LIABILITY WAIVER AND RELEASE AGREEMENT
1. Voluntary Participation in Program. I agree to participate in a demonstration program ("Program") with Santa Cruz Bicycles, LLC, a California limited liability company ("SCB"), pursuant to which SCB may at its sole election provide me with bicycle products (collectively, "Test Products") for me to ride in order for me to assess Test Product function, sizing, durability, and design, and in order for SCB to receive feedback regarding same. I have voluntarily requested participation in the Program without undue influence of any kind by SCB. In consideration for being allowed to participate in the Program and receive Test Products, and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I agree to participate in the Program on the terms and conditions contained in this Agreement.
2. Assumption of Risk. I am aware that riding bicycles is a hazardous activity which can result in my serious injury or death. I am also aware that certain Test Products have not been manufactured by SCB. I represent and warrant to SCB that I possess the necessary skills and knowledge to safely use Test Products, and that I will use Test Products in a reasonable and safe manner under the circumstances. I AM VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES AND THE PROGRAM WITH FULL KNOWLEDGE OF THE DANGERS AND RISKS INVOLVED. I HEREBY ASSUME THE RISK OF MY INJURY OR DEATH RESULTING FROM MY PARTICIPATION IN THE PROGRAM AND MY USE OF TEST PRODUCTS, AND I VERIFY THIS STATEMENT BY EXECUTING THIS AGREEMENT.
3. Release. I, for myself and my successors, assignees, heirs, distributees, guardians, and legal representatives (collectively, the "Releasing Parties") hereby forever waive, release, and discharge SCB and its shareholders, officers, directors, employees, representatives, and agents, together with their successors, assigns, controlling parties, subsidiaries, and affiliates (collectively, "Released Parties") from any and all past, present, and future actions, claims, demands, damages, and costs (including without limitation attorneys' fees and medical bills), known and unknown, including without limitation any claims based on any actual or alleged negligence of any Released Parties or based on my death, disability, personal injury, or property damage (collectively, "Claims"), arising from or related in any way to my participation in the Program or my use of Test Products. Without limiting the foregoing, I further agree that neither I nor any Releasing Parties shall sue, take any legal action, or make any Claims against any of the Released Parties or any of their property as a result of my participation in the Program or any Test Product failure, and that in no event will SCB be liable for any consequential, special, or indirect damages.
4. Indemnification. I, for myself and the Releasing Parties, hereby agree to defend, indemnify, and hold the Released Parties harmless from and against any and all Claims arising from or related in any way to (a) my participation in the Program or my use of Test Products; (b) interpretation of this Agreement in connection with my participation in the Program; or (c) my breach of any representation, warranty, agreement or understanding contained in this Agreement or communicated to me by SCB in connection with my participation in the Program.
5. Confidentiality; Inventions. I, for myself and the Releasing Parties, hereby agree to keep confidential any and all information disclosed to or discovered by me in connection with my participation in the Program which I know or should know should remain confidential or which is communicated to me by SCB (orally or in writing) to be confidential, including without limitation any and all information concerning the existence or performance of existing or future SCB products and Test Product durability, function, and design. I, for myself and the Releasing Parties, hereby forever assign to SCB all of my right, title, and interest (including without limitation any and all ownership, licensing, and royalty rights) in and to any and all inventions, discoveries, designs, improvements, and developments conceived, discovered, or developed by me during my participation in the Program, all of which are and shall remain the sole property of SCB.
6. Damage or Theft. I acknowledge and agree that I am responsible for returning Test Products to SCB in the same condition as received. Should I damage any Test Product in any way beyond reasonable wear and tear, or if any Test Product is lost or stolen while in my care, I hereby authorize SCB to charge me the total cost of repairing the damage or the replacement cost of the Test Product, as reasonably determined by SCB.
7. Miscellaneous. Test Rider's participating in the Program does not make Test Rider an SCB employee. SCB is not obligated to provide Test Rider any Test Products, nor is SCB obligated to compensate Test Rider in any other way. Test Rider's participation in the Program can be terminated at any time by SCB for any reason or no reason. Any and all Test Products shall be immediately returned to SCB upon request. Each and every statement made by Test Rider in this Agreement is a representation and warranty given to induce SCB to allow Test Rider to participate in the Program, and SCB is relying thereon in allowing Test Rider to participate. This Agreement contains the entire agreement between SCB and Test Rider and shall control in the event of conflict with any other oral or written agreement or understanding. This Agreement and all Claims arising from Test Rider's participation in the Program shall be governed by the internal laws of the State of California law without regard to its conflict of laws doctrine and without application of rules favoring the non-drafting party. Jurisdiction and venue for any and all claims arising from this Agreement, regardless of legal theory, shall be in state court sitting in the City and County of Santa Cruz, California, unless otherwise directed by SCB. If any such action is removed to federal court for any reason, jurisdiction and venue shall be in the United District Court for the Ninth Circuit sitting in San Jose, California. If any provision of this Agreement is unenforceable, the remaining provisions shall remain in effect. Test Rider agrees that it would be impracticable to ascertain the amount of money damages sustained by SCB as a result of any breach of any provision of this Agreement by Test Rider and that SCB shall be entitled to specifically enforce the provisions hereof by way of equitable remedies (including without limitation injunctive relief). This Agreement shall survive termination of Test Rider's participation in the Program.
8. KNOWING EXECUTION. I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION HEREOF. I AM AWARE THAT THIS AGREEMENT IS A BINDING CONTRACT CONTAINING A RELEASE OF LIABILITY AND OTHERWISE AFFECTING MY LEGAL RIGHTS. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY AND HAVE HAD AN OPPORTUNITY TO DO SO PRIOR TO SIGNING THIS AGREEMENT. MY EXECUTION OF THIS AGREEMENT AND PARTICIPATING IN THE PROGRAM ARE KNOWING AND VOLUNTARY ACTS OF MY OWN FREE WILL.