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In consideration for borrowing and using tools and other items (the “Equipment”) and using expendable items and supplies (“Expendables”) (altogether, the “Materials”) from the Northeast Seattle Tool Library, a project of Sustainable NE Seattle (altogether, the “Organization”), I hereby agree as follows in this Release and Waiver of Liability Agreement (the “Agreement”):
1. Responsible for Equipment
1.1. Proper Use and Care
I am responsible for the proper use and care of the Equipment when checked out to me. I may use the Equipment on or off the Organization’s property.
1.2. Liable for Damages
I shall be liable for the full replacement cost of any Equipment that is damaged, destroyed or lost while in my care, regardless of fault. The Equipment shall be deemed in my care until the Organization confirms the Equipment has been returned.
1.3. Must be 18-Year-Old
Only individuals 18 years or older may use the Equipment.
1.4. I am Responsible for Injuries I Cause
I am responsible for any injuries or harm caused by people using Materials borrowed under my name. I am responsible for friends and family members who I permit to check out Materials under my name and any injuries or damages they may cause or suffer. The Organization shall presume any friend or family member checking out Materials under my name has been permitted to do so by me and is acting as my agent.
2. Use of Premises
Sometimes the use of Materials may occur on the Organization’s premises (the “Premises”). I understand and agree that when using the Materials, I shall only use the Premises as permitted the Organization. I further agree that I am responsible for the proper use and care of the Premises and any of the Organization’s property thereon.
3. Assumption of Risk
3.1. Dangerous Activity
Using the Materials may be dangerous and may involve the risk that I sustain serious injury, temporary or permanent disability, death and property damage. Such injuries may also include, but are not limited to, physical or psychological injury, pain, suffering, illness, disfigurement, temporary or permanent disability (including paralysis), economic or emotional loss and death
3.2. No Claim of Expertise
No employee, member, volunteer, board member, partner or affiliate of the Organization claims expertise regarding the Materials, regardless of whether any such person discusses the use of any of the Materials with me.
3.3. Use of Materials Unsupervised
The Organization shall not supervise my use of the Materials and the Organization does not provide medical services. Any injury I may sustain while using the Materials may be compounded by negligent or delayed medical service.
3.4. Seek Medical Approval
I shall seek a qualified medical professional’s advice regarding using any Materials before I use such Materials. My failure to seek advice and approval of a qualified medical professional before using any Materials could lead to my permanent disability or death, or my unborn child’s permanent disability or death if I am pregnant.
3.5. Possibly Unsafe Expendables
I acknowledge that the Organization does not make any representations or warranties regarding the Expendables or other materials supplied to me by the Organization. Such Materials may malfunction or break, possibly causing injuries or damages to myself or others.
3.6. Examples Scenarios that Could Cause Injury
By way of example, and not limitation, injuries resulting from my use of the Equipment may result from the following scenarios:
(a) Failing to follow instructions provided by the Organization staff;
(b) My use of the Materials provided by the Organization, which may malfunction or break;
(c) My use of Expendables provided by the Organization to repair my bicycle or other possessions of mine, which may malfunction or break;
(d) My misuse or modification of the Equipment provided by the Organization;
(e) The Organization’s improper maintenance of the Materials;
(f) The Organization’s negligent instruction or supervision, including, but not limited to, instruction and coaching; or
(g) My use of the Materials against the advice of, or without seeking prior consultation from, a qualified medical professional.
3.7. Assumption of Risk
I VOLUNTARILY AND FREELY ASSUME ALL RISKS AND DANGERS THAT MAY OCCUR PURSUANT TO MY USE OF THE MATERIALS OR MY PRESENCE ON THE PREMISES, INCLUDING THE RISK OF INJURY, DEATH OR PROPERTY DAMAGE, EVEN IF CAUSED BY THE ORGANIZATION’S NEGLIGENCE.
FURTHERMORE, I VOLUNTARILY AND FREELY ASSUME ALL RISKS AND DANGERS THAT MAY OCCUR PURSUANT TO MY PERMITTING FRIENDS OR FAMILY MEMBERS TO USE MATERIALS UNDER MY NAME.
4. Release from Liability
4.1. Released Parties
I hereby agree, on behalf of myself, my heirs and my personal representatives, to fully and forever discharge and release the Organization and its affiliates, and their respective partners, agents, operators, managers, employees, volunteers and representatives (altogether, including the Organization, the “Released Parties”) from any and all claims I may have or hereinafter have for any injury, temporary or permanent disability, death, damages, liabilities, expenses or causes of action (altogether, “Claims”), now known or hereinafter known in any jurisdiction in the world, attributable or relating in any manner to my use of the Materials or my presence on the Premises, whether caused by the negligence of the Organization or any of the Released Parties or by any other reason.
4.2. Complete Release
I acknowledge and agree that this Agreement for a potentially dangerous activity is intended to be, and is, a complete release, up to the extent allowed by law, of any responsibility of the Released Parties for all personal injuries, temporary or permanent disability, death or property damage sustained by me (or others using the Materials under my name) while on the Premises or using the Materials.
4.3. Covenant Not to Sue
I agree, for myself and all my heirs, not to sue the Released Parties or initiate or assist in the prosecution of any claim for damages or cause of action against the Released Parties which my heirs or I may have because of any personal injury, death or property damage I may sustain while using the Materials or while on the Premises.
I shall defend, indemnify and hold harmless the Released Parties from and against any third-party losses, damages, actions, suits, claims, judgments, settlements, awards, interest, penalties, expenses (including reasonable attorneys' fees) and costs of any kind for any personal injury, loss of life or damage to property sustained by reason of or arising out of (A) my use of the Materials; (B) the use of the Materials checked out under my name; or (C) my negligent actions while on the Premises.
6. Medical Treatment Release
The Organization may secure any medical treatment for me should the Organization determine I such care because of my use of the Materials on the Premises. I accept full responsibility for all costs related to my medical treatment, including any transport costs, and I release the Released Parties from any liability related to my treatment or transport.
7. Responsibility for Personal Property
I am fully responsible for property and personal belongings that I (A) bring on the Premises; (B) use with the Materials; or (C) use the Materials on. The Organization is not responsible for my property and personal belongings.
8. No Representations by the Organization
The Organization makes no representation as to the Materials’ safety and condition. I shall use the Equipment supplied by the Organization in its "AS IS" condition. I am not relying upon any representation or statement by the Organization or the Organization's employees, agents, sponsors or representatives regarding this Agreement or the Equipment, except to the extent such representations are expressly set forth in this Agreement.
9.1. Dispute Resolution
9.1.1. Dispute Defined
Any dispute or conflict between the Organization and me arising out of or relating to this Agreement, its enforcement or interpretation, an alleged breach, default or misrepresentation hereunder (altogether, a “Dispute”), shall be resolved in accordance with the procedures specified in this Section 9.1, which shall be the sole and exclusive procedures for the resolution of any such disputes (except as otherwise set forth in this Agreement). These provisions shall be valid, binding, enforceable and irrevocable and will survive any termination of this Agreement.
If I wish to assert such a Dispute, I shall promptly notify such the Organization and any applicable third parties (each involved party a “Party”) in writing of such Dispute, and the involved Parties shall attempt for a period of fifteen (15) business days to resolve any such Dispute promptly by negotiation between the Parties. All such negotiations are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
188.8.131.52 Mediation Required
If good-faith negotiation under Section 9.1.2 fails to provide the Parties with a resolution to such Dispute, as a condition precedent to the filing of any Claim with a court or arbitral body, the Parties agree to first mediate any Claims between them. The Mediation shall be administered according to the American Arbitration Association’s Commercial Mediation Rules and shall take place in Seattle, WA using a mediator upon whom the Parties have mutually agreed. The mediation shall commence upon the parties' provision of a joint, written request for mediation to the mediation service. Such request shall include a sufficient description of the Dispute and relief requested. Each Party shall cooperate with the mediation service in all reasonable respects and participate in good faith wherever required. Mediation fees and expenses shall be borne equally by the Parties. Any settlements reached because of the mediation shall be binding and enforceable on the Parties. If, after the earlier of (A) sixty (60) days following the commencement of a mediation hereunder or (B) completion of the initial mediation session, the Parties still have not come to a resolution for any reason, they may seek to resolve the Dispute by binding arbitration or litigation. Until such time, neither binding arbitration nor litigation may be pursued by the Parties. Additionally, if a Party refuses to engage with the mediation process in good faith, such Party shall not have the commence any litigation or binding arbitration regarding a Claim related to the mediation.
184.108.40.206 Communications Confidential
All communications (whether oral or written) are confidential and shall be treated by the Parties as compromise and settlement negotiations for the purposes of the Federal Rules of Evidence as well as any applicable, corresponding state rules. Notwithstanding the foregoing, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable because of its use in the mediation.
220.127.116.11 Equitable Relief
Either Party may seek equitable relief (such as an injunction) prior to or during the mediation to preserve the status quo and protect such Party’s interests during the process.
9.2. Governing Law and Venue
This Agreement shall be governed by and interpreted in accordance with the laws of the Washington State, without giving effect to the principles of conflicts of law. Unless otherwise agreed, the Parties shall bring any action arising out of this Agreement in Washington State court located in King County, Washington. The Parties hereby submit to the exclusive jurisdiction and venue of any such court.
9.3. Legal and Equitable Remedies
My breaching, or threatening to breach, this Agreement may cause the Organization irreparable harm for which there is no adequate legal remedy. If a breach or threatened breach occurs, the Organization may seek an injunction, without bond and without proof of actual damages to (A) prevent me from further breaching this Agreement; or (B) obtain any specific performance or equitable relief necessary to enforce the Organization’s rights under this Agreement.
9.4. Attorney Fees
If any Dispute between the Company and me results in litigation or arbitration, the prevailing party in such Dispute shall be entitled to recover reasonable fees, costs and expenses from the losing party, including without limitation, reasonable attorneys' fees and expenses.
If any provision, term, covenant or obligation of this Agreement, or its application, is held invalid, unenforceable or unlawful, such invalidity, unenforceability or unlawfulness, shall not affect the other provisions, terms, covenants or obligations of this Agreement, or their application, which all shall remain valid and enforceable in full force and effect to the extent permitted by law.
Rights, duties, obligations and liabilities which are intended to survive this Agreement’s termination shall survive such termination. Portions intended to survive include, but are not limited to, Sections 1.4, 3.7, 4, 5,6, 8 and 9.1.
No waiver of this Agreement shall be effective unless in writing and signed by an authorized representative of the waiving party. The failure of the Organization to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
No change, modification, amendment or addition of or to this Agreement shall be valid unless in writing and signed by authorized representatives of the Organization.
9.9. Entire Agreement
This Agreement, together with any appendices attached hereto and incorporated herein, sets forth the entire agreement between the Organization and me with respect to the subject matter hereof. As such, this Agreement shall supersede and replace all prior and contemporaneous communications (whether written or oral) of any kind or nature with respect to the subject matter contained herein.
9.10. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the Organization and me.
I acknowledge that I have read and understand this Agreement and its contents. I voluntarily and knowingly agree to the Agreements’ terms and conditions. In signing this Agreement, I give up substantial rights, including my right to sue and certain legal rights my heirs and personal representatives may have against any Released Party.
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