INDEMNITY, RELEASE, AND WAIVER
THIS INDEMNITY, RELEASE, AND WAIVER (this “Release”) is given to SMHG Management LLC, a Delaware limited liability company doing business as Powder Mountain Resort (“Powder Mountain”), by the person purchasing skiing and/or snowboarding lessons from Powder Mountain with his or her lift ticket (the “Participant”).
1. Background. Powder Mountain operates a ski resort in Weber and Cache Counties, Utah, known as Powder Mountain Resort (the “Resort”). As part of its operations, Powder Mountain offers skiing and snowboarding lessons, but before the Participant may receive those lessons or otherwise ski or snowboard at the Resort, Powder Mountain requires the Participant to provide this Release on behalf of the Participant and the Participant’s spouse, children, family, friends, and any other guests (together, the “Guests”).
2. Indemnity and Release. To the greatest extent allowed by applicable law, the Participant agrees to indemnify and hold harmless Powder Mountain, its parent, subsidiary, and sister companies, including but in no way limited to Summit Eden Resort LLC and Summit Mountain Holding Group, L.L.C., and all of their respective principals, employees, agents, and contractors (each a “Powder Mountain Party”) from and against all claims, demands, or causes of action which arise from or relate to the Participant’s visits to the Resort for lessons, general skiing or snowboarding, or otherwise, and which are made or asserted by the Participant or the Participant’s Guests. The Participant releases and waives these claims, demands, and causes of action, both on behalf of the Participant and the Participant’s Guests, and represents and warrants the Participant has the authority to provide this release and waiver on behalf of the Participant’s Guests. The Participant agrees to maintain adequate insurance to cover these claims, demands, and causes of action, and represents and warrants that the Participant has obtained and will maintain this insurance. Powder Mountain would not allow the Participant or the Participant’s Guests to visit the Resort, accompany the Participant for lessons, or participate in any activities at the Resort without this Release.
3. Assumption of Risk. The Participant understands that visits to the Resort, including for lessons the Participant and any Guests take, entail certain risks, including but in no way limited to the risks of natural disaster, acts of God, vehicle-related injury or death, encounters with and attacks by wildlife, active construction sites, uneven and steep terrain, and even the possibility of serious injury or even death for the Participant and/or the Participant’s Guests. The Participant understands that skiing, snowboarding, other snow-sliding activities, and lessons at the Resort also entail certain risks, including but in no way limited to the inherent risks of skiing set forth in Section 78B-4-402(1) of the Utah Code, as well as risks that are unique to the inexperience of the person taking lessons, including but in no way limited to unfamiliarity with terrain, variable snow conditions, unpredictable falls, miscommunications with lesson instructors, inability to control speed, difficulty loading or unloading from lifts, unnoticed accidents in groups, the presence of and risk of collision with other skiers and snowboarders at the Resort, improperly using ski or snowboard equipment, fatigue, exposure to weather, unfamiliarity with environmental hazards of skiing like rocks, tree walls, or drop-offs, overexertion, issues with visibility, a lack of understanding of safety protocols, susceptibility to peer pressure, failure to adequately prepare, and the possibility of serious injury or even death. The Participant represents and warrants that the Participant and the Participant’s Guests understand that they are responsible for safely using the property and equipment at the Resort, including but in no way limited to having the physical dexterity to safely load, ride, and unload the lifts and access and use the mountain terrain, controlling their speed and course at all times, and maintaining a proper lookout. The Participant represents and warrants that both the Participant and the Participant’s Guests understand that snowmobiles, snowcats, snowmaking equipment, other heavy equipment, and manmade features which include but are in no way limited to terrain park features and art installations, may be encountered within the Resort at any time. The Participant represents and warrants that the Participant has explained these risks to the Participant’s Guests, and on behalf of the Participant and the Participant’s Guests, voluntarily assumes these risks for any and all lessons the Participant or the Participant’s Guests receive at the Resort, as well as for any and all skiing, snowboarding, or other snow-sliding activities in which the Participant or the Participant’s Guests participate at the Resort.
4. Other Matters. The Participant agrees to, and agrees to make sure the Participant’s Guests, obey: (i) lawful instructions of Powder Mountain and its designees, (ii) all posted signs and instructions, and (iii) the NSAA Skier Responsibility Code. The Participant, on behalf of the Participant and the Participant’s Guests, consents to receive medical treatment if the Participant or any of the Participant’s Guests are injured on the property of Powder Mountain or any Powder Mountain Party and, in the reasonable judgment of Powder Mountain or its designee, need medical treatment. The Participant is solely responsible for these medical costs and may work out separate arrangements with the Participant’s Guests, but agrees to indemnify and hold Powder Mountain harmless from and against any claim, demand, or cause of action relating to these costs.
5. General Provisions. This Release binds and benefits the parties and their respective permitted successors and heirs, as well as the Participant’s Guests. There are no other intended beneficiaries. The laws of the State of Utah (without giving effect to its conflicts of law principles) govern all matters arising under and relating to this Release, including torts, and the parties agree to litigate all disputes, of whatever nature, arising from or relating to this Release in the courts located within Salt Lake County, Utah, and the Participant expressly consents, on behalf of the Participant and the Participant’s Guests, to the jurisdiction of those courts. The Participant represents and warrants that the Participant has the authority to bind the Guests to the terms of this Release. Notwithstanding anything else in this Release to the contrary: (i) this Release does not apply to willful acts or gross negligence of any Powder Mountain Party, or to the Participant’s minor children; and (ii) if the Participant is a minor, the claims, demands, and causes of action released hereunder are limited to those permitted to be released under Section 78B-4-405 of the Utah Code.
6. Waiver of Jury Trial. The Participant knowingly, voluntarily, and intentionally waives his, her, or its right to a trial by jury in any legal proceeding arising under or relating to this Release and the matters contained in this Release. This waiver applies to any legal proceeding, whether sounding in contract, tort, or otherwise. The Participant acknowledges the Participant has received or had the opportunity to receive the advise of competent counsel.