSIDERATION OF THE ACCEPTANCE OF YOUR REGISTRATION AND PARTICIPATION IN THE EVENT, YOU ASSUME FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY DISCOMFORT, ILLNESS, INJURY, OR ACCIDENT WHICH MAY OCCUR DURING THE EVENT, WHILE YOU ARE ON THE PREMISES OF THE EVENT, OR WHILE YOU ARE TRAVELING TO OR FROM THE EVENT. YOU SHOULD NOT REGISTER AND PARTICIPATE UNLESS YOU ARE MEDICALLY ABLE. YOU SHOULD CONSULT YOUR DOCTOR BEFORE PARTICIPATING IN THIS EVENT. IT IS YOUR RESPONSIBILITY TO CHECK AND ENSURE THAT YOU ARE AT ALL TIMES MEDICALLY AND PHYSICALLY FIT TO PARTICIPATE IN THE ACTIVITIES RELATED TO THE EVENT. YOU ACKNOWLEDGE AND AGREE THAT THE EVENT MAY INVOLVE STANDING FOR LONG PERIODS OF TIME IN THE ELEMENTS IN PUBLIC FACILITIES OPEN TO THE PUBLIC DURING THE EVENT AND UPON WHICH HAZARDS ARE TO BE EXPECTED. YOU ALSO ACKNOWLEDGE AND AGREE THAT PARTICIPATION IN THE EVENT MAY CARRY WITH IT CERTAIN INHERENT RISKS AND DANGERS THAT CANNOT BE ELIMINATED COMPLETELY, RANGING FROM RISK OF MINOR DISCOMFORT TO CATASTROPHIC INJURIES INCLUDING PERMANENT INJURY AND DEATH. YOU ARE AWARE OF AND ASSUME ALL RISKS OF PERMANENT INJURY OR DEATH DUE TO FALLS, CONTACT WITH OTHER REGISTRANTS, ACTS OR OMISSIONS OF OTHER REGISTRANTS, EFFECT OF WEATHER, TRAFFIC, AND CONDITIONS OF ANY ROADS OR FACILITIES.
  1. Representations. You represent and warrant that you are in good physical condition, are able to safely participate in the Event, and have no medical condition that would make your participation in the Event more hazardous. You consent to medical care and transportation in order to obtain treatment in the event of injury and understand that this Agreement and Liability Waiver 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 Event (where such medical expenses are not provided on a free of charge basis by any medical services organizations, clinics, or hospitals), including, but not limited to, ambulance transport, hospital stays, and physician and pharmaceutical goods and services. You agree to observe and obey all posted rules and warnings, to follow any instructions or directions provided to you by WHCC and to abide by any decision of any Event official relative to your ability to safely participate in or attend the Event. You understand and agree that you are expected to exhibit appropriate behavior at all times while at the Event and to obey all applicable laws while participating in or attending the Event. This includes, generally, respect for other people, equipment, facilities or property. You understand and agree that Event officials may dismiss you, without refund, should your behavior, in the opinion of WHCC or any Event official, endanger the safety of or negatively affect the Event. You understand and agree that you are responsible for taking care of your own personal belongings during the Event and, to the maximum extent permitted by law, WHCC is not responsible for any personal item or property that is lost, damaged or stolen at the Event. You understand and agree that WHCC reserves the right to cancel the Event, without refund, in the event of weather (including, but not limited to, heat, tornadoes, hurricanes, earthquakes, fires, storms, lightening and floods), accidents, acts of war or terrorism, military conflicts or riots, or for any reason that would affect the safety, and/or security of Event participants and/or observers, or the feasibility the Event to be held. In the event of such cancellation or any other cancellation for any reason, there will be no refund of your payment. You agree to hold WHCC harmless from any liability, claim, demand, cause of action, damage, loss, or expense (including court costs and reasonable attorneys’ fees) of any kind or nature, related to any cancellation or disruption of the Event.
  1. RELEASE AND WAIVER OF LIABILITY. YOU HEREBY WAIVE, RELEASE, COVENANT NOT TO SUE AND FOREVER DISCHARGE WHCC AND ALL OTHER PERSONS ASSOCIATED WITH THE EVENT FOR ALL LIABILITIES, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LOSSES, OR EXPENSES THAT YOU MAY HAVE AGAINST THEM ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR REGISTRATION AND/OR PARTICIPATION IN THE EVENT, INCLUDING, WITHOUT LIMITATION, ANY LIABILITIES, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LOSSES, OR EXPENSES CAUSED BY THE NEGLIGENCE OF ANY OF THE ABOVE PARTIES (INCLUDING ANY NEGLIGENT RESCUE ATTEMPT), THE ACTION OR INACTION OF ANY OF THE ABOVE PARTIES, OR OTHERWISE.

            WHCC SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WHCC HAS BEEN ADVISED OF THE POSSIBILITY FO SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, WHCC WILL NOT BE RESPONSIBLE FOR (A) THE USE OR THE INABILITY TO USE THE WHCC WEBSITE(S), PRODUCTS OR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSITIONS ENTERED INTO THROUGH OR FROM THE WHCC WEBSITE(S); (C) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY WHCC; (D) PERSONAL INJURY; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA (F) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WHCC WEBSITE(S); (G) ANY OTHER MATTER RELATING TO THE WHCC WEBSITE(S), OR WHCC PRODUCTS OR SERVICES; OR (H) YOUR PARTICIPATION IN THE EVENT. YOU AGREE THAT WHCC’S MAXIMUM LIABILITY TO YOU, FOR ANY REASON OR CAUSE WHATSOEVER, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES RECEIVED BY WHCC FROM YOU.

            NOTHING IN THIS AGREEMENT AND LIABILITY WAIVER SHALL BE CONSTRUED AS LIMITING OR EXCLUDING WHCC’S LIABILITY FOR: (A) DEATH OR LIABILITY 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. YOUR STATUTORY RIGHTS AS A CONSUMER ARE NOT AFFECTED BY THIS AGREEMENT AND LIABILITY WAIVER.

  1. INDEMNITY. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD WHCC AND ALL OTHER PERSONS ASSOCIATED WITH THE EVENT HARMLESS FROM ALL LIABILITIES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR PARTICIPATION IN THE EVENT, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY CAUSED BY NEGLIGENCE (INCLUDING ANY NEGLIGENT RESCUE ATTEMPT); (B) THE ACTION OR INACTION OF WHCC; OR (C) ANY VIOLATION BY YOU OF ANY TERMS OF THIS AGREEMENT AND LIABILITY WAIVER.
  1. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF WHCC’S SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WHCC MAKES NO WARRANTY THAT WHCC’S WEBSITE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. WHCC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WHCC DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON, OR PROVIDED IN CONNECTION WITH, THE WHCC WEBSITE(S). WHCC IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
  1. Use of Likeness. You hereby irrevocably grant WHCC permission to record your voice and photograph you in conjunction with the Event. You understand and agree that the term “photograph” as used herein encompasses both still photographs and video recordings. You further grant WHCC permission to use your photograph, voice, and likeness taken in conjunction with the Event, in any form, including edited versions, in or over any medium including, without limitation, streaming audio and/or video over the internet, broadcast, cable, satellite transmissions, and media that are unknown at this time, worldwide for any legitimate purpose, including, without limitation, any commercial purpose, without compensation to you. You further waive any right of inspection of any such recording and photographs. You understand that any such recordings and photographs recorded by WHCC shall become the sole property of WHCC.
  1. ACCEPTANCE. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND LIABILITY WAIVER, YOU ARE AFFIRMING THAT YOU HAVE READ THIS AGREEMENT AND LIABILITY WAIVER AND FULLY UNDERSTAND ITS TERMS. YOU UNDERSTAND THAT YOU AND ALL REGISTERED PARTIES ARE GIVING UP SUBSTANTIAL RIGHTS, INCLUDING THE RIGHT TO SUE. YOU ACKNOWLEDGE THAT YOU ARE AGREEING TO THIS AGREEMENT AND LIABILITY WAIVER FREELY AND VOLUNTARILY, AND INTEND BY YOUR ACCEPTANCE TO COMPLETELY AND UNCONDITIONALLY RELEASE ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW. IF THE PARTICIPANT IS A MINOR OR AN INCAPACITATED ADULT, YOU CERTIFY THAT YOU ARE THE PARTICIPANT’S PARENT OR GUARDIAN AND AGREE TO THIS WAIVER AND RELEASE FROM LIABILITY ON BEHALF OF THE PARTICIPANT.
  1. Arbitration Agreement.

            (a)        Except as prohibited by law, each party to this Agreement and Liability Waiver agrees that any claim, controversy or legal dispute arising out of or relating to this Agreement and Liability Waiver (hereinafter, a “Dispute”) will be resolved through binding arbitration administered by the American Arbitration Association (the “AAA”). This Provision is intended to be broadly interpreted and includes claims, controversies or disputes arising out of or relating to any aspect of the relationship between you and WHCC, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, at law or in equity, all of which shall be considered within the definition of “Dispute.” THE PARTIES UNDERSTAND THAT, EXCEPT AS EXPLICITLY SET FORTH TO THE CONTRARY HEREIN, THEY ARE WAIVING ANY RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES. However, WHCC may not invoke its right to arbitrate any individual claim that you bring in small claims court, as long as it is brought and maintained as an individual claim. Notwithstanding the above, we both agree that you or WHCC may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this website or this Agreement and Liability Waiver must be filed within two (2) years after such claim or cause of action arose or be forever barred.

            (b)       A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). Any Notice to us should be addressed to: Winter Haven Charity Challenge, 2109 Edgewater Circle, Winter Haven, Florida 33880 or [EMAIL ADDRESS] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or WHCC shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.

            (c)        The arbitration will be conducted under and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the AAA (collectively, the “AAA Rules”), except as specified in or modified this Agreement and Liability Waiver. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Section 10. All issues are for the arbitrator to decide, except that issues relating to the scope of the arbitration provision are for the court to decide (as described further in subsection (d) below). The rules promulgated by the AAA concerning class arbitration shall not apply. The payment of all arbitration fees will be governed by the AAA Rules.

            (d) Notwithstanding the AAA Rules, the foregoing or any other provision of this Agreement and Liability Waiver (including this Provision), any disagreement or dispute concerning arbitrability (whether a particular Dispute is arbitrable) or the scope of this Provision shall be resolved by the United States District Court of and for the Middle District of Florida. If that United States District Court lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by a Florida court of general jurisdiction. By way of example only (and not by limitation), if the parties do not agree on whether a particular Dispute is subject to arbitration under this Provision, the proper tribunal to decide such Dispute is the United States District Court of and for the Middle District of Florida or, absent subject matter jurisdiction in that United States District Court of and for the Middle District of Florida, in the appropriate Florida state court. The arbitrator shall stay all arbitration proceedings pending a decision from the appropriate court on disputes under this subsection (d). The arbitrator shall follow, adhere to and defer to the decision, order, decree or judgment of the court following the court’s decision of any such dispute under this subsection (d). Any action, award or partial award of the arbitrator in contravention of this limitation may be the subject of court appeal by the aggrieved party. No other aspect of any ruling by the arbitrator shall be appealable, and all other aspects of the arbitrator’s ruling shall be final and non-appealable, except as set forth herein.

            (e) WAIVER OF CLASS-WIDE PROCEEDINGS: You agree that, by entering into this Agreement and Liability Waiver, you and we are each waiving the right to participate in a class action or class arbitration. Each party to this Agreement and Liability Waiver agrees and covenants that it will not initiate any class-wide proceedings, including class actions or class arbitrations, against another party, and will not act as a class representative or class member. This provision constitutes an agreement that any Dispute will be resolved exclusively on a bilateral basis between the parties, with each party acting in his/her/its individual capacity. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason the prohibition on class arbitration in this subsection (e) is not or cannot be enforced, then the agreement to arbitrate will not apply.

            (f) this Agreement and Liability Waiver evidence a transaction in interstate commerce, and thus the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. Florida state law and procedures concerning arbitration shall apply to this Agreement and Liability Waiver only to the extent that they do not conflict with and are not inconsistent with the FAA. This Provision shall survive termination of this Agreement and Liability Waiver.

            (g) Unless both parties agree otherwise, any arbitration hearings will take place in Polk County, Florida. Subject to the terms of this Provision, all Disputes shall be decided by a single arbitrator, who shall be either: (1) a retired federal judge; (2) a retired state court judge who sat on a trial court or appellate court for at least five (5) years; or (3) an attorney admitted to practice in the state in which the Dispute will be resolved for at least twenty-five (25) years with no disciplinary history. The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the Notice initiating the arbitration. If the parties cannot agree on an arbitrator, then the complaining party shall notify the AAA and request selection of an arbitrator in accordance with the applicable AAA Rules. The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted.

            (h) This Provision is not intended to modify or limit the remedies available to either party, including the right to seek interim relief, such as injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. Any Dispute that is not arbitrated, including any judicial action to enforce this arbitration provision will be litigated exclusively in the United States District Court of and for the Middle District of Florida and the parties hereby consent and submit to the jurisdiction and venue of such court. If that United States District Court of and for the Middle District of Florida lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by the Florida state court of general jurisdiction.

            (i) The arbitrator shall have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; provided, however, that in no event shall the right to discovery granted to the parties to this Agreement and Liability Waiver exceed ten (10) interrogatories, twelve (12) documents requests, two third-party subpoenas, and one deposition (of not more than four hours), per side. The parties may submit such pre-arbitration and post-arbitration briefs (including briefs during arbitration) as they choose, provided that no party shall submit briefing exceeding a reasonable page limitation to be set by the arbitrator. In the event any party submits a motion, the arbitrator shall consider the motion and either deny it or request opposition briefing by the non-moving party, which shall not be required until requested by the arbitrator. The arbitrator may not grant a motion without allowing the opposing party an opportunity to oppose. The total length of the arbitration hearings on the merits shall not exceed 10 hours of hearing time, to be divided equally between the opposing sides. All discovery shall be completed no later than sixty (60) days after appointment of the arbitrator. The hearing shall be concluded no later than one hundred eighty (180) days after appointment of the arbitrator, unless the arbitrator’s schedule requires a later hearing. The arbitrator may only extend these limits at the request of a party when the arbitrator finds exceptional cause for the extension. The parties may extend these limits by mutual agreement.

            (j) The arbitrator shall be required to issue a written arbitration decision including the arbitrator’s essential findings, conclusions and a statement of award. Except as set forth herein, the arbitrator shall have exclusive authority to resolve all Disputes.

  1. Severability. You further expressly agree that this Agreement and Liability Waiver is intended to be as broad and inclusive as permitted by applicable law, and if any provision of this Agreement and Liability Waiver 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 and Liability Waiver (including, without limitation, all portions of any provisions containing any such enforceable 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 economic effect of the unenforceable provision and the Agreement and Liability Waiver shall be deemed amended accordingly.
  1. Miscellaneous. WHCC may assign its rights and obligations under these Non-Profit Terms and Conditions and, upon such assignment, WHCC may be relieved of any further obligation hereunder. You may not assign any of your rights or obligations under these Non-Profit Terms and Conditions. Any assignment in violation of these terms is void.

            Rights and obligations under these Non-Profit Terms and Conditions which by their nature should survive will remain in full effect after termination or expiration of these Non-Profit Terms and Conditions.

            You represent to WHCC that you have the authority to register with WHCC according to these Non-Profit Terms and Conditions. The failure of WHCC to exercise or enforce any right or provision of these Non-Profit Terms and Conditions shall not constitute a waiver of such right or provision. The section titles in these Non-Profit Terms and Conditions are for convenience only and have no legal or contractual effect. WHCC may provide you with notices, including those regarding changes to these Non-Profit Terms and Conditions and notices regarding breaches of security, by email, regular mail or postings on the Site. Except for certain WHCC licensors, or as may be otherwise expressly provided herein, there are no third-party beneficiaries to these Non-Profit Terms and Conditions. A printed version of these Non-Profit Terms and Conditions and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Non-Profit Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.