Terms and Conditions | Native Girl Kayaking

This Release and Waiver of Liability Agreement (this "Agreement") is entered into by and between Native Girl Kayaking, LLC, a limited liability company organized and existing under the laws of the State of Mississippi ("Company"), and the undersigned individual participant ("Participant").

Participant desires to participate in one or more guided or unguided recreational kayaking trips, tours, or related activities on or in connection with the Mississippi River in areas between and adjacent to the States of Mississippi and Louisiana, including any transportation, instruction, training, equipment use, or other services provided or arranged by Company (collectively, the "Activity").

By signing this Agreement, Participant acknowledges and agrees that participation in the Activity is conditioned upon Participant's execution of, and agreement to be bound by, all terms and conditions of this Agreement.

1. Definitions

Defined Terms. For purposes of this Agreement, the following terms have the meanings set forth below:

"Activity" means any and all recreational kayaking trips, excursions, tours, lessons, trainings, demonstrations, preparation activities, pre-launch activities, post-activity activities, and related services provided, sponsored, arranged, or made available by Company, whether guided or unguided, including but not limited to:

Use, launch, landing, loading, unloading, or portage of kayaks, paddles, personal flotation devices, and any other watercraft, vessel, or equipment;
Use of any docks, landings, ramps, beaches, shorelines, access points, trails, vehicles, or other premises or facilities owned, leased, operated, controlled, arranged, or designated by Company or third parties in connection with the Activity (collectively, the "Premises"); and
Any transportation to, from, or between Activity locations that is provided, arranged, or facilitated by Company, whether by land or by water.

"Released Parties" means, collectively:

Company and any of its past, present, and future parents, subsidiaries, affiliates, members, managers, owners, officers, directors, shareholders, partners, employees, guides, contractors, instructors, agents, representatives, insurers, successors, and assigns; and
Any other person or entity that owns, leases, operates, or controls any of the Premises or equipment used in connection with the Activity, and such person's or entity's respective owners, officers, directors, employees, contractors, agents, representatives, insurers, successors, and assigns.

"Claims" means any and all claims, actions, causes of action, demands, suits, complaints, obligations, liabilities, damages (including personal injury, bodily injury, death, property damage, economic loss, and noneconomic loss), punitive or exemplary damages (to the extent not prohibited to be released under applicable law), costs, and expenses of any nature whatsoever (including attorneys' fees and costs), whether known or unknown, suspected or unsuspected, fixed or contingent, in law, at equity, or otherwise.

2. Participant Representations; Eligibility

Eligibility and Capacity. Participant represents and warrants that:

Participant is at least eighteen (18) years of age and has full legal capacity and authority to enter into and be bound by this Agreement; or
If Participant is under the age of eighteen (18), a parent or legal guardian with full legal authority has executed the separate parental or guardian consent and release attached hereto or provided by Company, and such parent or legal guardian agrees to be fully bound by, and to cause Participant to comply with, the terms of this Agreement.

In the event the signor under twenty-one (21), this agreement shall be interpreted solely and exclusively under the laws of the State of Louisiana. Otherwise, this agreement shall be solely and exclusively interpreted under the laws of Mississippi.

Physical Condition and Skills. Participant represents and warrants that:

Participant is in good physical health and has no medical, physical, psychological, or other condition that would impair or limit Participant's ability to safely participate in the Activity;
Participant has disclosed to Company any relevant medical conditions, physical limitations, allergies, or other health-related information that may affect Participant's safe participation in the Activity;
Participant possesses sufficient swimming ability and water safety awareness reasonably necessary to participate safely in the Activity, including the ability to tread water and to remain calm and oriented in the water in the event of a capsize or fall; and
Participant is not under the influence of alcohol, illegal drugs, or any medication or substance that could impair Participant's judgment, reaction time, coordination, or ability to safely participate in the Activity, and Participant agrees not to become so impaired at any time during the Activity.

Compliance With Instructions. Participant represents and agrees that:

Participant will listen carefully to, and comply with, all safety briefings, instructions, rules, guidelines, and directions given by Company, its guides, instructors, or other representatives;
Participant will use all equipment only in the manner instructed by Company and in accordance with generally accepted safety practices for kayaking and water activities; and
Participant will promptly notify Company if Participant believes that any condition, instruction, or equipment is unsafe or beyond Participant's capabilities.

3. Acknowledgment and Assumption of Risk

Inherent Risks of Water-Based Activities. Participant understands, acknowledges, and expressly agrees that kayaking on the Mississippi River and related water-based activities are inherently dangerous and involve serious risks of injury and death. Such risks include, without limitation:

Drowning, near-drowning, or asphyxiation;
Capsizing, falls into the water, entrapment under or around the kayak or other objects, and being swept away by currents;
Strong, unpredictable, or rapidly changing currents, wakes, waves, whirlpools, eddies, undertows, and varying water depths;
Collisions or contact with other watercraft (including commercial vessels, barges, towboats, recreational boats, and other kayaks), fixed objects, floating debris, submerged hazards, rocks, logs, pilings, bridges, docks, shorelines, and other natural or man-made obstacles;
Adverse or rapidly changing weather conditions, including wind, lightning, thunderstorms, rain, fog, extreme heat or cold, sun exposure, and reduced visibility;
Exposure to cold water, cold air, or other environmental conditions potentially leading to hypothermia, heat exhaustion, heat stroke, dehydration, sunburn, or other environmental injury;
Slips, trips, and falls on wet, uneven, or unstable surfaces, including docks, ramps, rocks, shorelines, trails, and inside or around vehicles or equipment;
Equipment malfunction or failure, including failure or improper use of kayaks, paddles, personal flotation devices, helmets, or other gear, whether provided by Company or by Participant;
Contact with or bites or stings from aquatic or terrestrial wildlife, including fish, insects, snakes, alligators, and other animals, as well as contact with plants, algae, or microorganisms, including those that may cause allergic reactions, infections, or disease; and
Risks associated with navigation on a major navigable waterway, including limited maneuverability of commercial vessels, wakes from large craft, restricted channels, and navigational hazards.

Additional General Risks. Participant further understands, acknowledges, and agrees that:

The Activity occurs in outdoor, natural, and commercial waterway environments that may be remote or difficult to access, which may delay or complicate rescue operations or medical treatment in the event of an incident;
There may be risks and dangers that are not known, not reasonably foreseeable, or not specifically described in this Agreement;
Company may rely on third parties for certain aspects of the Activity (including transportation, access to Premises, and emergency services), and such third parties may create or fail to mitigate risks;
Other participants may act negligently, recklessly, or in an unsafe manner, thereby increasing the risk of harm; and
Serious bodily injury, permanent disability, paralysis, or death may result from participation in the Activity.

Voluntary Assumption of Risk. Participant acknowledges that participation in the Activity is completely voluntary and that Participant is free to decline to participate or to discontinue participation at any time. With a full understanding of all such risks, both known and unknown, and to the fullest extent permitted by applicable law, Participant expressly and voluntarily:

Assumes all risks of participation in the Activity, including those described in this Agreement and any other risks, whether known or unknown, foreseeable or unforeseeable, and regardless of their cause; and
Accepts full responsibility for any and all injuries, losses, or damages that Participant may suffer arising out of or related to the Activity, except to the extent such injuries, losses, or damages are caused by the gross negligence or willful or intentional misconduct of a Released Party where applicable law prohibits the release of such claims.

4. Release of Claims and Covenant Not to Sue

Release of Claims. To the fullest extent permitted by applicable law, Participant, on behalf of Participant and Participant's heirs, executors, administrators, personal representatives, estate, successors, and assigns, hereby irrevocably and unconditionally releases and forever discharges each and all of the Released Parties from any and all Claims arising out of or in any way relating to:

Participant's participation in, or presence at or around, the Activity or the Premises;
The condition, design, selection, maintenance, or use of any equipment, facilities, or Premises used in connection with the Activity;
Any acts, omissions, negligence (including ordinary negligence), or other conduct of any Released Party in connection with the Activity, including but not limited to instruction, training, supervision, inspection, rescue operations, emergency response, or provision or failure to provide medical care; and
Any transportation to, from, or between locations used in connection with the Activity that is provided, arranged, or facilitated by any Released Party.

Scope of Release. Without limiting the generality of the foregoing:

This release is intended to be as broad and inclusive as permitted under applicable law and to release Claims for ordinary negligence of the Released Parties with respect to the Activity and the Premises;
This release does not extend to Claims that, under applicable law, cannot be released in advance as a matter of public policy, including Claims arising from the gross negligence or willful or intentional misconduct of a Released Party, to the extent such Claims may not lawfully be waived or released in advance; and
If and to the extent that any court of competent jurisdiction determines that any portion of this release exceeds the limits of enforceability under applicable law, such portion shall be modified or severed, as appropriate, to the minimum extent necessary to render the remainder of this Agreement enforceable.

Covenant Not to Sue. To the fullest extent permitted by applicable law, Participant, on behalf of Participant and Participant's heirs, executors, administrators, personal representatives, estate, successors, and assigns, covenants and agrees that Participant will not initiate or maintain, or assist in initiating or maintaining, any Claim, lawsuit, arbitration, or other proceeding against any Released Party based upon, arising out of, or in any way related to any matter released in this Agreement, except as may be required to enforce Participant's rights (if any) with respect to non-waivable claims under applicable law.

Indemnification for Breach of Covenant Not to Sue. Participant further agrees that, if Participant or anyone on Participant's behalf asserts or pursues any Claim in breach of the covenant not to sue set forth in this Section 4, Participant shall, to the fullest extent permitted by applicable law, indemnify, defend, and hold harmless the Released Parties from and against any and all resulting Claims, judgments, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs).

5. Indemnification and Hold Harmless

Participant Indemnity Obligations. To the fullest extent permitted by applicable law, Participant agrees to indemnify, defend, and hold harmless the Released Parties from and against any and all Claims, including third-party Claims, arising out of or relating to:

Any injury, death, or property damage suffered by Participant in connection with the Activity or while on or about the Premises (except to the extent caused by the gross negligence or willful or intentional misconduct of a Released Party that cannot be released under applicable law);
Any injury, death, or property damage caused in whole or in part by Participant's acts, omissions, or conduct, whether negligent, reckless, or intentional, during or in connection with the Activity or while on or about the Premises;
Participant's violation of any law, rule, regulation, or ordinance in connection with the Activity or while on or about the Premises; and
Participant's violation of any term, condition, representation, or warranty in this Agreement.

Scope of Indemnity. Participant's indemnity obligations under this Section 5 include, without limitation:

Payment of all damages, settlements, awards, fines, penalties, and other amounts;
Payment of all costs and expenses incurred in investigating, defending, or settling any Claim, including reasonable attorneys' fees and costs, experts' fees, court costs, and other litigation or arbitration expenses; and
Cooperation, at Participant's own expense, in the investigation and defense of any indemnified Claim, including providing truthful testimony and information reasonably requested by any Released Party or its counsel.

6. Medical Treatment; Health and Safety

Consent to Emergency Medical Treatment. In the event of any accident, illness, injury, or medical emergency involving Participant arising out of or in connection with the Activity or while on or about the Premises, Participant:

Authorizes Company and its representatives, at their discretion and without any obligation to do so, to secure or provide first aid, emergency medical treatment, evacuation, or transportation to a medical facility for Participant;
Consents to the provision of such medical care by emergency medical personnel, physicians, hospitals, or other medical providers as may be necessary or advisable in the circumstances; and
Agrees to be solely responsible for any and all costs and expenses associated with any such medical treatment, evacuation, or transportation, including but not limited to ambulance services, hospital costs, physician fees, medications, and follow-up care.

No Guarantee of Medical Personnel or Facilities. Participant understands and agrees that:

Company may not have medical personnel, equipment, or facilities available at the location of the Activity or on the Premises; and
Any decision by Company or its representatives to provide or arrange for emergency response or medical care is voluntary and does not create any duty or obligation to provide such services in any or all circumstances.

Health Insurance. Participant acknowledges and agrees that:

Company does not provide health, medical, or accident insurance coverage for Participant; and
It is Participant's sole responsibility to maintain adequate health, medical, and accident insurance coverage that is valid for participation in water-based recreational activities in the Activity area.

7. Personal Property; Equipment Use

Responsibility for Personal Property. Participant understands and agrees that:

Participant is solely responsible for the care, custody, and control of Participant's personal property, including but not limited to clothing, personal effects, mobile phones, cameras, jewelry, identification documents, money, wallets, keys, eyeglasses, and any other valuables;
The Activity environment, including water exposure, weather, and transportation, poses a high risk of loss, theft, or damage to personal property; and
To the fullest extent permitted by applicable law, Company and the other Released Parties shall have no responsibility or liability for any loss, theft, or damage to Participant's personal property arising out of or relating to the Activity or the Premises, regardless of cause.

Use of Company Equipment. Where Company provides or makes available kayaks, paddles, personal flotation devices, helmets, or other equipment (collectively, "Company Equipment"), Participant agrees that:

Participant will inspect all Company Equipment before use and will not use any Company Equipment that Participant believes to be unsafe, defective, or beyond Participant's capabilities;
Participant will use all Company Equipment only in the manner instructed by Company and in accordance with generally accepted safety practices;
Participant will promptly report to Company any damage, malfunction, or defect in any Company Equipment;
Participant will return all Company Equipment at the end of the Activity in substantially the same condition as when received, ordinary wear and tear excepted; and
Participant will be responsible for any loss of, or damage to, Company Equipment caused by Participant's negligence, misuse, or willful misconduct, normal wear and tear excepted.

Participant-Supplied Equipment. If Participant uses Participant's own kayak, personal flotation device, or other equipment, Participant:

Represents and warrants that such equipment is in good and safe working order and suitable for the Activity;
Assumes all risk of equipment failure and its consequences; and
Acknowledges that Company has no obligation to inspect, maintain, repair, or ensure the adequacy or safety of Participant-supplied equipment.

8. No Representations or Warranties by Company

Condition of Premises and Equipment. Participant understands and agrees that:

Company makes no representations, warranties, or guarantees, express or implied, oral or written, concerning the condition, design, or safety of the Premises or any Company Equipment, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, or noninfringement;
Natural outdoor and water environments are inherently variable and may include hazards that cannot be eliminated without fundamentally altering the nature of the Activity; and
Participant has made Participant's own assessment of the Premises and the Company Equipment and accepts them "as is" and "with all faults," subject only to any rights that cannot be disclaimed under applicable law.

No Safety Guarantee. Participant acknowledges that:

Company does not and cannot guarantee the safety of Participant, other participants, or any other person in connection with the Activity; and
Any statements or information provided by Company or its representatives regarding conditions, difficulty level, or Participant's ability to safely participate are general in nature and do not constitute a guarantee, representation, or warranty of safety or suitability.

No Reliance on Unwritten Statements. Participant acknowledges and agrees that:

Participant is not relying on any oral statements, representations, or promises made by any Released Party that are not expressly set forth in this Agreement; and
No oral or written statements or assurances made before or after the execution of this Agreement shall be deemed to modify, amend, or supplement this Agreement unless set forth in a written document signed by both Participant and an authorized representative of Company.

9. Compliance With Laws and Rules

Compliance Obligations. Participant agrees to comply with:

All applicable federal, state, and local laws, regulations, and ordinances (including but not limited to navigational rules, boating regulations, and safety requirements) governing the use of the Mississippi River and surrounding areas;
All posted rules, guidelines, and instructions of Company relating to the Activity and the use of the Premises or Company Equipment; and
All lawful directions of Company personnel and any law enforcement or regulatory authorities in connection with the Activity.

Alcohol and Substance Restrictions. Participant agrees that:

Participant will not consume alcohol, illegal drugs, or any impairing substance while participating in the Activity or at any time that could impact Participant's safety or judgment during the Activity;
Participant will not participate in the Activity if Participant is impaired or under the influence of any substance that could affect Participant's ability to safely participate; and
Company may, in its sole discretion, refuse to permit Participant to participate or continue participating in the Activity if Company reasonably believes that Participant is impaired or otherwise poses a safety risk to Participant or others.

10. Governing Law; Venue; Jurisdiction

Governing Law. This Agreement, and any Claim arising out of or relating to this Agreement, the Activity, or Participant's presence on or about the Premises, shall be governed by and construed in accordance solely and exclusively with the laws of the State of Mississippi, without giving effect to any choice-of-law or conflict-of-laws rule or provision that would result in the application of the laws of any jurisdiction other than the State of Mississippi, unless the participant is under the age of 18, in which case it shall be solely and exclusively with the laws of the State of Louisiana.

Venue and Jurisdiction. Any and all actions whatsoever, with tort, equity, or contract, shall solely and exclusively be in any Adams County, Mississippi state court and the parties hereby waive any right to a jury trial.

Effect of Other State Laws. Participant understands that portions of the Activity may occur in or adjacent to the State of Louisiana, and that the laws of Louisiana or federal maritime or admiralty law may apply to certain Claims or issues notwithstanding the governing law provision above. Nothing in this Agreement is intended to waive or release any Claim that cannot be waived or released under the mandatory law of any jurisdiction that is held to apply, but this Agreement shall be construed to provide the maximum protection to the Released Parties consistent with such law.

11. Waiver; Survival

No Waiver. No failure or delay by any Released Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or remedy. Any waiver of any provision of this Agreement must be in writing and signed by an authorized representative of Company, and any such waiver shall be effective only in the specific instance and for the specific purpose for which given.

Survival. All provisions of this Agreement that by their nature are intended to survive the termination or completion of the Activity, including, without limitation, the releases, waivers, covenants not to sue, indemnification obligations, governing law and venue provisions, and any other provisions necessary to give them effect, shall survive such termination or completion and shall remain in full force and effect to the maximum extent permitted by law.

12. Severability; Reformation

Severability. If any provision or portion of this Agreement, or the application thereof to any person or circumstance, is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable under applicable law:

Such provision or portion shall be deemed severed from this Agreement to the minimal extent necessary to cure such invalidity, illegality, or unenforceability; and
The remaining provisions of this Agreement, and the application of such provision or portion to persons or circumstances other than those as to which it is held invalid, illegal, or unenforceable, shall continue in full force and effect to the maximum extent permitted by law.

Reformation. To the extent permitted by applicable law, the parties expressly request and authorize any court of competent jurisdiction to modify, reform, or interpret any provision of this Agreement to the minimum extent necessary to render such provision valid and enforceable while preserving, to the greatest extent possible, the parties' expressed intent to allocate risks and releases of liability as set forth in this Agreement.

13. Entire Agreement; Amendment; Binding Effect

Entire Agreement. This Agreement constitutes the entire agreement and understanding between Participant and Company with respect to the subject matter hereof and supersedes all prior or contemporaneous negotiations, representations, understandings, and agreements, whether written or oral, relating to such subject matter.

Amendment. This Agreement may be amended, modified, or supplemented only by a written instrument signed by Participant and a duly authorized representative of Company. No oral statements or agreements shall modify or amend this Agreement.

Binding Effect; Successors and Assigns. This Agreement shall be binding upon and enforceable against Participant and Participant's heirs, executors, administrators, personal representatives, estate, successors, and assigns, and shall inure to the benefit of Company and all other Released Parties and their respective successors and assigns.

14. Miscellaneous

Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

Interpretation. This Agreement shall be interpreted fairly and in accordance with its plain meaning, and not strictly for or against any party, regardless of which party drafted or caused this Agreement or any portion thereof to be drafted.

Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures transmitted by facsimile, email in portable document format (PDF), or through an approved electronic signature platform shall be deemed original signatures and shall be fully effective for all purposes.

15. Participant Acknowledgment

By paying consideration to Native Girl Kayaking, participant agrees:

Participant has carefully read this entire Agreement, understands its contents, and has had the opportunity to ask questions and to consult with legal counsel of Participant's choice before signing.
Participant understands that this Agreement includes a release and waiver of legal rights, including the right to sue the Released Parties for certain types of Claims, and that it imposes significant obligations on Participant, including indemnification obligations.
Participant enters into this Agreement freely and voluntarily, without any inducement, assurance, or guarantee, and with the intent to be legally bound.
Participant is not relying on any statements or representations by any Released Party that are not expressly set forth in this Agreement.
Participant understands that this Agreement shall be effective and enforceable as of the date it is signed by Participant and that it applies to the Activity on the date of signature and to any future participation in the Activity unless and until revoked in writing by Participant and accepted in writing by Company, provided that no such revocation shall affect any Claims arising from activities that occurred prior to such revocation.