ACTIVE CONSENT AGREEMENT AND LIABILITY WAIVER (''Agreement and Waiver'')
PLEASE READ THE FOLLOWING AGREEMENT AND WAIVER CAREFULLY, AS IT AFFECTS YOUR FUTURE LEGAL RIGHTS. BY PROCEEDING WITH REGISTERING FOR THIS EDUCATIONAL PROGRAM, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE CAREFULLY READ THE AGREEMENT AND WAIVER AND AGREE TO THE TERMS SET FORTH BELOW.
Please read this entire document, however some of the key points of this Agreement and Waiver are highlighted here:
The activity for which you are registering (the ''Educational Program'') may be physically challenging and pose a risk of discomfort, illness, injury, and even death. It is your responsibility to ensure that you are in sufficient physical condition to participate in the Educational Program without risk to your health or your life. We do not conduct health or fitness checks on entrants.
Some Events may pose certain risks to participants and observers. We cannot remove risks to participants and observers and, accordingly, you participate and/or observe at your own risk.
In consideration of being permitted to register and/or participate in and/or observe the Educational Program, on behalf of yourself and any personal representatives, assigns, heirs, executors, successors, next of kin, and persons supported by you (if relevant under the applicable laws), you understand that:
1. Authority to Register and/or to Act as Agent. You represent and warrant to Wild Gather : Hudson Valley School of Herbal Studies (''Wild Gather'') that you have full legal authority and capacity to complete the registration for the Educational Program, including this Agreement and Waiver, on behalf of yourself and/or, where applicable, any party for whom you are registering (the ''Registered Parties''). As used in this Agreement and Waiver, (a) ''Wild Gather'' means and includes Wild Gather : Hudson Valley School of Herbal Studies, its partners, licensors, and any and all subsidiaries, affiliated entities, or entities that control, are controlled by, or are under common control with “Wild Gather” singly 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 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 Waiver on his/her behalf and by proceeding with registration for the Educational Program, you agree that the terms of this Agreement and Waiver shall apply equally to all of the Registered Parties. To the extent permitted by law, each person agreeing to this Agreement and Waiver for him/herself/themselves and/or on behalf of another Registered Party (including, without limitation, any minor) agrees to indemnify, defend, and hold Active harmless from any liability, claim, demand, cause of action, damage, loss, or expense (including court costs and reasonable attorney's fees) of any kind or nature (each, a ''Liability'' and collectively ''Liabilities'') in the event the 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 this Agreement and Waiver. In addition, if, despite this Agreement and Waiver, any of the Registered Parties makes a claim against Wild Gather, you agree, immediately upon request or demand by Wild Gather, to defend, indemnify, and hold Active harmless from all Liabilities which may be incurred as the result of such claim.
2. ASSUMPTION OF RISK. IN CONSIDERATION OF THE ACCEPTANCE OF YOUR REGISTRATION AND PARTICIPATION IN THE EDUCATIONAL PROGRAM, YOU ASSUME FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY DISCOMFORT, ILLNESS, INJURY, OR ACCIDENT WHICH MAY OCCUR WHILE YOU ARE PREPARING FOR THE EDUCATIONAL PROGRAM, DURING THE EDUCATIONAL PROGRAM, WHILE YOU ARE ON THE PREMISES OF THE EDUCATIONAL PROGRAM, OR WHILE YOU ARE TRAVELING TO OR FROM THE EDUCATIONAL PROGRAM. YOU UNDERSTAND THAT, DEPENDING ON THE NATURE OF THE EDUCATIONAL PROGRAM, PARTICIPATING IN THE EDUCATIONAL PROGRAM MAY BE HAZARDOUS, AND THAT YOU SHOULD NOT ENTER AND PARTICIPATE UNLESS YOU ARE IN SUFFICIENT PHYSICAL CONDITION TO PARTICIPATE. IF NEEDED, YOU SHOULD CONSULT YOUR DOCTOR BEFORE PARTICIPATING IN THE EDUCATIONAL PROGRAM. IF APPLICABLE, YOU ACKNOWLEDGE AND AGREE THAT THE EDUCATIONAL PROGRAM MAY BE HELD OVER PUBLIC ROADS AND FACILITIES OPEN TO THE PUBLIC DURING THE EDUCATIONAL PROGRAM AND UPON WHICH HAZARDS ARE TO BE EXPECTED. YOU ALSO ACKNOWLEDGE AND AGREE THAT PARTICIPATION IN THE EDUCATIONAL PROGRAM 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 DISABILITY AND DEATH. YOU ARE AWARE OF AND ASSUME ALL RISKS ASSOCIATED WITH PARTICIPATING IN THE EDUCATIONAL PROGRAM, INCLUDING, WITHOUT LIMITATION, RISKS OF PERMANENT INJURY OR DEATH DUE TO FALLS, OBSTACLES, CONTACT WITH OTHER PARTICIPANTS, ACTS OR OMISSIONS OF OTHER PARTICIPANTS, EFFECT OF WEATHER, TRAFFIC AND CONDITIONS OF ANY ROAD.
3. Representations. You represent and warrant that you are in sufficient physical condition to safely participate in the Educational Program, and have no medical condition that would make your participation in the Educational Program more hazardous. You consent to medical care and transportation in order to obtain treatment in the event of injury to you and understand that this Agreement and 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 Educational Program (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, 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 Wild Gather or the Educational Program organizer and to abide by any decision of any Educational Program official relative to your ability to safely participate in or attend the Educational Program. You understand and agree that you are expected to exhibit appropriate behavior at all times while at the Educational Program and to obey all applicable laws while participating in or attending the Educational Program. This includes, generally, respect for other people, equipment, facilities or property. You agree that Educational Program officials may dismiss you, without refund, should your behavior, in the opinion of Wild Gather or the Educational Program organizer, endanger the safety of or negatively affect the Educational Program. You understand and agree that you are responsible for taking care of your own personal belongings during the Educational Program and, to the maximum extent permitted by law, neither Wild Gather nor the Educational Program organizer is responsible for any personal item or property that is lost, damaged or stolen at the Educational Program. You understand and agree that the Educational Program organizer reserves the right to cancel the Educational Program in the event of weather (including, but not limited to, heat, tornadoes, earthquakes, fires, storms, lightning and floods), accidents, acts of war or terrorism, military conflicts or riots, or for any reason that would affect the safety and security of the Educational Program participants and/or spectators or the feasibility of the Educational Program to be held. In the event of such cancellation or any other cancellation for any reason, there will be no refund of your payment unless authorized and paid by the Educational Program organizer.
4. RELEASE AND WAIVER OF LIABILITY. YOU HEREBY WAIVE, RELEASE, COVENANT NOT TO SUE AND FOREVER DISCHARGE ACTIVE AND ALL OTHER PERSONS ASSOCIATED WITH THE EDUCATIONAL PROGRAM, FOR ALL LIABILITIES, CLAIMS, ACTIONS, OR DAMAGES THAT YOU MAY HAVE AGAINST THEM ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR REGISTRATION AND/OR PARTICIPATION IN THE EDUCATIONAL PROGRAM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES, CLAIMS, ACTIONS, OR DAMAGES CAUSED BY NEGLIGENCE OF THE ABOVE PARTIES (INCLUDING ANY NEGLIGENT RESCUE ATTEMPT), THE ACTION OR INACTION OF ANY OF THE ABOVE PARTIES, OR OTHERWISE.
ACTIVE 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 ACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, WILD GATHER WILL NOT BE RESPONSIBLE FOR (A) THE USE OR THE INABILITY TO USE THE WILD GATHER SITES, PRODUCTS OR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WILD GATHER SITES; (C) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY WILD GATHER; (D) PERSONAL INJURY; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (F) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WILD GATHER SITES; (G) ANY OTHER MATTER RELATING TO THE WILD GATHER SITES, OR WILD GATHER PRODUCTS OR SERVICES; OR (H) YOUR PARTICIPATION IN THE EDUCATIONAL PROGRAM. YOU AGREE THAT WILD GATHER'S MAXIMUM LIABILITY TO YOU, FOR ANY REASON OR CAUSE WHATSOEVER, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES RECEIVED BY WILD GATHER FROM YOU.
NOTHING IN THIS AGREEMENT AND WAIVER SHALL BE CONSTRUED AS LIMITING OR EXCLUDING ACTIVES OR THE EDUCATIONAL PROGRAM ORGANIZER'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. YOUR STATUTORY RIGHTS AS A CONSUMER ARE NOT AFFECTED BY THIS AGREEMENT AND WAIVER.
5. INDEMNITY. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS WILD GATHER AND ALL OTHER PERSONS ASSOCIATED WITH THE EDUCATIONAL PROGRAM, FROM ALL LIABILITIES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR PARTICIPATION IN THE EDUCATIONAL PROGRAM, INCLUDING WITHOUT LIMITATION ANY LIABILITY CAUSED BY NEGLIGENCE (INCLUDING ANY NEGLIGENT RESCUE ATTEMPT), THE ACTION OR INACTION OF WILD GATHER, (B) YOUR USE OF WILD GATHER, OR (C) ANY VIOLATION BY YOU OF ANY TERMS OF THIS AGREEMENT AND WAIVER.
6. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF WILD GATHER'S SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN ''AS IS'' AND ''AS AVAILABLE'' BASIS. WILD GATHER MAKES NO WARRANTY THAT WILD GATHER SITES' SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. WILD GATHER 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. WILD GATHER DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON, OR PROVIDED IN CONNECTION WITH, THE WILD GATHER SITES. WILD GATHER IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
7. Severability. You further expressly agree that this Agreement and Waiver is intended to be as broad and inclusive as is permitted by applicable law, and if any provision of this Agreement and 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 Waiver (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 economic effect of the unenforceable provision and the Agreement and Waiver shall be deemed amended accordingly.
8. ACCEPTANCE. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND WAIVER, YOU ARE AFFIRMING THAT YOU HAVE READ THIS AGREEMENT AND 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 WAIVER 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. IF THE PARTICIPANT IS A MINOR OR 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.