Massachusetts Avenue Project (MAP) Indemnification and Waiver Agreement
THIS INDEMNIFICATION AND WAIVER AGREEMENT (this “Agreement”) is made as of the ____ day of ________________, 20___ (the “Effective Date”), by and between Massachusetts Avenue Project, a Buffalo, NY non-profit with a principal office at 387 Massachusetts Avenue, Buffalo, New York 14213 (“MAP”), and _______________________ (“Volunteer”), a (please circle one) [corporation/ limited liability company/ community organization or individual] located at _______________________________ (Volunteer address).
WHEREAS, MAP owns and operates a building and farm at 387 Massachusetts Avenue, Buffalo, New York and additional land at 40-44 Winter Street (the “Properties”) and as a condition to Volunteer’s use and access to the Properties, MAP has requested that the volunteer execute this Agreement to place reasonable limitations on MAP’s liability for on-site conditions.
The above named parties agree as follows:
1. To the fullest extent permitted by law, including the prohibitions of New York General Obligations Law 5-322.1, Invitee will indemnify, and hold harmless MAP, and each of their respective affiliates, directors, partners, shareholders, managers, members, representatives, agents, and employees (collectively the “MAP Indemnitees”) from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including reasonable legal fees and court costs and liability arising in whole or in part from any injury and/or death to an individual or damage to or loss of any property to the extent resulting from the acts, errors, omissions, breach, or default by the volunteer, or any license of the volunteer, in connection with Volunteer’s use of an access to the Properties, excepting any claims, suits, liens, judgments, damages, losses and expenses solely caused by the gross negligence or intentional misconduct of a MAP Indemnitee.
2. To the extent allowable by law, the volunteer waives any claims it may have against any MAP Indemnitee as a result of the volunteer’s use of and access to the Properties, and further releases all MAP Indemnitees from any and all liability for any such claims, except in the event a claim is due solely to any MAP Indemnitee’s gross negligence or intentional misconduct.
3. IN NO EVENT SHALL MAP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR TORT DAMAGES OF ANY NATURE OR KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY IN CONNECTION WITH OR ARISING OUT OF THE USE OF AND ACCESS TO THE PROPERTIES HEREUNDER, EVEN IF MAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MAP BE LIABLE TO THE VOLUNTEER UNDER THIS AGREEMENT WITH RESPECT TO DAMAGES ARISING UNDER ANY CLAIMS OR AGGREGATE OF CLAIMS IN ANY AMOUNT WHICH EXCEEDS THE AGGREGATE AMOUNT OF ANY FEE(S) PAID UNDER THIS AGREEMENT.
4. If any part, term, or provision of this Agreement is held to be illegal or unenforceable the validity or the enforceability of the remainder of this Agreement shall not be affected.
5. This Agreement constitutes the entire understanding between the parties relating to the matters contained herein, and supersedes all prior representations, negotiations, or understandings between the parties. Except as otherwise expressly provided in this Agreement, this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the volunteer and MAP or, in the case of a waiver, by the party against whom the waiver is to be effective. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
6. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its choice of law rules. The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of New York, County of Erie, for the purpose of any suit, action, or other proceeding arising out of this Agreement of the subject matter hereof.
7. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date set forth above.