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RELEASE, WAIVER OF LIABILITY, ASSUMPTION OF RISK , AND INDEMNITY AGREEMENT This Release, Waiver of Liability, Assumption of Risk and Indemnity Agreement (the “ Agreement ”) is by and between TURTLE RIDGE FOUNDATION, INC. , a New Hampshire non - profit corporation with a principal place of business in Sugar Hill, New Hampshire (“ Turtle Ridge ”), and the organization described in Section 1 of this Agreement (the “ Releasor ”). B ackground 1. Turtle Ridge is a non - profit corporation that has designed and manufactured a sit ski device for adaptive use by physically challenged individuals (the “ Device ”). 2. Releasor desires the use of the Device for its elf or it’s designees . Turt le Ridge is donating at least one (1) or more Devices to the Releasor. 3. The parties wish to enter in this Agreement to release Turtle Ridge from its liability as designer, manufacturer and donor of the Device and for Releasor to indemnify and hold Turtl e Ridge harmless from any liabilities, claims or damages arising from the use of the Device. N O W, T H E R E F O R E, In consideration of the mutual covenants and agreements herein set forth, the parties hereby agree as follows: Section 1. Description of the Rel easor . The Releasor’s name, address and contact person are as follows: Name: Address: Contact Person: Telephone: Section 2. Qualification to Operate Device . The Releasor acknowledges, agrees and represents that Releasor understands the nature of the Device and that any member, employee, agent or volunteer of the Releasor using the Device is or will be qualified to use the Device. The Releasor further acknowledges, agrees and represents any member, employee, agent or vol unteer of the Releasor instructing other members, employees, agents or volunteers of the Releasor in the use of the Device is or will be qualified to perform such instruction. Section 3. Acknowledgment and Assumption of Risk . The Releasor acknowledges that: (a) th e use of the Device involves risk and dangers of serious bodily injury and death to its members, employees, agents or volunteers (the “ Risks ”); (b) the Risks and dangers may be caused by the Releasor or its members’, employees’, agents’ or volunteers’ own actions or inaction, or the actions or inaction of others; (c) there may be other risks and losses either known to the Releasor or not readily foreseeable at this time; and the Releasor fully accepts the Risks and all responsibility for any and all losses, costs and damages that it may incur as a result of its acceptance and use of the Device. Section 4. Examination of the Device . The Releasor agrees and warrants that it will examine and inspect the Device and that if the Releasor observes any defect of the Device, it will not use the 2 Device and will notify Turtle Ridge of such defect. Notwithstanding the foregoing, Turtle Ridge makes no warranties, express or implied, with respect to the Device. Section 5. Release and Indemnification . The Releasor hereby releases, discharge s, and covenants not to sue Turtle Ridge, its administrators, directors, agents, officers, volunteers, employees or agents (collectively, the “ Releasees ”) from and against any and all liabilities, claims, demands, losses or damages, including the negligenc e of the Releasees, resulting in personal injury, accidents or illnesses (including death) and property loss arising from the use of the Device by its members, employees, agents or volunteers. The Releasor further agrees that if despite this Agreement, th e Releasor, or any individual using or injured by the Device in connection with the activities of the Releasor, makes any claim against any of the Releasees pertaining to any use of the Device, the Releasor will indemnify, defend and hold each of the Relea sees harmless from and against any litigation expenses, attorney fees, loss, liability, damage, or cost which any may incur as a result of such claim. Section 6. Obligation to Obtain Waiver . The Releasor shall obtain written waivers and releases of liability (in a form acceptable to Turtle Ridge) from any individual who uses the Device in connection with the Releasor’s activities. Such waivers and releases shall be signed in advance of any use of the Device, and shall at a minimum, contain an acknowledgment by the individual of the Risks, and shall release, indemnify and hold harmless Turtle Ridge, and Turtle Ridge’s officers, licensors, licensees, suppliers, directors, agents, employees, representatives and volunteers from and against any and all actions, claims, l iabilities, losses, damages, expenses, and costs (including court costs and attorneys’ fees), without limitation for any property damage, personal injury, death or any other action, claim, liability, loss, damage or expense based on or related to the Devic e. Section 7. Advice of Counsel . The Releasor hereby acknowledges that it has been advised to seek legal counsel with respect to this Agreement and has sought such counsel in the manner it deems fit. Section 8. Waiver of Rule of Construction . The parties waive the benefit of any rule that this Agreement is to be construed against one party or the other. Section 9. Costs of Suit and Enforcement . If Turtle Ridge resorts to suit or other legal proceedings to enforce any right or remedy hereunder, the Releasor agrees to pay Turtle Ridge ’s costs of suit and enforcement, including reasonable attorneys’ fees, in each case to the extent, if at all, deemed just and appropriate by the court having jurisdiction over such suit or proceedings. The Releasor also acknowledges that the Releasor wil l not have a similar right to recover attorneys’ fees in the event the Agreement is not found enforceable. Section 10. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, without giving effect t o principles of conflict of laws that would require the application of any other law. Section 11. Severability . If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be inva lid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenan t or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 3 IN WITNESS WHEREOF, the parties, individually or as evidenced by the signature(s) of their Duly Authorized Agent(s), do hereby execute this Release, Waiver, Assumption of Risk and Indemnity Agreement.
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