BIKE STREETS RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK & INDEMNITY AGREEMENT (“Release and Waiver”)
**PLEASE READ THE FOLLOWING RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK & INDEMNITY AGREEMENT CAREFULLY, AS IT AFFECTS YOUR FUTURE LEGAL RIGHTS. BY REGISTERING WITH AND/OR USING BIKE STREETS, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE CAREFULLY READ THIS RELEASE AND WAIVER AND AGREE TO THE TERMS SET FORTH BELOW.
Though you still need to read the entire document, some of the key points of this Release and Waiver are highlighted here:
- THE ACTIVITY IS HAZARDOUS AND MAY CAUSE PHYSICAL INJURY, DEATH OR PROPERTY DAMAGE. Participating in the Activity may be physically challenging and may pose a risk of discomfort, illness, injury, and even death. You need to be satisfied that you are skilled in how to ride a bicycle on city streets in traffic and that you are physically capable of participating in the Activity without undue risk to your health or your life. We do not conduct health or fitness checks on participants.
- YOU EXPRESSLY ASSUME ALL RISKS ASSOCIATED WITH THE ACTIVITY. The Activity involves inherent risks and dangers to participants and you participate at your own risk. You assume full and complete risk and responsibility for any discomfort, illness, injury, death, or accident which may result from your participation in the Activity. You’re responsible at all times for your conduct and its consequences.
- BIKE STREETS CANNOT GUARANTEE THE SAFETY OF ANY OF ITS ROUTES. Bike Streets suggests routes that it believes will provide an enjoyable riding experience, however all routes are subject to the inherent dangers of the Activity. Routes may change or become less safe or enjoyable (or unsafe/unusable) at any time due to traffic, events, construction, potholes or road surface degradation, changes in traffic patterns, weather, sun/glare, and any number of other factors. Changes in conditions and suitability may occur at any time and may not be reflected in any maps you may use. As such, you agree to use your own judgment as to the best routes to take, not to participate in the Activity if it appears unsafe, and to release Bike Streets and the Released Parties from any and all liability associated with the Activity, as further set forth below.
- IN CONSIDERATION FOR BEING ALLOWED TO PARTICIPATE IN THE ACTIVITY, YOU AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE BIKE STREETS OR THE RELEASED PARTIES.
- YOU AGREE TO INDEMNIFY THE RELEASED PARTIES FOR ALL LIABILITY AND CLAIMS, INCLUDING ATTORNEYS’ FEES, ARISING FROM ANY MISREPRESENTATIONS IN OR FRAUDULENT EXECUTION OF THIS AGREEMENT.
- USE OF A HELMET IS STRONGLY RECOMMENDED. You understand that A HELMET IS IN NO WAY A GUARANTEE OF SAFETY and that no helmet can protect the wearer against all foreseeable impacts to the head, and that biking and other related activities can expose the user to forces that exceed the limits of protection provided by a helmet.
In consideration of being permitted to register and/or participate in and/or observe the Activity, on behalf of yourself and any personal representatives, assigns, heirs, executors, successors, next of kin, and persons supported by you (if relevant under the applicable laws), you understand that:
1. Authority to Register and/or to Act as Agent. You represent and warrant to Bike Streets, LLC (“Bike Streets”) that you have full legal authority and capacity to enter into this Release and Waiver and to participate in and complete the registration for the Activity, on behalf of yourself and/or, where applicable, any party for whom you are registering (the “Registered Parties”), including full authority to make use of the credit or debit card to which any registration fees will be charged.
As used in this Release and Waiver, (a) “Bike Streets” means and includes Bike Streets, LLC, its owners, officers, partners, sponsors, licensors, and any and all subsidiaries, or affiliated entities and each of their officers, employees, contractors, volunteers, subcontractors, insurers. Bike Streets is also referred to herein as the “Released Parties”; and (b) “you” or “your” means and includes you (as an individual) and all other Registered Parties for whom you are registering, your spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on your behalf. You are also referred to herein as the “Releasing Parties”.
If you are registering a child under the age of 18 or an incapacitated adult, you represent and warrant that you are the parent or legal guardian of that party and have the legal authority and capacity to enter into this Release and Waiver on his/her behalf and by proceeding with registration for the Activity, you agree that the terms of this Release and Waiver shall apply equally to all of the Registered Parties. To the extent permitted by law, each person agreeing to this Release and Waiver for him/herself and/or on behalf of another Registered Party (including, without limitation, any minor) agrees to indemnify, defend, and hold Bike Streets harmless from any liability, claim, demand, cause of action, damage, loss, or expense (including court costs and reasonable attorneys’ fees) of any kind or nature (each, a “Liability” and collectively “Liabilities”) in the event the Liability arises because a Registered Party is found by a court of competent jurisdiction to not be bound by the terms and conditions of this this Release and Waiver. In addition, if, despite this Release and Waiver, any of the Registered Parties makes a claim against Bike Streets, you agree, immediately upon request or demand by Bike Streets, to defend, indemnify, and hold Bike Streets harmless from all Liabilities which may be incurred as the result of such claim.
2. ASSUMPTION OF RISK. IN CONSIDERATION OF THE ACCEPTANCE OF YOUR REGISTRATION AND PARTICIPATION IN THE ACTIVITY, YOU ASSUME FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY DISCOMFORT, ILLNESS, INJURY, DEATH, OR ACCIDENT WHICH MAY OCCUR WHILE YOU ARE PREPARING FOR THE ACTIVITY, DURING THE ACTIVITY, OR WHILE YOU ARE TRAVELING TO OR FROM THE ACTIVITY.
THE ACTIVITY IS MEANT TO BE A PHYSICAL ACTIVITY THAT INVOLVES RIDING A BICYCLE ON UNSUPERVISED, OPEN PUBLIC STREETS WITH LIMITED OR NO ACTIVITY-SPECIFIC SIGNAGE, IN AND AMONG AUTOMOBILE TRAFFIC, PARKED VEHICLES, VEHICLES WITH OPEN OR OPENING DOORS, OTHER BICYCLISTS, PEDESTRIANS, PETS, ANIMALS, AND ANYONE ELSE AND ANYTHING ELSE THAT MAKE USE OF PUBLIC STREETS.
BIKE STREETS MAPS ARE IMPERFECT, MAY BE INCOMPLETE, AND WILL CONTAIN ERRORS. BIKE STREETS MAPS CANNOT AND WILL NOT ACCOUNT FOR ALL POSSIBLE SCENARIOS, OBSTACLES, AND OTHER THINGS YOU MAY ENCOUNTER WHILE USING THEM. BIKE STREETS HAS NO ABILITY TO CONTROL, ALTER, MONITOR, OR CHANGE THE STREETS AND PATHS MAKING UP THE ROUTES. ROUTES DESIGNATED BY BIKE STREETS MAY NOT BE MARKED FOR BICYCLE TRAFFIC. ROUTES DESIGNATED BY BIKE STREETS MAY CHANGE, MAY BE DAMAGED, MAY BE SUBJECT TO CLOSURE FOR CONSTRUCTION OR EVENTS, MAY BE SUBJECT TO INCREASED TRAFFIC AT TIMES, AND MAY OTHERWISE BECOME UNSAFE OR UNDESIRABLE FOR BICYCLE TRAFFIC.
YOU UNDERSTAND THAT PARTICIPATING IN THE ACTIVITY MAY BE HAZARDOUS, AND THAT YOU SHOULD NOT ENTER AND PARTICIPATE UNLESS YOU ARE MEDICALLY ABLE AND PROPERLY TRAINED. YOU SHOULD CONSULT YOUR DOCTOR BEFORE PARTICIPATING IN THE ACTIVITY. IT IS YOUR RESPONSIBILITY TO CHECK AND TO ENSURE THAT YOU ARE AT ALL TIMES MEDICALLY AND PHYSICALLY FIT TO PARTICIPATE IN THE ACTIVITIES RELATED TO THE ACTIVITY. YOU ARE AWARE OF AND ASSUME ALL RISKS ASSOCIATED WITH PARTICIPATING IN THE ACTIVITY.
YOU ACKNOWLEDGE AND AGREE THAT THE ACTIVITY WILL BE HELD ON PUBLIC ROADS AND FACILITIES OPEN TO THE PUBLIC AND UPON WHICH HAZARDS, INCLUDING THOSE INVOLVING MOVING AND STATIONARY VEHICLES, ARE TO BE EXPECTED. YOU ALSO ACKNOWLEDGE AND AGREE THAT PARTICIPATION IN THE ACTIVITY CARRIES WITH IT CERTAIN INHERENT RISKS AND DANGERS THAT CANNOT BE ELIMINATED COMPLETELY RANGING FROM RISK OF MINOR DISCOMFORT TO CATASTROPHIC INJURIES INCLUDING PERMANENT DISABILITY AND DEATH.
YOU UNDERSTAND AND ACKNOWLEDGE THAT THE INHERENT RISKS INCLUDE, BUT ARE NOT LIMITED TO: 1) CONTACT OR COLLISION WITH PERSONS OR OBJECTS (E.G., COLLISION WITH PEDESTRIANS OR SPECTATORS, CONTACT WITH OTHER PARTICIPANTS, BIKE STREETS PERSONNEL, OR NON-PARTICIPANTS, CONTACT OR COLLISION WITH MOTOR VEHICLES OR MACHINERY, AND CONTACT WITH NATURAL OR MAN-MADE FIXED OBJECTS OR OBSTACLES); 2) ENCOUNTERS WITH OBSTACLES (E.G., WATER, ROAD AND SURFACE HAZARDS, DEBRIS); 3) EQUIPMENT RELATED HAZARDS (E.G., BROKEN, DEFECTIVE OR INADEQUATE EQUIPMENT, UNEXPECTED EQUIPMENT FAILURE, IMPERFECT STREET OR ROUTE CONDITIONS); 4) WEATHER-RELATED HAZARDS (E.G., EXTREME HEAT, EXTREME COLD, HUMIDITY, ICE, RAIN, SNOW, FOG); 5) INADEQUATE OR NEGLIGENT FIRST AID AND/OR EMERGENCY MEASURES; 6) JUDGMENT-AND/OR BEHAVIOR-RELATED PROBLEMS (E.G., ERRATIC OR INAPPROPRIATE AUTOMOBILE OR MACHINERY DRIVER, PEDESTRIAN, CO-PARTICIPANT, NON-PARTICIPANT, OR SPECTATOR BEHAVIOR, ERRATIC OR INAPPROPRIATE BEHAVIOR BY THE PARTICIPANT, ERRORS IN JUDGMENT BY PERSONNEL ORGANIZING OR WORKING AT THE ACTIVITY); AND 7) NATURAL HAZARDS.
YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT ANY OF THESE RISKS AND OTHERS, NOT SPECIFICALLY NAMED, MAY CAUSE INJURY OR INJURIES THAT MAY BE CATEGORIZED AS MINOR, SERIOUS, OR CATASTROPHIC. MINOR INJURIES ARE COMMON AND INCLUDE, BUT ARE NOT LIMITED TO: SCRAPES, BRUISES, MUSCLE TENSION AND SORENESS, CUTS, AND SUNBURN. SERIOUS INJURIES ARE LESS COMMON, BUT CAN OCCUR. THEY INCLUDE BUT ARE NOT LIMITED TO PROPERTY LOSS OR DAMAGE, BROKEN BONES, AND CONCUSSIONS. CATASTROPHIC INJURIES ARE RARE; HOWEVER, OUR PARTICIPANTS SHOULD BE AWARE THAT THEY COULD OCCUR. THESE INJURIES CAN INCLUDE, BUT ARE NOT LIMITED TO, PERMANENT DISABILITIES, SPINAL INJURIES, HEART ATTACK, HEART FAILURE, AND EVEN DEATH.
IF YOU BELIEVE, OR BECOME AWARE THAT ANY ASPECT OF THE BIKE STREETS ACTIVITY IS UNSAFE OR POSES UNREASONABLE RISKS, YOU AGREE TO IMMEDIATELY NOTIFY BIKE STREETS VIA HELP@BIKESTREETS.ZENDESK.COM. BY PARTICIPATING IN THE ACTIVITY, YOU ARE ACKNOWLEDGING THAT YOU HAVE FOUND THE DESIGNATED BIKE ROUTES, COURSE, FACILITIES, EQUIPMENT, AND AREAS TO BE USED TO BE ACCEPTABLE FOR YOUR PARTICIPATION. YOU ACCEPT FULL AND SOLE RESPONSIBILITY FOR THE CONDITION AND ADEQUACY OF YOUR (AND/OR YOUR MINOR CHILD/WARD’S) EQUIPMENT. YOU ALSO ACCEPT FULL RESPONSIBILITY FOR YOUR (AND/OR YOUR MINOR CHILD/WARD’S) ACTIONS AND OMISSIONS.
If your child is participating, you also acknowledge that: (i) you have spoken to your child about the Activity; (ii) your child understands and appreciates the risks of participating in the Activity; and (iii) your child is voluntarily participating in the Activity. You further acknowledge and understand that children will likely be less capable riders than adults, may be less physically and mentally capable of riding a bicycle safely, may be less aware of their surroundings, may be less capable of making good/safe decisions and/or maintaining safe speeds, may be less comfortable with their equipment, and in general may be more prone to accident or injury as a result. You further acknowledge that in permitting your child to participate in the Activity you recognize and accept these increased risks, and agree to release Bike Streets and the Released Parties as set forth herein on your own behalf and on behalf of any children.
3. Representations. You represent and warrant that you are in good physical condition, are able to safely participate in the Activity, are mentally and physically capable of riding a bicycle in traffic on open, unsupervised public roads, and have no medical condition that would make your participation in the Activity more hazardous. You consent to medical care and transportation in order to obtain treatment in the event of injury to you and understand that this Release and Waiver extends to any liability arising out of or in any way connected with the medical treatment and transportation provided in the event of an emergency and/or injury. You understand that no medical care may be available nor is Bike Streets in any way responsible for providing medical care to you, but if it is, you assume liability for any and all medical expenses incurred as a result of your participation in the Activity (where such medical expenses are not provided on a free of charge basis by any medical services organizations, clinics, or hospitals), including, but not limited to ambulance transport, hospital stays, physician, and pharmaceutical goods and services. You agree to observe and obey all posted rules and warnings, to follow any instructions or directions provided to you by Bike Streets or the Activity organizer and to abide by any decision of any Activity official relative to your ability to safely participate in or attend the Activity. You understand and agree that you are expected to exhibit appropriate behavior at all times while participating in the Activity and to obey all applicable laws, including traffic laws, while participating in or attending the Activity. This includes, generally, respect for other people, equipment, facilities or property. You agree that Activity officials (in an organized event) may dismiss you, without refund, should your behavior, in the opinion of Bike Streets, endanger the safety of or negatively affect the Activity. You understand and agree that you are responsible for taking care of your own personal belongings during the Activity and, to the maximum extent permitted by law, Bike Streets shall not be responsible for any personal item or property that is lost, damaged or stolen at or during the Activity. You understand and agree that Bike Streets reserves the right to cancel any pre-planned Activity in the event of weather (including, but not limited to, heat, tornadoes, earthquakes, fires, storms, lightning and floods), accidents, acts of war or terrorism, military conflicts or riots, or for any reason that would affect the safety and security of Activity participants and/or spectators or the feasibility of the Activity to be held. In the event of such cancellation or any other cancellation for any reason, there will be no refund of your payment unless authorized and paid by Bike Streets. You agree to hold Bike Streets harmless from any liability, claim, demand, cause of action, damage, loss, or expense (including court costs and reasonable attorneys’ fees) of any kind or nature, related to any cancellation or disruption of the Activity.
4. RELEASE AND WAIVER OF LIABILITY. YOU HEREBY WAIVE, RELEASE, COVENANT NOT TO SUE, WAIVE ANY AND ALL CLAIMS AGAINST, FOREVER DISCHARGE AND HOLD HARMLESS BIKES STREETS AND ALL RELEASED PARTIES, FOR AND FROM ALL LIABILITIES, CLAIMS, ACTIONS, OR DAMAGES THAT YOU MAY HAVE AGAINST THEM ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR REGISTRATION AND/OR PARTICIPATION IN THE ACTIVITY, INCLUDING WITHOUT LIMITATION ANY LIABILITIES, CLAIMS, ACTIONS, OR DAMAGES CAUSED BY THE ALLEGED OR ACTUAL NEGLIGENCE OF THE ABOVE PARTIES (INCLUDING ANY NEGLIGENT RESCUE ATTEMPT and/or failure to take reasonable steps to protect against the risks of the Activity), ERRORS OR OMISSIONS, BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, THE ACTION OR INACTION OF ANY OF THE RELEASED PARTIES, OR OTHERWISE. YOU ALSO AGREE TO PAY ALL COSTS AND ATTORNEY’S FEES INCURRED BY ANY RELEASED PARTY IN DEFENDING A CLAIM OR SUIT BROUGHT AS A RESULT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY.
BIKE STREETS AND ALL RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BIKE STREETS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, BIKE STREETS WILL NOT BE RESPONSIBLE FOR (A) THE USE OR THE INABILITY TO USE THE BIKE STREETS SITES, PRODUCTS OR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE BIKE STREETS SITES; (C) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY BIKE STREETS; (D) PERSONAL INJURY; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (F) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE BIKE STREETS SITES; (G) ANY OTHER MATTER RELATING TO THE BIKE STREETS SITES, PRODUCTS, OR SERVICES; (H) DEATH; (I) PROPERTY LOSS, THEFT, OR DAMAGE; (J) ANY MEDICAL COSTS OF ANY KIND WHATSOEVER; AND/OR (K) ANY OTHER DAMAGES, LOSSES, CLAIMS OR LIABILITIES IN ANY WAY RELATED TO OR ARISING FROM YOUR PARTICIPATION IN THE ACTIVITY. YOU AGREE THAT BIKE STREETS’S MAXIMUM LIABILITY TO YOU, FOR ANY REASON OR CAUSE WHATSOEVER, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES RECEIVED BY BIKE STREETS FROM YOU.
NOTHING IN THIS RELEASE AND WAIVER SHALL BE CONSTRUED AS LIMITING OR EXCLUDING BIKE STREETS’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER MATTER FOR WHICH IT WOULD BE ILLEGAL OR UNLAWFUL TO EXCLUDE OR ATTEMPT TO EXCLUDE LIABILITY.
6. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE BIKE STREETS SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BIKE STREETS MAKES NO WARRANTY THAT BIKE STREETS SITES’ SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. BIKE STREETS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. BIKE STREETS DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON, OR PROVIDED IN CONNECTION WITH, THE BIKE STREETS SITES. BIKE STREETS IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
7. Use of Likeness. You hereby irrevocably grant Bike Streets and the Activity organizer permission to record your voice and photograph you in conjunction with the Activity. You understand and agree that the term "photograph" as used herein encompasses both still photographs and video recordings. You further grant Bike Streets and any Activity event organizer permission to use your photograph, voice, and likeness taken in conjunction with the Activity, in any form, including edited versions, in or over any medium including without limitation streaming audio and/or video over the internet, broadcast, cable, satellite transmissions, and media that are unknown at this time, worldwide for any legitimate purpose including, without limitation, any commercial purpose, without compensation to you. Your further waive any right of inspection of any such recordings and photographs. You understand that any such recordings and photographs recorded by Bike Streets and/or the Activity organizer shall become the sole property of Bike Streets and/or the Activity holder, as applicable.
8. Severability. You further expressly agree that this Release and Waiver is intended to be as broad and inclusive as is permitted by applicable law, and if any provision of this Release and Waiver is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Release and Waiver (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and the Release and Waiver shall be deemed amended accordingly.
10. Applicable Law; Consent to Jurisdiction; Mandatory Arbitration. Except as prohibited by law, all disputes arising under or related to this Release and Waiver which cannot be resolved through negotiations between the parties shall be submitted to binding arbitration. If the parties fail to reach a settlement of their dispute within fifteen (15) days after the earliest date upon which one of the parties notified the other(s) of its desire to attempt to resolve the dispute, then the dispute shall be promptly submitted to arbitration by a single arbitrator through the Judicial Arbiter Group ("JAG"), any successor of the JAG, or any similar arbitration provider who can provide a former judge to conduct such arbitration if JAG is no longer in existence. If the parties are unable to agree upon the arbitrator, the arbiter shall be selected by the scheduling coordinator for JAG on the basis, if possible, of his or her expertise in the subject matter(s) of the dispute. The decision of the arbitrator shall be final, non-appealable and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitration shall take place in Denver, Colorado. The arbitrator shall be bound by the laws of the State of Colorado applicable to the issues involved in the arbitration and all Colorado rules relating to the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. All discovery shall be completed in accordance with the time limitations prescribed in the Colorado rules of civil procedure, unless otherwise agreed by the parties or ordered by the arbitrator on the basis of strict necessity adequately demonstrated by the party requesting an extension of time. The arbitrator shall have the power to grant equitable relief where applicable under Colorado law, and shall be entitled to make an award of punitive damages when applicable under Colorado law. The arbitrator shall issue a written opinion setting forth his or her decision and the reasons therefor within thirty (30) days after the arbitration proceeding is concluded. The obligation of the parties to submit any dispute arising under or related to this Release and Waiver to arbitration as provided in this Section shall survive the expiration or earlier termination of this Release and Waiver. Notwithstanding the foregoing, either party may seek and obtain an injunction or other appropriate relief from a court only to preserve or protect trademarks, trade names, copyrights, patents, trade secrets or other intellectual property or confidential information or to preserve the status quo with respect to any matter pending conclusion of the arbitration proceeding, but no such application to a court shall in any way be permitted to stay or otherwise impede the progress of the arbitration proceeding.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
12. Selection of Counsel. Any party obligated to provide a defense hereunder shall do so with qualified counsel with demonstrable experience defending claims of the type to be defended who is selected by the party providing the defense, and such counsel shall be deemed to have been approved by the party to be defended, without further action by said party, unless the party to be defended establishes: (i) a substantive conflict of interest with such counsel; or (ii) a substantial cause or reason to withhold such approval.
13. Waiver. A waiver of any default, breach or non-compliance under this Waiver and Release is not effective unless in writing and signed by the party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a party in respect of any default, breach, non-observance or by anything done or omitted to be done by another party.
14. Updates. Should the terms of this Release and Wavier be updated at any time, you agree to be bound by the most recent version that is in place at the time you participate in any Activity.