Activity: 2018 Stinger Experience Tour (the “Activity”)

Assumption of the Risk and Test Drive Release

 

IMPORTANT – READ CAREFULLY BEFORE PROCEEDING – THIS IS A BINDING LEGAL CONTRACT

 

You understand and AGREE that by: (i) PHYSICALLY SIGNING BELOW, (ii) CLICKING THE “SUBMIT” BUTTON, AND/OR (iii) PARTICIPATING IN THE ACTIVITY, I AM AGREEING TO BE LEGALLY BOUND BY THIS ASSUMPTION OF THE RISK AND TEST DRIVE RELEASE (COLLECTIVELY, the “RELEASE”), WHICH INCLUDES INDEMNITIES TO THE RELEASED PARTIES (I.E., A REQUIREMENT THAT THE YOU DEFEND AND/OR REIMBURSE THE RELEASED PARTIES FROM/FOR CERTAIN LOSSES) AND A LIMITATION OF YOUR RIGHTS AND REMEDIES (YOU ARE WAIVING YOUR RIGHT TO SUE IF YOU ARE INJURED DURING THE ACTIVITY).  IF YOU DO NOT AGREE TO THIS RELEASE, YOU ARE NOT PERMITTED TO PARTICIPATE IN THE ACTIVITY.

COVENANTS AND AGREEMENTS
I agree for myself, and on behalf of my personal representatives, my heirs, next-of-kin, insurers, successors and assigns, as follows:
1. ACTIVITY PARTICIPATION.  I desire to participate in the Activity, including, without limitation, to drive or be a passenger in a Kia Stinger vehicle, or in any other way be involved for any purpose with the Activity.  In consideration of being permitted to participate in the Activity, I agree to all terms and conditions set forth in this Release.  This Release is binding upon and enforceable against me, my personal representatives, spouse, assigns, heirs and next of kin without limitation, and to the fullest extent permitted by Applicable Law (defined below).  I agree that this Release is not intended to be a general release subject to limitations and conditions that would otherwise apply under applicable state laws, ordinances, statutes, rules and regulations (collectively, “Applicable Law”), and agree to WAIVE ANY AND ALL GENERAL RELEASE LIMITATIONS PROVIDED BY APPLICABLE LAW OR ANY RIGHTS GRANTED TO ME UNDER APPLICABLE LAW.  This Release shall be interpreted as broadly as possible under the Applicable Law of the jurisdiction in which the Activity takes place.
2. RULES OF THE ACTIVITY.  If I am selected to participate in the Activity, I will follow the Released Parties’ (including their representatives) instructions and all Applicable Laws during the Activity.  I will operate the Stinger test-drive vehicle during the Activity in a safe manner and will observe all traffic laws.  I, and all passengers I allow in the vehicle, will use available safety belts while the vehicle is being operated.  I will not operate any mobile, handheld or other device, even in hands-free mode, while operating the Stinger test-drive vehicle during the Activity.  I will not operate or be a passenger in any vehicle during the Activity while under the influence of any alcohol, prescription medicine, or other drug which would impair my ability to operate or ride in a vehicle.  If requested by a representative of the Released Parties, I agree to perform and pass a breathalyzer screening with a reading of 0.0, which will be administered by the Released Parties’ representative before taking part in the Activity.  If I fail the Breathalyzer or refuse to take the test I may still ride in the vehicle for the Activity at the sole discretion of my driver.  In the event I (and/or any of my companions) at any time engage in behavior that (as determined by the Released Parties’ in their sole and absolute discretion) violates the previous sentence or is obnoxious, inappropriate, or threatening, illegal or that is intended to annoy, abuse, threaten or harass any other person, the Released Parties reserve the right to terminate the Activity early.  In such event, the representative of the Released Parties will have the right to end the Activity immediately and the representative shall have the right to immediately drive the vehicle back to the staging location where the test drive began or any other location on the test course in the representative’s sole discretion.  I agree to immediately stop driving the vehicle if requested by the Released Parties’ representative during the Activity.  I will not smoke in the vehicle at any time during the Activity.  I understand that the vehicle may collect data about the location of where I drive the vehicle during the Activity and I consent to the collection of such data by the Released Parties. 
3. PUBLICITY RELEASE.  In consideration of being permitted to participate in the Activity, and for good and valuable consideration, including the possibility of publicity, the receipt and sufficiency of which is hereby acknowledged, I grant permission to the Released Parties to photograph, film and observe me as part of my participation in the Activity.  I irrevocably grant to the Released Parties all services rendered by me for the Released Parties in connection with the development, production and/or distribution of print, graphic, audio and/or visual or other content, campaigns or programs relating to the Activity.  I understand and acknowledge that no compensation will be paid to me for the rights granted in this Release.  I grant to the Released Parties all rights of all kind and character whatsoever in all media and languages now known or hereafter devised throughout the universe, in perpetuity, in and to all work done, and all poses, acts, and appearances made by me for the Released Parties, my voice and instrumental, musical, or other sound effects produced by me, and in and to all of the results and proceeds of my services as well as in and to the right to use my name, likeness and photographs, either still or moving for all commercial and non-commercial purposes in connection with the Activity (and the advertising and promotion thereof).  I acknowledge that my activities hereunder are a “work made for hire” within the meaning of the U.S. copyright laws.  Without limiting the foregoing, I further grant to the Released Parties the right to adapt, change, edit, modify, add to, delete, reproduce, distribute and otherwise distribute the same in any manner and any method now known or hereafter devised.  I represent and warrant that I have the right to grant the consent above and that no further consents or releases are required by the Released Parties in order for it to make use of the photos and/or videos produced by the Released Parties.  I realize that the Released Parties are relying upon this Release, which is at substantial cost to the Released Parties.  I hereby agree that I will not assert or maintain against the Released Parties any claim, action, suit or demand of any kind or nature, whatsoever, including, but not limited to, those grounded upon invasion of privacy or of publicity or any other civil rights, defamation, libel or slander or for any other reason in connection with the exercise of the rights granted herein to the Released Parties.  I consent to having any information that I share with the representatives of the Released Parties during the Activity shared by the Released Parties with local Kia dealers.
4.  ASSUMPTION OF RISK.  My choice to participate in the Activity is knowing, voluntary, and made for my personal enjoyment. I understand that participation in the Activity involves inherent risks of accidents, property loss/damage, serious personal and bodily injury, death, and severe personal and economic losses.  These may result not only from my own or others actions, inactions, or negligence, or the condition of the facilities, equipment or vehicles. There may be other risks not known to me or reasonably foreseeable at this time.  I acknowledge that I am engaging in the aforementioned activity solely of my own accord.  I have considered the risks involved, and I voluntarily choose to assume these risks.  I hereby freely assume the above-mentioned risks and any harm, injury or loss that may occur to me or my property as a result of my participation in the Activity -- including any injury or loss caused by the negligence of the Released Parties (defined below) (its employees), any other sponsor/providers, and other Activity participants.
5. RELEASE FROM LIABILITY.  In consideration of being permitted to participate in the Activity, I accept and agree to the full contents of this Release and I fully and forever release and discharge Kia Motors America, Inc., DriveShop, LLC and their respective parent companies, subsidiaries, affiliates, directors, officers, shareholders, employees, agents, and insurers, and all others involved in the Activity (collectively “Released Parties”) from any and all injuries (including death), losses, damages, claims (including negligence claims), demands, lawsuits, expenses, and any other liability, of or to me, my property, or any other person, directly or indirectly arising out of or in connection with my participation in the Activity, even if it is due to the negligence, act, omission or other fault of the Released Parties.  I further understand and agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly and forever waived.  I acknowledge that Section 1542 provides that: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”  I acknowledge the releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
6. INDEMNITY.  I will defend, indemnify, hold harmless and reimburse the Released Parties from and for all damages, losses, costs, or expenses (including legal fees) incurred by the Released Parties or paid by them to any person (including me or my insurers) in respect of any accident, injury (including death), loss, or property damage, however caused resulting from, arising out of, or otherwise in connection with my participation in the Activity.  I will reimburse the Released Parties if anyone makes a claim against the Released Parties in connection with my participation in the Activity, including, without limitation, any accident I may be involved in or any injury, loss, damage to me, other parties or property however caused.
7. COVENANT NOT TO SUE.  I will not initiate any claim, lawsuit, other legal proceeding or demand against the Released Parties, nor join or assist in the prosecution of any claim for money, an injunction or other damages which anyone may have, on account of injuries (including death), losses, or damages sustained by me, other parties (such as riders in the vehicle) or my (or others’) property in connection with my participation in the Activity, and I waive any right I may have to do so.  This means that I cannot sue to hold the Released Parties responsible for any injury, loss, or damage sustained by me, other parties or my (or others’) property in connection with the Activity, even if it is due to the negligence, act, omission or other fault of the Released Parties.  I waive my insurers’ right to make a claim against the Released Parties based on payments by insurers to me or on my behalf for any reason.  This means my insurers have no rights of subrogation against the Released Parties.
8. REPRESENTATIONS.  I am over eighteen (18) years of age to be a passenger or twenty-one (21) years of age to be a driver, and I have a valid, unrestricted driver’s license and current insurance policy to operate a motor vehicle that provides collision and liability insurance meeting or exceeding the minimum coverage required by my state of residence that applies while I am driving the vehicle.  This insurance coverage shall be primary over any insurance held by the Released Parties.  I am in good health and I do not have any medical or other conditions that would impair my ability to drive or ride in a vehicle or participate in the Activity.  I understand that I have the option to elect to have a professional driver drive the vehicle in connection with the Activity.  I certify that I am not under the influence of any drug or substance, legal or illegal that would impair my ability to drive or ride in a vehicle or participate in the Activity.  If at any time I believe conditions to be unsafe or that I am no longer in proper physical condition to participate in the Activity, I will immediately discontinue further participation in the Activity.
9. GOVERNING LAW / LIMITATION OF LIABILITY.  All issues and questions concerning the construction, validity, interpretation and enforceability of this Release will be governed by and construed in accordance with the internal laws of the State of California, USA without giving effect to any choice of law or conflict of law, rules, or provisions that would cause the application of any other laws. 
TO THE EXTENT THAT APPLICABLE LAW PREVENTS SECTION 7 ABOVE FROM BEING ENFORCEABLE, I AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE ACTIVITY WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (B) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY) NOT TO EXCEED TEN DOLLARS ($10.00), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE; (C) UNDER NO CIRCUMSTANCES WILL I BE PERMITTED TO OBTAIN ANY AWARD FOR, AND I HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES NOT TO EXCEED TEN DOLLARS ($10.00), AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (D) I AGREE TO FINALLY SETTLE ALL DISPUTES WITH THE RELEASED PARTIES THROUGH BINDING ARBITRATION.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU. 
10. MISCELLANEOUS.  The invalidity or unenforceability of any provision of this Release will not affect the validity or enforceability of any other provision.  In the event that any provision of this Release is determined to be invalid or otherwise unenforceable or illegal, the other provisions will remain in effect and will be construed in accordance with their terms as if the invalid or illegal provision were not contained herein.  This Release is the entire agreement between the Released Parties (defined below) and me and supersedes any previous or contemporaneous discussions or agreements between us.  The Released Parties’ failure to enforce any term of this Release will not constitute a waiver of that provision.  Headings are solely for convenience of reference and will not be deemed to affect in any manner the meaning or intent of the documents or any provision hereof.  In the event there is a discrepancy or inconsistency between disclosures or other statements contained in any Activity-related materials, privacy policy or terms of use on the site and/or the terms and conditions of this Release, the Release shall prevail, govern and control.


I HAVE READ THIS RELEASE, FULLY UNDERSTAND ALL ITS TERMS, UNDERSTAND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, AND I AGREE TO THIS RELEASE FREELY AND VOLUNTARILY.  I REPRESENT AND WARRANT THE TRUTH OF THE ABOVE STATEMENTS AND I DECLARE THAT I HAVE NOT WITHHELD ANY INFORMATION THAT WOULD INFLUENCE THE RELEASED PARTIES’ DECISION IN ALLOWING ME TO PARTICIPATE IN THE ACTIVITY.
If signing this Release in person (as opposed to electronically agreeing to the Release via a website sign-up):

                                                                                                                                                                                                                                         
Name (Print)                                                                    Signature                                                                          Date

                                                                                                                                                                 
Driver’s License No./State                                              Home Phone

                                                                                                                                                                                                                                                                             
Address: (Street address, City, State, Zip)