liability waiver

Liability Waiver, Release, Indemnification, and Voluntary Assumption of Risk (the "Release")

THIS RELEASE CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTION OF RISK PROVISIONS, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS RELEASE CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.

Summary

As provided in greater detail in this Release (and without limiting the express language of this Release), You acknowledge the following:

You fully release the operators and sponsors of the Services and Floa and the Equipment from all Claims You have or may have against them arising out of Your use of the Services;
Your use of the Services is at your sole risk;
The Services, including the Equipment, are provided "as-is" and we make no promises that they will be in good repair or defect-free;
You will perform a safety inspection before using, and are competent to do so, and You will not use the Equipment that is damaged or defective;
There are significant risks and dangers inherent in using water sport equipment and You assume those risks;
You are responsible for all injuries or damages that You cause to other people or property;
You will wear a personal floatation device (“PFD”, “lifejacket”), whistle, and leash (collectively “the Safety Gear”) as required, but we cannot guarantee its effectiveness;
You agree that any PFD provided is not intended for You if You have a chest size smaller than thirty inches (30”) or larger than fifty-two inches (52”);
You will ensure the PFD is properly sized and fitted;
You will perform a safety inspection on the Safety Gear, and are competent to do so, and You will not use the Safety Gear that is damaged or defective; and
You give us Your consent to use photos or videos of You that are taken while You are using the Equipment.

In consideration of Your use of any of the Services (defined below), You ("You," "Your" or "Yourself") agree to all terms and conditions in this Release. In order to rent a surfboard, stand-up paddleboard, and/or kayak (the “Equipment”), You must also agree to the terms of the Equipment Rental Agreement ("Rental Agreement").

I. Releases; No Warranties; Assumption of Risk; Indemnification.

Section 1 Releases; No Warranties.
IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, EQUIPMENT, SAFETY GEAR, OR EQUIPMENT UNITS YOU (ACTING FOR YOURSELF AND FOR ALL OF YOUR FAMILY, HEIRS, AGENTS, AFFILIATES, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS) DO FULLY AND FOREVER RELEASE, HOLD HARMLESS, PROMISE NOT TO SUE, AND DISCHARGE ALL RELEASED PERSONS FROM ALL CLAIMS THAT YOU HAVE OR MAY HAVE AGAINST ANY RELEASED PERSON ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES. Such releases are intended to be general and complete releases and waivers of all Claims arising out of or in any way related to Your use of the Services. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, and may do so as intended third-party beneficiaries of such releases, if appropriate.

WITHOUT LIMITATION OF THE FOREGOING GENERAL RELEASES, YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED OR EXPANDED BY APPLICABLE LAW, FLOA AND ALL OTHER RELEASED PERSONS ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS RELEASE OR THE RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, EQUIPMENT, SAFETY GEAR, OR EQUIPMENT UNITS, (C) YOUR BREACH OF THIS RELEASE OR THE RENTAL AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN THE RENTAL AGREEMENT, OR YOUR VIOLATION OF ANY LAW, OR OF GOOD SAFETY PRACTICES, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU OR BY FLOA OR ANY RELEASED PERSON, (E) YOUR FAILURE TO WEAR A PFD OR OTHER SAFETY GEAR OR PROTECTIVE CLOTHING WHILE USING THE EQUIPMENT, OR THE FAILURE OF SUCH PFD OR SAFETY GEAR OR CLOTHING TO PREVENT DEATH OR INJURY, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY. YOU RELEASE AND WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF FLOA OR ANY OF THE OTHER RELEASED PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.

WITHOUT LIMITING THE BREADTH OF THE FOREGOING, YOU AGREE TO RELEASE FLOA AND ALL OTHER RELEASED PERSONS FOR ANY INJURY, DAMAGES OR LOSSES CAUSED BY THE ALLEGED NEGLIGENCE OF FLOA OR ANY OTHER RELEASED PERSON.

YOU FURTHER SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, EQUIPMENT, SAFETY GEAR, OR EQUIPMENT UNITS IS AT YOUR SOLE RISK. To the fullest extent permitted by law, and with respect to Your use of any of the Service, Equipment, Safety Gear, or Equipment Units, Floa and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. ALL OF THE SERVICES, EQUIPMENT, SAFETY GEAR, AND EQUIPMENT UNITS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK. Floa, and all other Released Persons do not represent or warrant that any of the Services, Equipment, Safety Gear, Equipment Units, or related information will be in good repair or error or defect-free. YOU ACKNOWLEDGE AND AGREE THAT DELAYS, OMISSIONS, INTERRUPTIONS, DEFECTS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, EQUIPMENT, SAFETY GEAR, OR EQUIPMENT UNITS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE SERVICES, FLOA EQUIPMENT, SAFETY GEAR, OR EQUIPMENT UNITS, AND FLOA AND ALL OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. YOU ASSUME FULL AND COMPLETE RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES AND CLAIMS OF ANY KIND OR NATURE WHATSOEVER RELATED TO YOUR STOLEN OR LOST FLOA EQUIPMENT OR SAFETY GEAR.

Section 2 Assumption of Risk; Indemnification.
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE EQUIPMENT AND SAFETY GEAR AT ALL TIMES. YOU UNDERSTAND THAT THIS AND OTHER SECTIONS IN THIS RELEASE AND THE RENTAL AGREEMENT DESCRIBE AND RELATE TO THE RISKS RELATING TO YOUR USE OF THE SERVICES. YOU AFFIRM THAT YOU HAVE READ, UNDERSTAND, AND ACCEPT THE ENTIRE RELEASE AND THE RENTAL AGREEMENT. YOU AGREE THAT THE EQUIPMENT AND SAFETY GEAR MAY MALFUNCTION, EVEN IF THE EQUIPMENT AND SAFETY GEAR IS PROPERLY MAINTAINED, AND THAT SUCH MALFUNCTION MAY CAUSE INJURY. YOU FURTHER AGREE THAT, BEFORE ANY USE OF THE SERVICES, YOU WILL PERFORM THE SAFETY INSPECTION DESCRIBED IN THE RENTAL AGREEMENT, AND YOU WILL NOT USE THE EQUIPMENT OR SAFETY GEAR THAT FAILS THE SAFETY INSPECTION AND WILL NOTIFY FLOA OF SUCH FAILURE. YOU AGREE THAT USING THE EQUIPMENT INVOLVES MANY INHERENT, OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS, WHICH MAY RESULT IN INJURY OR DEATH TO YOURSELF OR OTHERS, AS WELL AS DAMAGE TO PROPERTY, AND THAT SUCH RISKS, DANGERS, AND HAZARDS CANNOT ALWAYS BE PREDICTED OR AVOIDED. Such risks, dangers, and hazards include and relate to, but are not limited to:

o other marine vehicles

o surfboards

o paddleboards

o kayaks

o swimmers

o other third parties

o buildings

o objects

o marine animals

o weather conditions

o water conditions

o other animals

o vegetation

o other permanent or temporary obstructions on or near waterways

o the possibility of colliding with other fixed objects

o the possibility of criminal or other third-party acts or omissions

o equipment or component malfunction

o safety gear or component malfunction

o negligent acts or omissions by any released person

o Your or any third person’s negligent acts or omissions, and

o Your underlying known or unknown health conditions.

YOU AGREE THAT ALL SUCH RISKS, DANGERS, AND HAZARDS, WHETHER KNOWN OR UNKNOWN, ARE YOUR SOLE RESPONSIBILITY AND YOU ASSUME ALL RELATED RISKS.

You further agree that if Your use of any of the Services causes any injury or damage to another person or property, then You may be liable for all resulting injuries, damages, and related costs, and You agree to indemnify the Released Persons with respect to any such claims. By choosing to use the Equipment and Safety Gear, You assume full and complete responsibility for all related foreseeable and unforeseeable risks, dangers, and hazards, and You agree that Floa and all other Released Persons are not responsible for any death, injury, damage, or cost caused by You with respect to any person or property, including the Equipment and Safety Gear itself.

YOU AGREE, WITHOUT LIMITATION, TO INDEMNIFY AND HOLD HARMLESS ALL RELEASED PERSONS FROM ANY DEATH, INJURY, OR DAMAGE TO YOURSELF, ANOTHER PERSON OR PERSONS, OR PROPERTY ARISING OUT OF OR IN ANY WAY CONNECTED TO YOUR USE OF THE SERVICES.

II. Miscellaneous.

Section 3 PFDs; Safety.
Floa requires that all users of the Services wear at least a Type III US Coast Guard approved personal floatation device that has been properly sized, fitted, and fastened, according to the manufacturer’s instructions. Wearing a Type III approved PFD, properly sized, fitted, and fastened, while partaking in water sports may help protect against accidental drowning; however, PFDs are not 100% effective, do not protect against all drownings, and do not protect against other injuries. FLOA AND THE OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THE QUALITY OR SAFETY CHARACTERISTICS OF ANY SAFETY GEAR, AND YOU AGREE THAT FLOA AND THE OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY INJURY YOU SUFFER WHILE USING ANY OF THE SERVICES, WHETHER OR NOT YOU ARE WEARING SAFETY GEAR AT THE TIME OF INJURY. YOU ASSUME ALL RISK OF NOT WEARING SAFETY GEAR OR OTHER PROTECTIVE CLOTHING AND GEAR. Any PFD that Floa, its services, or Release Persons provide to You is intended for the use of persons that have a chest size of no smaller than thirty inches (30”) and no larger than fifty-two inches (52”). You agree that, when using any of the Services, You might need to take additional safety measures and precautions that are not specifically addressed in this Release.

Section 4 Term and Termination.
The term of this Release begins when You first access the Services, and ends 10 years after Your last use of the Services. For the avoidance of doubt, the terms of this Release apply to any renewal of Your Annual Membership and to any short-term subscriptions You purchase subsequent to Your initial subscription.

You may terminate Your use of the Services at any time; provided, however, that the term of this Release continues in accordance with this Section. This Release remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how Your use of the Services is terminated.

Section 5 Notices.
You may contact Floa by writing or emailing at the address listed below:

601 Innovation Way
Daytona Beach, FL 32114 info@floa.co

Section 6 Choice of Law; Dispute Resolution.
This Release is governed by, and must be construed and enforced in accordance with, the laws of Delaware, excluding principles of conflicts of laws. For every dispute regarding this Release: (i) each party consents to the jurisdiction of the courts of Delaware and agrees that those courts have personal jurisdiction over each party; (ii) venue must be in Delaware; and (iii) the parties must submit the dispute to mandatory mediation held in Delaware. Every mediation must be completed within 6 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 6-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.

Further, if Floa prevails in litigation against, or settles a dispute with, You to enforce its rights under this Release, Floa shall be entitled to its costs, expenses, and reasonable attorneys’ fees (whether incurred at or in preparation for trial, appeal, mediation or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Floa may be entitled.

Section 7 Waivers.
No waiver of any breach of any provision of this Release is a waiver of any other breach or of any other provision of this Release. The terms of this Release may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Floa, the Released Persons, and their respective affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings, but in each such instance only to the extent recorded during Your use of the Services (a) for purposes of maintaining the safety and functionality of the Services and (b) for purposes of promoting or marketing the use of the Services; (2) grant to Floa, the Released Persons, and their respective affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice, at any time that You are using the Services, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Floa or the Released Persons may decide in their sole discretion in connection with the promotion or marketing of the Services, the photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.

Section 8 Cumulative Remedies.
All rights and remedies granted under or referred to in this Release are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.

Section 9 Final Agreement; Modification by Floa.
This Release and the Rental Agreement contain the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Release and the Rental Agreement supersede all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Your consent, Floa may unilaterally amend, modify, or change this Release, in its sole discretion and without any notice or cause, and by continuing to use any Services after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. You must carefully review this Release on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Release, Floa will post a notification on the Platform.

Section 10 Severability.
If a court deems any provision of this Release illegal or otherwise unenforceable for any reason, You agree that that provision shall be severed from the Release and shall be inoperative, and the remainder of the Release shall remain operative and shall be binding on the parties.

Section 11 Definitions.
"Equipment Units" means the equipment stations that allow the docking and storage of the Equipment.
"Claims" or "CLAIMS" means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys’ fees, whether incurred at or in preparation for trial, appeal, mediation, or otherwise), damages (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Services, including any of the Equipment, Safety Gear, or Equipment Units, or (b) Your use of any of the foregoing.
"Floa" means Floa, Co., the provider of the Services.
“Released Persons” or “RELEASED PERSONS” means, collectively, (i) Floa and all of its and their owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (ii) any lender to Floa and all of such lender's owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (iii) every sponsor of any of the Services and all of the sponsor’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (iv) delivery drivers of the Equipment Floa rents out, and (v) every holder of property on which is located an Equipment Unit and all of the property holder’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns.
"Services" means the Floa mobile application ("Mobile Application"), the Floa websites, floa.co (the "Website") (the Mobile Application and the Website, collectively, the "Platform"), and the Floa services which are composed of several elements, including the Equipment Units, Floa Equipment, including Floa Safety Gear, and all related equipment, personnel, and information.

Your Agreement to Release

I certify that I am the person renting the Equipment, I am 18 years of age or older, and I have read and agreed to all of the terms and conditions set forth in this Release.

I certify that I am the Parent or Legal Guardian of the, or any, Subscriber, who is 13 years of age or older, and I have read and agreed to the terms and conditions set forth in this Rental Agreement on behalf of myself and the Subscriber, and I authorize the use of the Services by such minor Subscriber. I certify that I understand that Floa, its services, or other Released Persons do not provide lifejackets that are intended to be worn by Subscribers under the age of 18 and, in such case where the minor does not fit in any provided lifejacket, that I must provide my own for such minor and ensure its fit.