Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement
By signing this document, you will waive certain legal rights, including the right to sue.
TO: DIVRGE VR Inc., a corporation incorporated under the laws of Canada, its agents, owners, officers, affiliates, volunteers, participants, employees, and all other persons or entities acting in any capacity on their behalf or in affiliation with any of the foregoing (hereinafter collectively referred to as “DIVRGE”):
This Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement (the “Agreement”), together with any documents referred to herein, governs the User’s (described below) use of the DIVRGE virtual reality equipment with various virtual reality content and/or software (the “Services”), at DIVRGE locations (the “Premises”).
IN CONSIDERATION OF DIVRGE allowing the User to use the Services, the User agrees as follows on behalf of themselves, their spouse, children, parents, heirs, assigns, personal representatives and estate:
- By using the Services I confirm that I accept the terms of this Agreement and that I agree to abide by them. The words “I” and “me” in this Agreement refers to the User. Should I access the Services on the behalf of another legal entity, I hereby warrant that I have the authority, actual or implied, to bind that entity to the Agreement. In using the Services, I represent and warrant that I have the capacity to enter into a legal agreement in the province of Ontario. If I do not have the capacity to enter into a legal agreement in the province of Ontario, I may not use the Services unless a parent or legal guardian agrees and consents to this Agreement on my behalf. By permitting a person who lacks capacity to utilize the Services, the parent or legal guardian is hereby bound by this Agreement.
- If I do not agree to the terms of this Agreement I understand that I must promptly discontinue my access to and use of the Services. Any continued use of the Services will be considered as consent and acceptance of the terms of this Agreement the User or their parent or legal guardian.
- I acknowledge that my use of DIVRGE virtual reality equipment entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: seizures, loss of awareness, eye strain, eye or muscle twitching, involuntary movements, altered, blurred, or double vision or other visual abnormalities, dizziness, disorientation, impaired balance, impaired hand-eye coordination, excessive sweating, increased salivation, nausea, light-headedness, discomfort or pain in the head or eyes, drowsiness, decreased ability to multi-task, fatigue, or any symptoms similar to motion sickness, all of which can persist and become more apparent hours after use and which may lead to an increased risk of injury when engaging in normal activities in the real world after leaving the Premises. DIVRGE employees have difficult jobs to perform. They seek to create a safe environment but they are not infallible. They might be unaware of a participant’s health or abilities. They may give incomplete warnings or instructions and the equipment being used might malfunction. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary and I elect to participate in spite of the risks.
- If I and/or my child/ward are injured, I acknowledge that I and/or my child/ward may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurer(s). I hereby represent/affirm that I have adequate insurance to provide coverage for such medical expenses. I understand and agree that DIVRGE will not pay for any cost or expenses incurred by me if I and/or my child/ward are injured.
- UNDER NO CIRCUMSTANCES WILL DIVRGE, ITS REPRESENTATIVES, AFFILIATES, SUPPLIERS, OR OTHER THIRD PARTIES WITH WHICH DIVRGE DOES BUSINESS (“BUSINESS PARTNERS”), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THE USE OF THE SERVICES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFIT, EARNINGS, ANTICIPATED EARNINGS, INTERRUPTION OR LOSS OF BUSINESS, OR ANY CONSEQUENTIAL LOSSES, PROBLEMS, OR FAULT HOWSOEVER ARISING OUT OF THE USE OF THE SERVICES.I HEREBY VOLUNTARILY RELEASE, FOREVER DISCHARGE, AND AGREE TO INDEMNIFY AND HOLD HARMLESS DIVRGE AND TO WAIVE ANY AND ALL CLAIMS, DEMANDS, OR CAUSES OF ACTION, THAT I HAVE OR MAY HAVE IN THE FUTURE AGAINST DIVRGE, AND TO RELEASE DIVRGE FROM ANY AND ALL LIABILITY FOR ANY LOSS, DAMAGE, EXPENSE OR INJURY INCLUDING DEATH THAT I MAY SUFFER OR THAT MY FAMILY, HEIRS, ASSIGNS, PERSONAL REPRESENTATIVES AND ESTATE MAY SUFFER AS A RESULT OF MY ATTENDANCE AT THE PREMISES AND MY USE OF THE SERVICES DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS’ LIABILITY ACT, R.S.O. 1990, c. O. 2 ON THE PART OF DIVRGE AND FURTHER INCLUDING THE FAILURE ON THE PART OF DIVRGE TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF DIVRGE’S VIRTUAL REALITY EQUIPMENT AND VARIOUS VIRTUAL REALITY CONTENT AND/OR SOFTWARE (HEREINAFTER REFERRED TO AS “CLAIMS”).WITHOUT LIMITING THE FOREGOING, THE LIMIT ON DIVRGE’S (INCLUDING ITS BUSINESS PARTNERS) TOTAL CUMULATIVE LIABILITY TO THE USER OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICES WILL BE LIMITED TO A MAXIMUM OF $10.00 CANADIAN DOLLARS.
- I agree to hold harmless and indemnify DIVRGE from any and all liability for any property damage or personal injury to any third party resulting from my use of DIVRGE virtual reality equipment. I also agree to indemnify and fully compensate DIVRGE for any property damage I cause to DIVRGE property, including but not limited to DIVRGE virtual reality equipment, resulting from my use of DIVRGE virtual reality equipment. Furthermore, should DIVRGE or anyone acting on its behalf be required to incur legal fees and costs to enforce this agreement, I agree to indemnify and hold DIVRGE harmless from all such fees and costs. This Agreement shall be effective and binding upon my heirs, next of kin, executors, administrators, assigns and representatives, in the Event(s) of my death or incapacity. I also certify that in the event I am signing on behalf of a minor who is under the age of eighteen years, to whom this Media Release, Rules, Terms and Conditions, Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity applies and that I have the legal authority to execute this release, I approve the foregoing and agree that we shall be bound thereby.
- I acknowledge that I have read, viewed or heard the rules governing my participation and/or my child/ward’s participation in any activity at DIVRGE (the “Divrge Rules of Conduct”). I certify that I understand and have explained the DIVRGE Rules of Conduct to my child/ward. I understand that DIVRGE Rules of Conduct have been implemented for the safety of all participants at DIVRGE, including myself and/or my child/ward. I acknowledge that failure to follow the rules could result in the expulsion of myself and/or my child/ward from DIVRGE.
- Full payment of all applicable fees is required by the User in advance of use of the Services. A full refund will be issued for all reservations cancelled at least forty-eight (48) hours in advance of a scheduled booking. Users who cancel their reservation between forty-eight (48) hours and twenty-four (24) hours in advance of a scheduled booking will be entitled to a full refund less a cancellation fee of 50%. Users who cancel their reservation less than twenty-four (24) hours in advance of a scheduled booking will forfeit all fees paid and shall not be entitled to a refund.
- I further grant DIVRGE the right to photograph, videotape and/or record me and/or my child/ward and to use my or my child/ward’s name, face, likeness, voice and appearance in connection with exhibitions, publicity, advertising and promotional materials without reservation, limitation or compensation.
- Contact details for DIVRGE can be found on DIVRGE’s Website under the “Contact” heading. All notices regarding this Agreement and the Services will be provided in writing to by e-mail or by post using the contact information provided by me upon registration. Notice will be deemed given one (1) business day after e-mail transmission from DIVRGE to me, or two (2) business days after the date of posting.
- DIVRGE offers a variety of software titles with a range of genres and ratings. DIVRGE staff can provide helpful recommendations regarding content, but it is the sole responsibility of the parent / guardian of any patron under the age of eighteen (18) to ensure that the content selected by them is deemed appropriate.
I am aware that using DIVRGE virtual reality equipment, software, many risks, dangers and hazards including, but not limited to, potential injury. I freely accept and fully assume all such risks, dangers and hazards and the possibility of personal injury, death and loss resulting therefrom.
I HEREBY VOLUNTARILY AGREE TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against DIVRGE and to release DIVRGE from any and all liability for any losses, damage, expense or injury including death, that I may suffer, or that my next of kin may suffer as a result of my participation in the Activities and either my use of or my presence at the Premises, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT, RSA 2000 c. 0-4 on the part of DIVRGE and also including the failure on the part of DIVRGE to safeguard or protect me from the risks, dangers and hazards of participating in the Activities.
I have had sufficient opportunity to read this Agreement and the DIVRGE Rules and have read and understood and agree to be bound by their terms. I have also watched the DIVRGE tutorial video in its entirety and accept that my User experience involving the DIVRGE virtual reality equipment is dependent on my own ability to follow the instructions in the said video. ONLY ONE PARTICIPANT IS ALLOWED PER AGREEMENT. I HAVE READ AND I UNDERSTAND THIS AGREEMENT, AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I OR MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST THE RELEASEES.