COVID-19 SAFETY ACKNOWLEDGEMENT LIABILITY WAIVER AND RELEASE
COVID-19 SAFETY INFORMATION:
While participating in events held or sponsored by the South Florida Carnival Band Leaders Association, Inc., (“SFCBLA”), including events hosted by member bands and/or Miami-Broward One Carnival Host Committee, Inc., consistent with CDC guidelines, participants are encouraged to practice hand hygiene, “social distancing” and wear face coverings to reduce the risks of exposure to COVID-19. Because COVID-19 is extremely contagious and is spread mainly from person-to-person contact, SFCBLA has put in place preventative measures to reduce the spread of COVID-19. However, SFCBLA cannot guarantee that its participants, volunteers, partners, or others in attendance will not become infected with COVID-19.
In light of the ongoing spread of COVID-19, individuals who fall within any of the categories below should not engage in SFCBLA events and/or other face-to-face Miami Carnival 2021 activities. By attending an SFCBLA event, you certify that you do not fall into any of the following categories:
1. Individuals who currently or within the past fourteen (14) days have experienced any symptoms associated with COVID-19, which include fever, cough, and shortness of breath among others;
2. Individuals who have traveled at any point in the past fourteen (14) days either internationally or to a community in the U.S. that has experienced or is experiencing sustained community spread of COVID-19; or
3. Individuals who believe that they may have been exposed to a confirmed or suspected case of COVID19 or have been diagnosed with COVID-19 and are not yet cleared as non-contagious by state or local public health authorities or the health care team responsible for their treatment.
DUTY TO SELF-MONITOR:
Participants and volunteers agree to self-monitor for signs and symptoms of COVID-19 (symptoms typically include fever, cough, and shortness of breath) and, contact SFCBLA at email@example.com if he/she experiences symptoms of COVID-19 within 14 days after participating or volunteering with SFCBLA.
LIABILITY WAIVER AND RELEASE OF CLAIMS:
I acknowledge that I derive personal satisfaction and a benefit by virtue of my participation and/or voluntarism with SFCBLA, and I willingly engage in SFCBLA Miami Carnival 2021 events and/or other related activities (the “Activity”).
RELEASE AND WAIVER. I HEREBY RELEASE, WAIVE AND FOREVER DISCHARGE ANY AND ALL LIABILITY, CLAIMS, AND DEMANDS OF WHATEVER KIND OR NATURE AGAINST THE SOUTH FLORIDA CARNIVAL BAND LEADERS ASSOCIATION AND ITS AFFILIATED PARTNERS AND SPONSORS, INCLUDING IN EACH CASE, WITHOUT LIMITATION, THEIR DIRECTORS, OFFICERS, EMPLOYEES, VOLUNTEERS, AND AGENTS (THE “RELEASED PARTIES”), EITHER IN LAW OR IN EQUITY, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES CAUSED BY THE NEGLIGENCE, FAULT OR CONDUCT OF ANY KIND ON THE PART OF THE RELEASED PARTIES, INCLUDING BUT NOT LIMITED TO DEATH, BODILY INJURY, ILLNESS, ECONOMIC LOSS OR OUT OF POCKET EXPENSES, OR LOSS OR DAMAGE TO PROPERTY, WHICH I, MY HEIRS, ASSIGNEES, NEXT OF KIN AND/OR LEGALLY APPOINTED OR DESIGNATED REPRESENTATIVES, MAY HAVE OR WHICH MAY HEREINAFTER ACCRUE ON MY BEHALF, WHICH ARISE OR MAY HEREAFTER ARISE FROM MY PARTICIPATION WITH THE ACTIVITY.
ASSUMPTION OF THE RISK. I acknowledge and understand the following:
1. Participation includes possible exposure to and illness from infectious diseases including but not limited to COVID-19. While particular rules and personal discipline may reduce this risk, the risk of serious illness and death does exist;
2. I knowingly and freely assume all such risks related to illness and infectious diseases, such as COVID19, even if arising from the negligence or fault of the Released Parties; and
3. I hereby knowingly assume the risk of injury, harm and loss associated with the Activity, including any injury, harm and loss caused by the negligence, fault or conduct of any kind on the part of the Released Parties.
MEDICAL ACKNOWLEDGMENT AND RELEASE. I acknowledge the health risks associated with the Activity, including but not limited to transient dizziness, lightheaded, fainting, nausea, muscle cramping, musculoskeletal injury, joint pains, sprains and strains, heart attack, stroke, or sudden death. I agree that if I experience any of these or any other symptoms during the Activity, I will discontinue my participation immediately and seek appropriate medical attention. I DO HEREBY RELEASE AND FOREVER DISCHARGE THE RELEASED PARTIES FROM ANY CLAIM WHATSOEVER WHICH ARISES OR MAY HEREAFTER ARISE ON ACCOUNT OF ANY FIRST AID, TREATMENT, OR SERVICE RENDERED IN CONNECTION WITH MY PARTICIPATION IN THE ACTIVITY.
As a participant, volunteer, or attendee, You recognize that your participation, involvement and/or attendance at any SFCBLA Miami Carnival 2021 event or activity (“Activity”) is voluntary and may result in personal injury (including death) and/or property damage. By attending, observing or participating in the Activity, You acknowledge and assume all risks and dangers associated with your participation and/or attendance at the Activity, and You agree that: (a) the South Florida Carnival Band Leaders Association, Inc., including its member bands and/or Miami-Broward One Carnival Host Committee, Inc.(b) the property or site owner of the Activity, and (c) all past, present and future affiliates, successors, assigns, employees, volunteers, vendors, partners, directors, and officers, of such entities (subsections (a) through (c), collectively, the “Released Parties”), will not be responsible for any personal injury (including death), property damage, or other loss suffered as a result of your participation in, attendance at, and/or observation of the Activity, regardless if any such injuries or losses are caused by the negligence of any of the Released Parties (collectively, the “Released Claims”). BY ATTENDING AND/OR PARTICIPATING IN THE ACTIVITY, YOU ARE DEEMED TO HAVE GIVEN A FULL RELEASE OF LIABILITY TO THE RELEASED PARTIES TO THE FULLEST EXTENT PERMITTED BY LAW.
By purchasing or attempting to purchase any product(s) and/or service(s) offered or advertised by Break Awe Krue powered by Xia International or Xia Carnival Band (together known as the “Company”), and in consideration of being allowed to participate in the Miami Broward Carnival Parade (the “Event”) you (the “Customer” or “You”) are stating that you fully and unconditionally agree to all policies, disclaimers, terms, conditions, and guarantees detailed herein.
Refund/Return Policy Please note that carnival costumes are custom-made items therefore once a down-payment is made, it is non-refundable. Additionally, there will be: NO exchange or switching of sections. NO changing of measurements or sizes NO Costume Transfers NO Returns Accepted
With respect to any claim that any of the services were deficient, you must notify the Company by email addressed to firstname.lastname@example.org immediately following the Company’s nonperformance of services offered. If you fail to give the Company written notice of such deficiency immediately, the Company will not be required to remedy such deficiency. Provided that you give the Company notice in accordance with this paragraph, the Company agrees to use commercially reasonable efforts to remedy such deficiency and, in connection therewith, you agree to provide proof of such deficiency to enable such efforts. If no proof of such deficiency is provided to the Company, the Customer will not be liable for a refund. If the Company, using commercially reasonable efforts, is unable to remedy any deficiency in Services provided, then the Company, in its sole discretion, may elect to issue you a refund for the deficiencies on Services provided, as specified in Limitation of Liability. Notwithstanding the foregoing, the Company’s liability to you shall be limited as specified in this Agreement. Limitation of Liability
Partial refunds may be awarded to the Customer at the Company’s sole discretion, including but not limited to when the foregoing conditions have been met, partial services have been provided prior to a written request being received, or if the Company is unable to complete all of the Services purchased.
Chargebacks and Attorneys’ Fees
Dishonest claims for chargebacks are deemed fraudulent, which results from a customer making a purchase with his or her own credit card, receiving the merchandise/service, and then filing for a chargeback. This involves dishonest people who would like to benefit from our Services without actually paying for them. If you request a refund on services rendered, for any amount paid by You via credit card which (i) the credit card issuer (the ‘issuer’) later rejects or refuses to pay, or (ii) the Company is later required to reimburse the issuer (each, a ‘chargeback’), then in each case, the Company reserves the right to charge and You agree to pay, in addition to the amount not paid, rejected or refused, a fee of 10% of such amount, or the highest rate allowed under applicable law, whichever is lower and to pay interest on the overdue amount at the rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, until paid in full. In addition, You agree to pay all collection costs, including reasonable attorney’s fees, incurred by the Company in collecting any amounts that You owe to the Company, whether incurred before or after civil litigation is commenced.
Costume Collection Policy
Costume packages must be collected in person with a valid form of ID. Persons may collect the costume in their name only. The costume distribution schedule will be advertised via electronic or print media. The final date of costume distribution is Carnival Saturday after the J’ouvert celebration after which all uncollected costumes remain the property of XIA INTERNATIONAL and any down-payments are forfeited. In order to collect a costume on behalf of another masquerader, the person collecting the costume must present a signed letter authorizing them to collect the costume on the owner\'s behalf, accompanied by a copy of the costume owner\'s ID. The signature on the letter and ID must match.
Agreement for Assumption of Risk, Indemnification, and Release, for Band Participants
In consideration of the Band’s consent to allow me to participate in any or all recreational or other activities related to South Florida Carnival Band Leaders Association, Inc. (including without limitation, Miami Carnival Showcase, Modeling Events, festivities), I hereby knowingly, freely and voluntarily agree to waive, release and discharge any and all claims for damages for death, personal injury, or property damage that may have, or that may subsequently accrue to me as a result of my participation in recreational or other activities offered, afforded, or sponsored by the Band.
Assumption of Risk: I understand that the South Florida Carnival Band Leaders Association, Inc., by its very nature, includes certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries. The specific risks vary, and may range from: 1) minor injuries such as scratches, bruises, sprains, and the like, to 2) major injuries such as loss of hearing, eye injuries, loss of vision, loss of limb, joint or back injury, heart attack, and concussions, to 3) catastrophic injuries including death. I understand and appreciate that these and other risks are inherent in the above-listed events and activities. I hereby assert that my participation is voluntary and that I knowingly assume all such risks. I further understand that I am ultimately responsible for my own safety.
Hold Harmless and Indemnification: I agree, for myself, my heirs, personal representatives or assigns, to defend, hold harmless, and indemnify, the South Florida Carnival Band Leaders Association, the Band, its officers, directors, employees, agents, volunteers, and affiliates, from and against any and all claims, demands, actions, suits, procedures, causes of action, damages, costs (including reasonable attorneys fees) and expenses that may result from or is in any way related to my participation in the South Florida Carnival Band Leaders Association, Inc. This indemnity includes claims based on the negligence (whether sole, active, passive, or gross) of the Band, its officers, employees, agents, affiliates, and volunteers, but expressly does not include claims based on their intentional misconduct.
Release and Waiver: I hereby release, waive, and covenant, not to sue the South Florida Carnival Band Leaders Association, the Band, its officers, directors, employees, agents, volunteers, and affiliates, from and for any and all claims and/or liability resulting from any personal injury, accident or illness (including death), and/or property damage or loss, however caused by, arising from, or in any way related to, my participation in the Miami Carnival Showcase. This release includes claims based on the negligence (whether sole, active, passive, or gross) of the SFCBLA, the Band, its officers, employees, agents, affiliates, and volunteers. I understand that by agreeing to this clause I am releasing claims and giving up substantial rights, including my right to sue.
Conduct: I agree to follow all instructions, procedures, measures and directions given to me by the Band or any of its staff or representatives and understand that my failure to do so may result in property damage or injury or death to me or to a third party. I understand that my invitation to participate in recreational or other activities on the Properties may be revoked at any time for any reason by the Band or any of its agents, managers, employees or representatives.
Permission to Use Likeness/Name: The undersigned further agree to allow, without compensation, Participant’s likeness and/or name to appear, and to otherwise be used, in material, regardless of media form, promoting the South Florida Carnival Band Leaders Association, the Miami Carnival Showcase or the Band, and/or its, events and activities, including those of its representatives, assigns, and licensees.
Severability: I understand that the foregoing waiver and assumption of risks agreement is intended to be as broad and inclusive as is permitted by the law of the State of Florida and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect and be binding on myself, my spouse, my heirs and personal representatives.
I UNDERSTAND THAT THIS WAIVER, RELEASE AND INDEMINTY IS INTENDED TO WAIVE, RELEASE, DISCHARGE AND INDEMINIFY IN ADVANCE THE BAND AND ITS AFFLIATES, SUBSIDIARIES, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, INSURERS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FOR, FROM AND AGAINST ANY AND ALL LIABILITY TO ME ARISING FROM MY PARTICIPATION IN ANY AND ALL RECREATIONAL OR OTHER ACTIVITIES DURING OR ASSOCIATED WITH SOUTH FLORIDA CARNIVAL BAND LEADERS ASSOCIATION, INC, INCLUDING ANY DEMAND, RIGHT OR CAUSE OF ACTION OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON TORT (INCLUDING NEGLIGENCE ON THE PART OF THE BAND), CONTRACT, WARRANTY, OR ANY OTHER THEORY OF RECOVERY, AT LAW OR INEQUITY, VESTED OR CONTINGENT, THAT I OR MY SPOUSE, FAMILY, PARENTS, CHILDREN, ESTATE, HEIRS, AGENTS, INSURERS, SUCCESSORS OR ASSIGNS MAY AT ANY TIME HAVE AS A RESULT OF MY PARTICIPATION IN RECREATIONAL OR OTHER ACTIVITIES DURING OR ASSOCIATED WITH SOUTH FLORIDA CARNIVAL BAND LEADERS ASSOCIATION, INC. THIS ALSO INCLUDES, WITHOUT LIMITATION, ANY LIABILITY (INCLUDING CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES) ARISING FROM INJURY OR DAMAGE THAT I SUFFER OR CAUSE DURING MY PARTICIPATION IN RECREATIONAL OR OTHER ACTIVITES DURING OR ASSOCIATED WITH SOUTH FLORIDA CARNIVAL BAND LEADERS ASSOCIATION, INC, WHETHER SUCH INJURY OR DAMAGE IS FORESEEN OR UNFORESEEN OR WHETHER RESULTING FROM NEGLIGENCE OR OTHERWISE.
SFCBLA PROPOSED ADR PROVISIONS
GOOD FAITH NEGOTIATION. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation. Any party may give the other party notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity a statement of each party’s position and a summary of arguments supporting that position. Within 30 days after delivery of the notice, the parties shall meet at a mutually agreeable time and place (such meeting space may be a virtual conference room).
Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the claim notice and First Meeting requirements of good faith negotiation.
All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the above good faith negotiation procedures are pending and for 15 calendar days, thereafter. The parties will take such action, if any, required to effectuate such tolling.
MEDIATION OF SELECT CLAIMS IN ADVANCE OF ARBITRATION BY SOUTH FLORIDA CARNIVAL BANDLEADERS ASSOCIATION COMPLIANCE AND DISPUTE RESOLUTION COMMITTEE. If a matter is not resolved by negotiation pursuant to paragraphs __ above, and such matter involves claims recognized by the South Florida Carnival Bandleaders Association Compliance and Dispute Resolution Committee (the “Association” or “SFCBLA”), then the matter will proceed to mediation as set forth below.
Either party may commence mediation by providing to the Association and the other party a written request for mediation in the form made available by the Association, setting forth the subject of the dispute and relief requested.
The parties will cooperate with the Association and with one another in selecting a mediator from the Association panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any Association employees or volunteers, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
Either party may initiate arbitration with respect to matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire.
At no time prior to the Earliest Initial Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provision remedy that is authorized by law or by JAMS Rules or by agreement to the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the mediation scheduling and good faith participation requirements above.
All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
ARBITRATION AGREEMENT. SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS.IN ARBITRATION, NEITHER PATRON NOR BAND WILL HAVE THE RIGHT TO: (i) HAVE A COURTOR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PREARBITRATION DISCOVERY(THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENTTHAT PATRON OR BAND COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE ORMEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION,RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHERTHAN PATRONS OWN OR BANDS OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BEAVAILABLE IN ARBITRATION.
Broad Meaning of Claims. The term “Claim” in this Agreement is to be given the broadest possible meaning and includes (by way of example and without limitation) Claims arising from orrelating to (i) this Agreement based upon contract, tort, fraud, statute, regulation, common law and equity, (ii) anytransactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement,(iv) collection of any obligation arising from this Agreement, (v) advertisements, promotions or oral or writtenstatements relating to or arising out of any participation or attendance at events associated with Miami Carnival or this Agreement or any
transactions between Patron and Band pursuant to this Agreement, including any Claims regarding
services and/or products offered or provided by Band, (vi) Claims between Patron and Band or the parties respective parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers,directors or representatives arising from any transaction between Band and Patron pursuant to thisAgreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration section or thisAgreement including, but not limited to, whether a given claim or dispute is subject to arbitration. Arbitration. AllClaims will be resolved through arbitration pursuant to this section rather than by litigation, except for Claims mediated and resolved with the Association as described above. Claims will be decided by a neutral arbitrator.
Any dispute, Claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement, shall be determined by arbitration in Miami-Dade County, Florida (or as made possible by electronic or virtual conferencing proceedings) before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
The arbitrator in any proceeding conducted pursuant to this Agreement must be:
1. A retired judge from civil circuit court in the State of Florida; or
2. A lawyer with at least 10 years of active practice in civil litigation; and
3. Familiar with Caribbean carnival events.
The parties agree that, wherever practicable, they will seek to appoint a fair representation of diverse arbitrators (considering gender, ethnicity and sexual orientation), and will specifically request administering institutions to include a fair representation of diverse candidates, including those with cultural competencies relevant to the Caribbean community, on their rosters and list of potential arbitrator appointees.
JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT,ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATEDTO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR THE ENFORCEMENT HEREOF,EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVERKNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVECONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY CLAIMSAGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AS AGAINSTPUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR A COURT OF LAW TOPROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBYAGREE THAT: (1) THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER ATTORNEYS FEESOR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT) AND (2) THE PARTY WHO INITIATES ORPARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.