READ THIS WAIVER AND INDEMNIFICATION (AGREEMENT) CAREFULLY. IT DEFINES OUR RELATIONSHIP AND LIMITS BEAUTIFUL DAY’S LIABILITY.
In exchange for permission to participate in Beautiful Day volunteer events, volunteer must agree to abide by the terms of this agreement, waiver and indemnification. Beautiful Day events include activities associated with bd365 or Beautiful Day Legacy Projects.
- Indemnification.
1.1. Subject to the terms and conditions set forth in Sections 2 (Exceptions and Limitations on Indemnification) and 3 (Indemnification Procedures), Indemnifying Part shall indemnify, hold harmless, and defend Indemnified Party and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party(s)") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys' fees, that are incurred by Indemnified Party or awarded against Indemnified Party in a final non-appealable judgment, administrative proceeding, or any alternative dispute resolution proceeding (collectively, "Losses"), arising out of any third-party claim alleging:
(a) material breach or non-fulfillment of any material representation, warranty, or covenant under/representation or warranty set forth herein or implied by law.
(b) any grossly negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement; or
(c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Party or its Personnel including any reckless or willful misconduct.; or
(d) any failure of Indemnifying Party to materially comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement.
Notwithstanding anything to the contrary in this Agreement, this Section 1.1 does not apply to any claim (whether direct or indirect) for which a sole and exclusive remedy is provided under another section of this Agreement.
- Exceptions and Limitations on Indemnification.
2.1 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless, or defend Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding losses arise out of or result from, in whole or in part, Indemnified Party's:
(a) gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
(b) bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
- Indemnification Procedures.
3.1 Notice of Third-Party Claims. Indemnified Party shall give Indemnifying Party prompt written notice ("Claim Notice") of any Losses or discovery of facts on which Indemnified Party intends to base a request for indemnification under Section 1. Indemnified Party’s failure to provide a Claim Notice to Indemnifying Party under this Section 1 does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party, but in no event shall Indemnifying Party be liable for any costs of Losses that result directly and solely from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Indemnified Party shall furnish promptly to Indemnifying Party copies of all papers and official documents received in respect of any Losses.
Indemnifying Party's duty to defend applies immediately, regardless of whether indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
3.2 Indemnifying Party Control of Defense. Indemnifying Party may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section (an "Indemnified Claim") by sending written notice of the assumption to Indemnified Party on or before 5 Business Days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which Indemnified Party shall find reasonably satisfactory) and at Indemnifying Party's sole cost and expense, the settlement or defense thereof.
3.3 Indemnified Party's Obligations Regarding Indemnifying Party's Control of Defense. If Indemnifying Party assumes control of the defense under Section 3.2 (Indemnifying Party Control of Defense), Indemnified Party:
(a) shall fully cooperate with Indemnifying Party in connection therewith; and
(b) may employ, at any time, separate counsel to represent it; provided, that Indemnified Party is solely responsible for the costs and expenses of any such separate counsel.
3.4 Indemnified Party Control of Defense. Notwithstanding anything to the contrary in Section 3.1 (Indemnification Procedures), Indemnified Party may defend an Indemnified Claim with counsel of its own choosing and without the Indemnifying Party's participation if:
(a) the Indemnified Claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice under Section 3.1 (Notice of Third-Party Claims), and Indemnifying Party fails to assume the defense or refuses to defend the Indemnified Claim under Section 3.2 (Indemnifying Party Control of Defense);
(b) the Indemnified Claim seeks only an injunction or other equitable relief against Indemnified Party; or
(c) Indemnified Party reasonably believes:
(i) that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Indemnifying Party; and
(ii) counsel for Indemnifying Party could not adequately represent the interest of Indemnified Party because such interest could be a conflict with those of Indemnifying Party; or
(iii) such action or proceeding involves, or could have a material effect on, any material matter beyond the scope of indemnification or defense obligations of Indemnifying Party.
3.5 Indemnifying Party's Obligations Regarding Indemnified Party's Control of Defense. If Indemnified Party assumes control of the defense under Section 3.2 (Indemnified Party Control of Defense), Indemnifying Party shall:
(a) reimburse Indemnified Party promptly and periodically for the reasonable costs properly incurred in defending against the Indemnified Claim (including reasonable attorneys' fees and expenses); and
(b) remain responsible to Indemnified Party for any Losses indemnified under Section 1 (Indemnification).
3.6 Settlement of Indemnified Claims by Indemnifying Party. Indemnifying Party shall give prompt written notice to Indemnified Party of any proposed settlement of an Indemnified Claim. Indemnifying Party may not, without Indemnified Party's prior written consent, which Indemnified Party shall not unreasonably withhold, condition, or delay, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise, or consent:
(a) includes an unconditional release of Indemnified Party from all liability arising out of such claim;
(b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnified Party; and
(c) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Indemnified Party or any of Indemnified Party's affiliates.
3.7 Settlement of Indemnified Claims by Indemnified Party. Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Indemnifying Party, which Indemnifying Party shall not unreasonably withhold, condition or delay, unless:
(a) the Indemnified Claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice under Section 3.1 (Notice of Third-Party Claims), and Indemnifying Party fails to assume the defense or refuses to defend the Indemnified Claim under Section 3.5 (Indemnifying Party Control of Defense); or
(b) such settlement, compromise, or consent:
(i) includes an unconditional release of Indemnifying Party from all liability arising out of such claim;
(ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnifying Party; and
(iii) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Indemnifying Party or any of Indemnifying Party's affiliates.
- Public Announcements.
Unless otherwise required by applicable law (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any outside party or news media without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned, or delayed).
- Interpretation.
For purposes of this Agreement, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein
- Headings.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference and all related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement, and the related exhibits and schedules (other than an exception expressly set forth as such in the schedules), the statements in the body of this Agreement shall control.
- Waiver.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege
- Cumulative Remedies.
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise, except to the extent expressly provided in Section 2 (Exceptions and Limitations on Indemnification).
- Equitable Remedies.
Each party hereto acknowledges that a breach or threatened breach by such party of any of its obligations under Section 1 would give rise to irreparable harm to the other party(s) for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party/each of the other parties hereto shall, in addition to any and all other rights and remedies that may be available to it/them in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
- Assignment.
Indemnified party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder
- No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Governing Law.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America (including its statutes of limitations and Cal. Civ. Code § 1646.5), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Submission to Jurisdiction.
Any legal suit, action, or proceeding arising out of or based upon/relating to this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby shall be instituted in any United States federal court or state court located in the state of California in the City of San Jose and County of Santa Clara, and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
- Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest (including criminal activity); (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities. The party suffering a Force Majeure Event shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
- Joint and Several Obligations.
All obligations of indemnifying party(ies) subject to a claim under this Agreement shall be joint and several.
- Relationship of the Parties.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer or agency relationship. Volunteer shall be a “volunteer” as defined by CA. statute or as an “independent contractor” in the alternative, as defined by CA statute or Common Law. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party. Nothing in this Agreement shall be deemed or construed to enlarge the fiduciary duties and responsibilities, if any, Volunteer or any Related Parties, including without limitation in any of their respective capacities as shareholders or directors/members or managers of Indemnified Party.
- Time of the Essence.
Time shall be of the essence in this Agreement.
- Communication.
Signing party authorizes the use of all information provided to Beautiful Day for the purpose of organizing, administering, or communicating.
- Use of Image.
Signing party permits the use by Beautiful Day of their association. name, voice, likeness, image, appearance, or biographical information.
RELEASE OF LIABILITY AND ASSUMPTION OF RISK RELATED TO COVID-19 OR OTHER INFECTIONS
The individual named below (referred to as "I" or "me") desires to participate in Beautiful Day ("Activity") provided by Beautiful Day, a California nonprofit public benefit corporation ("Company") at 3251 Pruneridge Rd., Santa Clara, CA. 95051. A host (“Host”) is a location where the Activity occurs. In consideration for permission by the Company to engage in the Activity, the intangible value that I will gain by participating in the Activity and in recognition of the Company's reliance hereon, I agree to all the terms and conditions set forth in this agreement ("Release").
I am aware and understand that the Activity is a potentially dangerous activity and involves the risk of serious injury, disability, death, or property damage. I am also aware of the highly contagious nature of bacterial and viral diseases including the 2019 novel coronavirus (COVID-19) disease or other infection (collectively, the "Disease") and the risk that I may be exposed to or contract the Disease by engaging in the Activity, which may result in serious illness, personal injury, disability, death, or property damage. I acknowledge that these risks may result from or be compounded by the actions, omissions, or negligence of Company employees or others, including negligent emergency response or rescue operations of the Company. I understand that while the Company has implemented measures to reduce the risk of injury from the Activity and the spread of the Disease, which I agree to abide by in addition to my own personal protective measures taken, the Company cannot guarantee that I will not be injured or become infected with the Disease or other infectious diseases due to my participation in the Activity and that engaging in the Activity may increase my risk of contracting the Disease. NOTWITHSTANDING THESE RISKS, I ACKNOWLEDGE THAT I AM VOLUNTARILY PARTICIPATING IN THE ACTIVITY WITH KNOWLEDGE OF THE DANGERS INVOLVED. I HEREBY AGREE TO ACCEPT AND ASSUME ALL RISKS OF INJURY, ILLNESS, DISABILITY, DEATH, OR PROPERTY DAMAGE ARISING FROM MY ENGAGING IN THE ACTIVITY, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF THE COMPANY, OTHERS LIKEWISE ENGAGING IN THE ACTIVITY, THE HOST OF THE ACTIVITY, OR OTHERWISE.
I hereby expressly waive and release any and all claims, now known or hereafter known, against the Company, and its officers, directors, manager(s), employees, agents, affiliates, successors, assigns, and other volunteers (collectively, "Releasees"), on account of injury, illness, disability, death, or property damage arising out of or attributable to my participation in the Activity, whether arising out of the ordinary negligence of the Company or any Releasees or otherwise. I covenant not to make or bring any such claim against the Company or any other Releasee, and forever release and discharge the Company and all other Releasees from liability under such claims and indemnify Releasees to the full extent permitted by law. This waiver and release does not extend to claims for gross negligence, willful misconduct, or any other liabilities that California law does not permit to be released by agreement.
I confirm that I am: (a) in good health, in proper physical condition, and do not have any medical or other conditions that would impair my ability to participate in the Activity; and (b) not experiencing symptoms of the Disease (such as cough, shortness of breath, or fever), do not have a confirmed or suspected case of the Disease, and have not come in contact in the last 14 days with a person who has been confirmed to have or suspected of having the Disease. I will comply with all federal, state, and local laws, orders, directives, and guidelines related to the Activity and the Disease while participating in the Activity, including, without limitation, requirements related to hand sanitation, social distancing, and use of face coverings and safety equipment]. I will also follow all instructions, recommendations, and cautions of the Company at all times during the Activity. If at any time I believe conditions to be unsafe, that I am no longer in proper physical condition to participate in the Activity, or I begin experiencing symptoms of the Disease, I will immediately discontinue further participation in the Activity.
I shall defend, indemnify, and hold harmless the Company and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees, the costs of enforcing any right to indemnification under this Release, and the cost of pursuing any insurance providers, incurred by/awarded against the Company, other volunteers, or any other Releasees in a final judgment, arising out or resulting from any claim of a third party related to my participation in the Activity, including any claim related to my own negligence or the ordinary negligence of the Company.
I hereby consent to receive medical treatment which may be deemed necessary if I am injured or require medical attention during my participation in the Activity. I understand and agree that I am solely responsible for all costs related to such medical treatment and any related medical transportation and/or evacuation. I hereby release, forever discharge, and hold harmless the Company from any claim whatsoever in connection with such treatment or other medical services. I approve the release of information, including medical information, when asked by authorities or medical professionals reasonably necessary to facilitate keeping the public safe from continued spread or effects of Diseases.
This Release, including its components and attachments, constitutes the sole and entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. If any term or provision of this Release is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision in any other jurisdiction. This Release is binding on and shall inure to the benefit of the Company and me and our respective successors and assigns. All matters arising out of or relating to this Release shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). Any claim or cause of action arising under this Release may be brought only in the federal and state courts located in Santa Clara County, California and I hereby consent to the exclusive jurisdiction of such courts.
BY SIGNING, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS RELEASE AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY.
