WAIVER AND RELEASE FORM (THIS “AGREEMENT”)

I, (as evidenced by my signature below on behalf of myself if I am over the age of 18 or on behalf of the minor for which I am hereby asserting responsibility and guardianship of), understand, acknowledge and agree that:

• (A) participating in the instruction and operation of liftfoils and other water sports activities is/are hazardous activities on the water and there are inherent, unexpected, or unforeseeable risks in the activities, including severe and catastrophic physical and mental injury and/or death and I am:

  • (i) voluntarily and knowingly assuming such risks;

  • (ii) undertaking in this activity entirely at my own risk;

  • (iii) in good health and proper physical condition and of sound mind and body to participate in the activities;

  • (iv) not aware of any known or knowable physical or mental conditions that would affect my ability to safely participate in the activities;

  • (v) not under the influence of alcohol, drugs or any other substances; and

  • (vi) have not been advised by medical personal to refrain from such activities;

• (B) while On The Water LBI, LLC (hereafter called the “Operator”), has taken all reasonable precautions to provide a seaworthy liftfoil and other watercraft including any related equipment, and a well-trained and experienced instructor, and has made preparations for my safety as a Passenger/Rider, it is impossible for the Operator, or its employees and contractors, to guarantee my safety prior to, during, or following such instruction & operation of said liftfoils and other watercraft;

• (C) I have watched the safety videos provided to me by Operator and I have had an opportunity to ask questions of Operator and all such questions have been answered to my satisfaction; and

• (D) Operator does not manufacturer or modify liftfoils or other watercraft and any and all defects in manufacturing of said liftfoils and other watercraft are the sole and exclusive responsibility of the manufacturer.

Therefore, I hereby fully and unconditionally hold harmless, release, covenant not to sue (whether in formal legal proceedings or via mediation arbitration or other form of quasi-judicial proceeding) discharge, waive and release all liability against the Operator, and its successors, assignees, heirs, agents, employees, members, managers, officers, directors, representatives and/or contractors, arising from my participation in the instruction, use and operation of liftfoils and other watercraft and related activities provided by the Operator, or any employees or contractors of the Operator (including but not limited to activities on the loading docks and areas prior to your transportation to and from the liftfoils via watercraft and your transportation to and from the liftfoils via watercraft) any and all rights to:

• (1) make, directly or indirectly, any claim for injuries, costs, damages and/or any other losses or compensation; and/or

• (2) receive or recover, directly or indirectly, any costs, damages and/or any other losses or compensation.

This release waives any liability for negligence (including gross negligence) on the part of the Operator, its contractors, agents and employees.

For purposes of this Agreement, “claim” shall mean any and all actions, suits, claims, counterclaims, proceedings, demands, accounts, offsets, defenses, actions, causes of action, agreements, promises, doings, omissions, variances, damages, fees, payments, grievances, costs, losses, debts, expenses (including attorneys’ fees), obligations, executions and liabilities of every kind, character, nature and description whatsoever, disclosed or undisclosed, anticipated or unanticipated, asserted or unasserted, direct or indirect, contingent or liquidated, known or unknown, both in law, equity and otherwise.

I acknowledge that any future discovery of facts will not render ineffective the foregoing release and I covenant not to initiate or prosecute any claim or action based on, arising out of, or relating in any way to any of the Claims waived and released hereby.

In addition, should I violate the terms and conditions of this Agreement, I hereby indemnify, defend and hold harmless Operator and its successors, assignees, heirs, agents, employees, members, managers, officers, directors, representatives and/or contractors, for any and all, direct or indirect, costs (including reasonable attorneys fees, costs and expenses), damages, lost profits and/or any other losses or compensation incurred by Operator in the enforcement of this Agreement.

I hereby agree not to make any negative, derogatory or disparaging statements or communications regarding the Operator and its successors, assignees, heirs, agents, employees, members, managers, officers, directors, representatives and/or contractors in any manner whatsoever.

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule. Any action arising out of, based upon or related to this Agreement or the transactions contemplated hereby, shall only be instituted in the federal courts of the United States of America located in the State of New Jersey or, if such courts lack jurisdiction, in the courts of the State of New Jersey located in the City of Newark and County of Essex, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any action brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any action in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action brought in any such court has been brought in an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY SERVICE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY SERVICE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. In the event I breach any provision of this Agreement, I agree that Operator shall be entitled to (i) injunctive or other equitable relief to prevent me from violating my obligations with respect to this Agreement (without the necessity of posting any bonds), and (ii) any and all other remedies (monetary and otherwise) available in equity or at law.

This Agreement shall be binding upon the transferees, successors, assigns and legal representatives of the parties hereto.

In addition to the terms of the rental of the liftfoils and other watercraft, this Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous representations, warranties, understandings and agreements, both written and oral, with respect to such subject matter.

This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

I understand that this waiver is intended to be as broad and inclusive as permitted by the laws of the state of New Jersey and agree that if any portion here is held invalid, the remainder of the waiver will continue in full legal force and effect

I HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND ITS TERMS. I UNDERSTAND THAT I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE FOR INJURIES RESULTING FROM INHERENTLY DANGEROUS ACTIVITY AND NEGLIGENCE. I FURTHER ACKNOWLEDGE THAT I AM SIGNING THE AGREEMENT FREELY AND VOLUNTARILY AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW. I AM SIGNING THIS AGREEMENT AS MY FREE ACT AND HAVE NOT BEEN INFLUENCED IN ANY WAY BY OPERATOR OR ANY OTHER PERSON. I HAVE BEEN OFFERED THE OPPORTUNITY TO ASK ANY QUESTIONS, WHICH IF ASKED HAVE BEEN ANSWERED TO MY COMPLETE SATISFACTION AND I ACKNOWLEDGE AND AGREE THAT I HAVE BEEN INSTRUCTED TO SEEK LEGAL COUNSEL AND I HAVE MADE THE DECISION TO SEEK SUCH COUNSEL OR NOT SEEK SUCH COUNSEL FREELY AND VOLUNTARILY.