ASSUMPTION OF RISK, INDEMNITY AND RELEASE
A. Customer’s Acknowledgments.
Customer understands and acknowledges that products purchased from Burnsville Offroad, Inc.™ (“Burnsville”) are designed to protect against certain types of property damage from minor impacts, but are not designed as a crash safety device, or as an impact resistant product designed for the protection of occupants, but instead are cosmetic enhancements to assist in protecting against minor impact damage with certain stationary obstacles. As a result, Customer also understands and acknowledges that the installation of Burnsville products on a Vehicle and the voluntary use of that Vehicle for off-road activities (each, hereinafter, and “an Off-Road Activity”) is inherently dangerous and hazardous and can result in damage to the Vehicle, to others, to the property of others and in the serious bodily injury or death to Customer or others.
B. Use in an Off-Road Activity.
By accepting a Burnsville product and using such product in any Off-Road Activity, Customer accepts and agrees to all of the terms described below (the “Release”); provided that Customer may in lieu of accepting the terms of this Release and prior to installation, elect to return any Burnsville product and receive a full refund. Such return may be initiated by contacting a Burnsville sales representative or by directly contacting Burnsville at (303) 974-2444 or at www.burnsvilleoffroad.com for the issuance of a call tag for the product in question. Once the product being returned has been received by Burnsville in good condition, a full refund will be issued.
C. Customer Agreements.
1. Assumption of Risk and Release. Customer assumes all risk and responsibility of engaging in an Off-Road Activity which is acknowledged as being inherently dangerous. Customer understands that persons participating in an Off-Road Activity must possess specialized knowledge and skills, and in voluntarily deciding to do so, Customer assumes all risks inherent therein which may be encountered at any time in connection with an Off-Road Activity. With full knowledge of the above and all risks inherent therein, Customer and others who may voluntarily choose to engage in an Off-Road Activity accepts full responsibility for and assumes all risks associated with engaging in an Off-Road Activity, whether known, unknown, or inherent, and acknowledge and agree that such persons are assuming all responsibility for any and all consequences resulting from the participation in an Off-Road Activity, including, but not limited to, injury and/or death to Customer or others and damage to the Vehicle and other property. Customer and each other participant in any Off-Road Activity hereby release, and forever discharge and shall hold harmless each other and Burnsville, including all of their respective predecessors, affiliates, successors, assigns, partners, venturers, principals, officers, directors, managers, shareholders, attorneys and agents and their respective insurance carriers (the “Released Parties”) and hereby release and forever discharge, indemnify and hold harmless the Released Parties, and any and all persons claiming under them, however involved, of and from any and all liability for any and all claims, demands, damages and costs, liabilities, losses, expenses, obligations, compensations, reimbursements, actions, rights, loss of profits, and rights and causes of action, of every kind and nature whatsoever, including court costs and attorney fees, whether known or unknown, which Customer and any other participant may now have, or claim at any future time to have, arising from or growing out of, or by reason of, or based in whole or in part upon, any act, omission, event, transaction, matter or thing involved, alleged or referred to, whether direct or indirect, involving an Off-Road Activity.
2. Release of Unknown Claims. Customer and any other participant fully realize that in participating in an Off-Road Activity they may sustain unknown and unforeseen losses, costs, expenses, damages, liabilities, and claims, and the consequences thereof, which may be at this time, and hereafter unknown, unrecognized and not contemplated by them. By participating in an Off-Road Activity, Customer and any other participant intend to release the Released Parties from any and all liability for any and all such unknown and unforeseen losses, expenses, damages, costs, liabilities, and the consequences thereof, not known, recognized nor contemplated at any time by them, which result or may result from an Off-Road Activity. Customer and any other participant expressly and forever waive any right to assert that this Release was the result of a mistake of any kind, waiving all claims based upon the doctrine of mistake.
3. Covenant Not to Sue. Customer and any other participant specifically covenant and agree, each with the other, never to institute or participate in any suit or action, including class actions, at law or in equity, whether sounding in tort or contract, against the Released Parties and all persons claiming under them or any of them by reason of any claim, demand, action, or cause of action described in this Release.
4. Miscellaneous Provisions.
A. This Release shall be binding in all respects upon, and shall inure to the benefit of the Released Parties and their heirs, successors and assigns.
B. This Release shall be governed by the laws of the State of Colorado, and the sole and exclusive jurisdiction for the determination of any controversy or claim arising out of the purchase of any Burnsville product shall be in the District Court of Arapahoe County, Colorado.
C. In the event that a court of competent jurisdiction enters judgment declaring any material provision of this Release invalid or unenforceable, the remainder of this Release shall remain in full force and effect and such provision shall be limited or eliminated to the minimum extent necessary so that such invalid or unenforceable provision shall otherwise remain in force or effect.
D. Neither Customer nor any other participant shall be entitled to any favorable construction of any provision of this Release because the Release was drafted by Burnsville or by an attorney for Burnsville.
E. The acceptance of a Burnsville product constitutes Customer’s voluntary acceptance of this Release, Customer’s acknowledgement that no oral statements or inducements have been made and that full and adequate consideration has been received for this Release.