PARTICIPANT ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY, AND COVENANT NOT TO SUE
In consideration of being permitted to participate in certain activities conducted and/or facilitated by Top Echelon Software. (“TES”) to Top Echelon Connect and Top Echelon Conference/Convention Activities (“Activities”), I, on behalf of myself, my heirs, personal representatives, executors, administrators, assigns, and all others who may claim by or through me at any time including any representatives(s) of my estate agree as follows (the “Agreement”):
1. I desire to and I have come to participate in the Activities of my own free will and not due to any inducement or duress whatsoever. I understand that part of the required consideration for being allowed to participate in the Activities is my execution of this Agreement.
2. I assume all responsibility for and all risk of personal injury, death, or property damage that may occur to me while participating in the Activities and/or using equipment or facilities provided by TES, or otherwise arising out of or attributable to the Activities, howsoever caused, whether known, unknown, anticipated, or unanticipated.
3. For valuable consideration, including but not limited to, the opportunity to participate in activities, I for myself, my heirs, personal representatives, executors, assigns, successors, administrators and anyone else claiming by or through me HEREBY EXPRESSLY RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS FROM, AND COVENANT NOT TO SUE TES, or any officers, directors, owners, employees, agents or sponsors (collectively, the “Released Parties”) for any claims, including, but not limited to injuries, property damage, personal injury, death, losses, costs, liabilities or other damages, whether foreseeable or not, arising from negligence, carelessness, strict liability, or otherwise, which I or my heirs, personal representatives, executors, administrators and assigns may presently or at any time in the future have against such parties on account of, arising out of, or attributable to my participation in the Activities and/or using equipment or facilities provided by TES, howsoever caused, whether known, unknown, anticipated, or unanticipated.
4. In the event of a breach of this Agreement by me, my heirs, personal representatives, assigns, successors, administrators and anyone else claiming by or through me, I agree and warrant that I will be held liable to pay, and will pay, each of the Release Parties, their actual attorney fees, court costs, payments, and other expenses caused by such breach and will otherwise make them whole for any and all sums of money they have to expend because of a breach of this Agreement by me, my heirs, personal representatives, executors, assigns, successors, administrators and anyone else claiming by or through me, and that I will otherwise be liable as provided by law. I also agree and represent that if I, my heirs, personal representatives, executors, assigns, successors, administrators and anyone else claiming by or through me files or threatens to file suit against any of the Released Parties for any claim that is or may be barred and/or relinquished by this Agreement, such will constitute a material breach of this Agreement. Notwithstanding the foregoing remedies for such a breach, I agree and warrant that the existence of such remedies in favor of the Released Parties in no way deprives them of their other rights under this Agreement or at law including their right to have any such suit or claim, I or those acting through me may bring against them barred or dismissed based on the releases and waivers set forth in this Agreement.
5. I understand and agree that if I, or anyone on my behalf, initiates any suit or action at law against any of the Released Parties for any loss or injury, no matter how minor or severe, to my person or property, that this document will be used in court.
6. I warrant and represent that I am over the age of 18 years and am competent to execute this document. I warrant and represent that I am in good physical condition and that I understand that the Activities may involve mental and physical exertion. I warrant and represent that I have consulted my physician and I alone am aware of my physical and mental limitations and have considered and chosen to accept the risks, if any, associated with the Activities. I acknowledge that my participation in the Activities is completely voluntary on my part, that participation is not mandatory, and that I may choose not to participate in any or all of the Activities without penalty. I further represent and warrant that I have not shared any physical limitations or mental limitations that are unique to me with TES, choosing instead to hold such information private.
7. I understand that I am in no way obligated to sign this Agreement and participate in the Activities, and further that I am free to seek the advice of independent legal counsel at my own expense prior to signing this Agreement and that any advice, suggestions, or statements made by any of the Released Parties are not binding upon them unless they are set forth in this Agreement.
8. I hereby agree and acknowledge that all the terms and conditions of this Agreement will continue in full force and effect now and in the future at all times during which I participate directly or indirectly in the Activities, or while associated with any of the Released Parties, and all the terms of this Agreement will be binding upon my heirs, assigns, personal representatives, executors, successors and administrators of my estate.
9. This is a legally binding contract. If a Court should decide that any clause or other portion of this contract is illegal or otherwise unenforceable, I agree that such a determination will not affect the validity and enforceability of the remaining provisions hereof, all of which will remain in full force and effect.
10. This Agreement is governed by the laws of the state of Ohio other than those relating to conflicts of laws. All disputes arising under this Agreement must be litigated in either the Stark County Court of Common Pleas of the United States District Court for the Northern District of Ohio, and the parties consent to submit themselves to the jurisdiction and venue of those courts.
11. Any dispute arising out of, relating to this Agreement, a breach hereof, must be resolved by arbitration in Canton, Ohio, in accordance with the rules of the American Arbitration Association then existing, provided that discovery as provided for under the Ohio Rules of Civil Procedure is available to all parties to the arbitration. This agreement to arbitrate is specifically enforceable and the arbitration award is final and judgment may be entered upon it in any court having jurisdiction over the subject matter of the dispute. TES has the right, without awaiting the outcome of the arbitration, to seek from an appropriate court provisional remedies including, but not limited to, temporary restraining orders or preliminary injunctions before, during or after arbitration. Seeking such a remedy is not a waiver of TES’s right to compel arbitration.
12. I HAVE READ THIS ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY AND COVENANT NOT TO SUE WITHOUT ANY TIME CONSTRAINTS BEING PLACED UPON ME AND I FULLY UNDERSTAND ITS TERMS AND THAT I AM GIVING UP IMPORTANT LEGAL RIGHTS. I UNDERSTAND THAT I HAVE ASSUMED OBLIGATIONS BY SIGNING IT AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE, OR GUARANTEE BEING MADE TO ME. I INTEND MY SIGNATURE, ELECTRONIC OR OTHERWISE, TO BE A COMPLETE AND UNCONDITIONAL AGREEMENT TO THE TERMS OF THIS DOCUMENT.