Brimstone Recreation New Permit

Legal Terms

PREAMBLE:

            I (referred to herein as “Passholder”) desire to be permitted access to the land of
            Brimstone Recreation, LLC (hereinafter referred to as “Brimstone”) and to participate in recreational
            events and activities on the Brimstone land. Now, therefore in consideration of being permitted to use
            the Brimstone land and to participate in Brimstone’s recreational events, activities and
            opportunities, Passholder agrees, acknowledges, and contracts as follows:

            ACKNOWLEDGEMENT AND ASSUMPTION OF RISK:

            I understand the use of Brimstone Recreation, LLC (hereafter referred to as “Brimstone”) land, equipment
            including, but not limited to trails, lodging, campgrounds and parking areas, both owned
            and non-owned, involves the danger of encountering both known and unknown hazards and inherent and non
            inherent risks to my health and safety including, but not limited to bodily injury, paralysis,
            disability, dismemberment, death, illness or disease, physical or mental damage to myself, to my
            property, or to spectators or other third-parties.

            I hereby expressly assume all risks and dangers and all responsibility for any physical or mental injury
            or death or other losses and/or damages to person or property of any nature resulting from my use of the
            land and/or participation in recreational events and activities, including proximity to
            events or activities as to which I am an observer and not a participant, whether caused in whole or in
            part by the negligence or other conduct of Brimstone, its owners, agents, officers, employees, or its
            Licensors and Lessors.

            I acknowledge that recreational activities and events including but not limited to ATV and UTV riding,
            hunting, fishing, horseback riding, jeep riding, hiking, mountain biking, rock climbing, and target
            shooting have inherent risks, hazards, and dangers for anyone, that cannot be eliminated or itemized,
            particularly in a wilderness environment. I UNDERSTAND THAT THESE RISKS, HAZARDS, AND DANGERS INCLUDE
            WITHOUT LIMITATION:

            1. The risk of handling firearms and being near others that have firearms in their possession;
            2. The risk of injury from ammunition and shot from other guns;
            3. The risk of equipment failure and/or malfunction of my own or others’ equipment which may have been
            rented, borrowed or personally owned;
            4. The risk of my own negligence and/or the negligence of others, including employees, agents,
            independent contractors or representatives, or representatives of Brimstone, including but not limited
            to operator error;
            5. The risk of activities in rugged, remote country, including encounters with wildlife, animals and
            insects;
            6. The risks of inclement weather conditions and unavailability of immediate medical attention in the
            wilderness in case of injury;
            7. The risk of temperature extremes, cold weather and heat related injuries and illness including but
            not limited to frostnip, frost bite, heat exhaustion, heat stroke, sunburn, hypothermia and dehydration;
            8. The risk of injury from riding or using an all terrain vehicle (ATV), utility terrain vehicle (UTV)
            or any vehicle used either off or on the paved road;
            9. The risk of variations in terrain including creeks, water, bridges, traveled roads, wild things,
            stumps, forest growth, debris, rocks, cliffs, caves, holes, and other obstacles whether they are obvious
            or not obvious, man-made or natural;
            10. The risk of injury from the use of tree stands and tree climbing;
            11. The risk of the propensity of an animal to behave in ways that may result in injury, harm, or death
            to persons on or around them;
            12. The unpredictability of an animal's reaction to such things as sounds, sudden movement and
            unfamiliar objects, persons, or other animals;
            13. The risk of collision with animals or objects;
            14. The risk that a given participant, including myself, or other person, including an employee or agent
            of Brimstone, will act in a negligent or reckless manner that may contribute to the injury to myself or
            others, such as failing to maintain control over the animal or not acting within his or her ability;
            15. The risk from attack by or encounters with wildlife, animals, reptiles and insects;
            16. Acts of God including but not limited to wind, rain, hail, snow, ice, lightning, tornadoes or
            tornadic activity, and the results of the aforementioned that may lead to unsafe conditions;

            I understand the risks, hazards, and dangers as listed above and acknowledge that other unknown or
            unanticipated risks and dangers exist which may result in injury, illness or death. I understand that
            these recreational activities require good physical conditioning and a degree of skill and knowledge. I
            believe that I have the physical conditioning and the degree of skill and knowledge necessary for me to
            engage safely in the recreational activities of my choosing. I understand that I have responsibilities.
            My use of the land and participation in recreational activities is purely voluntary. No
            one is forcing me to participate and I elect to participate in spite of the risks. I AM VOLUNTARILY
            USING THE LAND, FACILIITIES, AND/OR SERVICES OF BRIMSTONE BASED ON MY INDEPENDENT ASSESSMENT, AND NOT
            ANY REPRESENTATION OR PRESENTATION BY BRIMSTONE, OF THE INHERENT OR OTHER NON INHERENT RISKS, HAZARDS,
            AND DANGERS INVOLVED AND HEREBY ASSUME AND ACCEPT ANY AND ALL RISKS OF INJURY, PARALYSIS, OR DEATH.

            INDEMNIFICATION AGREEMENT:

            In addition to the above Acknowledgement and Assumption of Risk, I acknowledge, and agree to SAVE AND
            HOLD HARMLESS, INDEMNIFY, AND FOREVER DEFEND BRIMSTONE and its licensors, lessors, owners, agents,
            officers, employees, heirs and assigns, from and against any and all claims, liabilities, strict
            liabilities, punitive damages, actions or causes of actions, demands, expenses, liabilities (including
            reasonable attorney's fees) and NEGLIGENCE made or brought by the undersigned or by anyone on behalf of
            the undersigned, as a result of the undersigned's participation in any Brimstone recreational events and
            activities and my use of the Brimstone land. I will reimburse Brimstone for all attorney fees and
            expenses incurred in defending any suit or claim made by me or on my behalf or to which I or my estate
            is a party.


            WAIVER AND RELEASE OF LIABILITY:

            By SIGNING WITH MY ELECTRONIC SIGNATURE and / or CLICKING SIGN or signing below, I acknowledge agree and
            contract that I am aware of all dangers aforementioned, and even so, I do hereby, on behalf of myself,
            my personal representatives and my heirs, voluntarily forever RELEASE, WAIVE, and DISCHARGE BRIMSTONE
            and its licensors, lessors, owners, agents, officers, employees, heirs and assigns from any and all
            claims, liabilities, strict liabilities, punitive damages, actions or causes of actions or losses or
            damages for bodily injury, property, wrongful death, loss of services or otherwise without limit which
            may arise out of my use of the Brimstone land or my participation in any activities
            thereon or from any cause whatsoever. I specifically understand that I am releasing, discharging, and
            waiving any claims or actions WHEREVER IN THE WORLD, that I may have presently or in the future for the
            negligent acts or other conduct by Brimstone and its licensors, lessors, owners, agents, officers,
            employees, heirs and assigns. This document shall be forever binding on my heirs, executors,
            administrators, and assigns.

            I HEREBY CERTIFY, COVENANT AND WARRANT THAT:

            I understand the Brimstone Resort policy as follows:

            Access to Brimstone trails is limited to Brimstone Resort Passholders staying at
            Brimstone Resort designated facilities. The Purchase of a Brimstone Resort Pass provides access to the
            Brimstone land and trail system including showerhouse facilities ONLY while staying or parked at one of
            the designated Brimstone Resort properties. Any Brimstone Passholder found in violation of the policy
            will have access temporarily or permanently suspended or revoked.

            I will not use any Brimstone equipment, facilities or services if I do not have the ability to use such
            facilities, equipment or services safely without instruction and until I have requested and received
            sufficient instruction to permit safe usage.

            I have no health condition that will put me or others at increased risk while participating in
            recreational activities.

            I will follow all rules and safety standards applicable to recreational activities.

            I will ride only on marked trails.

            I am solely responsible for selecting the recreational activity that best suits my experience and
            ability.

            I will not commit any act which shall interfere with the operation of Brimstone, its sponsors or related
            companies.

            I will not commit an act which will damage or harm BRIMSTONE, its operations or reputation.

            I understand that Brimstone reserves the exclusive right to temporarily or permanently suspend or revoke
            a Passholders access privileges for violation of any published or posted rule or regulation or for any
            reason whatsoever.


            The laws of the state of Tennessee shall govern this Agreement. Any provision or term of this agreement
            that is invalid, illegal or unenforceable in any respect shall be severed and ineffective to the extent
            of such invalidity, illegality, or unenforceability without in any way affecting the validity, legality
            and enforceability of the remaining provisions and terms of the Agreement.

            WAIVER OF JURY TRIAL AS TO ANY ALLEGED CLAIMS ARISING SUBSEQUENT TO THE DATE OF THIS AGREEMENT:

            TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, I HEREBY IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY
            FOR ANY ALLEGED CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING EITHER BEFORE OR
            SUBSEQUENT TO THE DATE OF THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. I AGREE THAT
            BRIMSTONE MAY FILE A COPY OF THIS SECTION OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF MY
            KNOWING, VOLUNTARY AND BARGAINED AGREEMENT TO IRREVOCABLY WAIVE MY RIGHT TO TRIAL BY JURY, AND THAT ANY
            DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MYSELF AND BRIMSTONE SHALL INSTEAD BE TRIED BY THE CIRCUIT
            COURT IN CAMPBELL COUNTY, TENNESSEE BY A JUDGE SITTING WITHOUT A JURY. I HEREBY ACKNOWLEDGE THAT THIS
            PROVISION MAY NOT BE ORALLY WAIVED AND CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BRIMSTONE, INCLUDING
            BRIMSTONE’S LEGAL COUNSEL, JOSEPH G. COKER, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BRIMSTONE
            WOULD NOT, IN THE EVENT OF SUCH DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISION OF THIS SECTION. I
            ACKNOWLEDGE THAT BRIMSTONE HAS, IN PART, BEEN MATERIALLY INDUCED TO ENTER INTO THIS AGREEMENT IN
            RELIANCE OF THE PROVISIONS OF THIS SECTION.


			COVID-19 WAIVER OF LIABILITY AND INDEMNIFICATION



1.  With full awareness and appreciation of the risks involved, I agree, for myself and on behalf of my family, spouse, estate, heirs, executors, administrators, assigns, and personal representatives, hereby forever release, waive, discharge, Brimstone Recreation, LLC (hereinafter referred to as “Brimstone”) and its’ agents, representatives, independent contractors, affiliates, employees, successors, and assigns (collectively the “Released Parties”) from any and all liability, claims, demands, actions, and causes of action whatsoever, directly or indirectly arising out of or related to any loss, damage, or injury, including death, that may be sustained by me related to COVID-19 whether caused by the negligence of the Released Parties, any third-party visiting Brimstone Recreation, LLC, or otherwise, while participating in any activity while in, on, or around Brimstone Recreation, LLC and/or while using any Brimstone’s facilities, tools, equipment, or materials.



2.  I agree to indemnify, defend, and hold harmless the Released Parties from and against any and all costs, expenses, damages, claims, lawsuits, judgments, losses, and/or liabilities (including attorney fees) arising either directly or indirectly from or related to any and all claims made by or against any of the Released Parties due to bodily injury, death, loss of use, monetary loss, or any other injury from or related to my use of the Brimstone facilities, tools, equipment, or materials, whether caused by the negligence of the Released Parties or otherwise specifically related to COVID-19.



3.  By purchasing a Brimstone Permit, I acknowledge and represent that I have read the foregoing Waiver of Liability, understand it and am agreeing to this voluntarily as my own free act and deed, including without limitation the Release of Liability and Indemnification requirements contained in this document; I am sufficiently informed about the risks involved in using Brimstone’s facilities to decide whether to sign this document; no oral representations, statements, or inducements, apart from the foregoing written agreement, have been made; I am at least eighteen (18) years of age and fully competent; and I execute this document for full, adequate, and complete consideration fully intending to be bound by the same. I agree that this Wavier of Liability shall be governed by and construed in accordance with the laws of the State of Tennessee, and that if any of the provisions hereof are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Wavier of Liability as a whole. This waiver remains in effect until the State of Tennessee lifts all COVID-19 related mandates.





CERTIFICATION: In the interest of protecting Brimstone passholders, visitors and employees, I hereby certify that:



I have NOT tested positive COVID-19 during the past 30 days;
I am NOT currently awaiting the results of COVID-19 testing;
Within the last fourteen (14) day, I have NOT been in close contact with someone who has tested positive for COVID-19, is suspected of having COVID-19, or has symptoms associated with COVID-19;
I do NOT currently have a fever of 100.4 degrees or higher;
Within the last fourteen (14) day, I have NOT experienced any of the following symptoms: fever; cough; shortness of breath; body aches or chills; loss of taste or smell; and
I WILL practice safe social distancing, including avoiding large gatherings and maintaining a distance of six (6) feet from other people; and
I WILL WEAR appropriate face-coverings when interacting with Brimstone passholders and employees.

Terms and Conditions

DISCLAIMER



You expressly understand and agree that: (a) this Site and any of the services are provided on an "as is" and "as available" basis and that this site makes no warranties, representations or conditions (as used in this section "warranties") of any kind, whether express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement and that any such warranties are hereby expressly disclaimed, and (b) this site specifically makes no warranties that a it or any of its services, including any content, information, products or services obtained from or through the use of this site or any of the services, will be provided on an uninterrupted, timely, secure or error-free basis or that such services or the results derived therefrom will meet your requirements or expectations.



UNLAWFUL RE-SALE OF TICKETS



Unlawful resale of tickets (or attempted resale) is grounds for seizure and cancellation without compensation. A ticket shall not be used for advertising, promotions, contests or sweepstakes, unless formal written authorization is given by the Event Promoter, provided that even if such consent is obtained, any use of Event Promoter's trademarks and other intellectual property is subject to the Event Promoter’s consent.



PERFORMERS/ARTISTS/ACTS/PLAYERS SUBJECT TO CHANGE



Performers, Artists, Acts, Players are subject to change or cancellation at any time without notice. No refund will be owed if any performer, artist, act, player or any other scheduled performance, person or group is changed or canceled and the event still occurs.



NO REFUND OR EXCHANGE



All purchases are non-refundable and not able to be exchanged.



RAIN OR SHINE



All events are considered RAIN or SHINE. No refunds will be given due to inclement weather.



CONTRACT CHANGES

Brimstone Recreation, LLC reserves the right at any time to modify this Agreement and to add new or additional terms or conditions on your use of Services.  Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement.  Your continued use of Services will be deemed acceptance thereof.



LIMITATION OF LIABILITY



You expressly understand and agree that in no event shall this Site, including its affiliates and licensors, be liable for any damages whatsoever, including any direct, indirect, incidental, consequential, special or exemplary damages, and any damages for loss of profits, savings, goodwill or other intangible losses, regardless of whether this site had been advised of or could have foreseen the possibility of such damages, arising out of or in connection with: (a) the use, inability to use or performance of any of the services of this site, or (b) any unauthorized access to or modification to any of your content or transmissions, or (c) any other matter relating to this site or any of the services.

Under Tennessee law, an adventure tourism professional is not liable for an injury to or the death of a participant in adventure tourism activities resulting from the inherant risks of such activities, pursuant to Tennessee code annotated, title 11, chapter 11.

FOR PASSHOLDERS APPLICANTS OF MINORITY AGE, UNDER THE AGE OF 18

            This is to certify that I, as Parent, Guardian, Temporary Guardian with legal responsibility for the a
            Passholder applicant under the age of 18 (hereinafter referred to as “Minor Passholder”), do hereby
            CONSENT AND AGREE not only to his/her release of Brimstone and all Releasees, from any and all claims,
            actions and liabilities incident to his/her use of the land, trails, of Brimstone. By
            signing this form as the Parent or Guardian of a Minor Passholder, in addition to binding myself and the
            Minor Passholder to the entire terms hereof, I am certifying the following:

            Any machine operated by the Minor Passholder will be of a model that is recommended by the manufacturer
            as appropriate to the minor’s age and size;
            The Minor Passholder shall at all times wear a Department of Transportation (DOT) certified helmet,
            including eye protection, gloves, long pants and boots while operating or as a passenger of any off road
            vehicle.
            All governing rules, regulations, and statements of understanding regarding inherent risks in the use of
            the land of Brimstone have been reviewed by me and explained completely and in entirety
            to the Minor Passholder in sufficient detail, so that the Minor Passholder can abide by the same; and
            Any Minor Passholder for whom I am signing that is under the age of 18 shall remain under my immediate,
            close supervision and within my sight at all times.

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