Water Activity Waiver
I, hereby agree to the following terms and conditions in order for my child (named below) to participate in water activities with Swell, LLC. This waiver shall be valid for one (1) year.
1. Assumption of Risk
I understand that there are inherent risks associated with water activities, including but not limited to drowning, injury, sun burn, stings and bites from wildlife, infections from waterborne pathogens or contamination, and other illness. I understand that the water activities may include the use of a surfboard or paddle board, which may increase the risk and severity of injury. My child does not have any mental or physical conditions that would make participation in this activity an increased risk and if so, I have assumed such risks. I have had the opportunity to ask questions and my questions have been reasonably answered. I further acknowledge that I am aware of the risks associated with water activities, and I am voluntarily assuming those risks for my child. To reduce the risk of injury, I agree to:
- Make sure the child has eaten.
- Make sure the child is hydrated.
- Stay calm and positive so they don’t pick up on anxious energy.
- Apply reef-safe sunscreen on the child before heading to the lesson.
- Make sure the child is dressed appropriately: rash guard, Wet suit (if cold), booties (if appropriate).
2. Indemnification and Release
For adequate consideration, I agree to indemnify and hold harmless Swell, LLC, its employees, agents, owners, and volunteers from any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with my child’s participation in water activities. This includes, but is not limited to, claims for personal injury, property damage, and wrongful death. This Section 2 shall survive termination or expiration of this waiver.
IN WITNESS WHEREOF, the undersigned agrees to the foregoing as a of the date written below.
________________________________
Name
_______________________________
Signature
Child’s Name and age: (may be more than one): ______________________________________________
_____________________
Date
Service Agreement
THIS SERVICE AGREEMENT (this “Agreement”) is by and between the customer signed below (“Customer”) and Swell, LLC, a Hawaii limited liability company (the “Company”) as of the date first written below.
NOW, THEREFORE, the parties agree as follows:
- Service. The Company shall provide the service listed on Exhibit A (the “Class”).
- Eligibility. If Customer is executing this Agreement on behalf of a minor child (as determined by applicable state law), Customer represents that it is the parent or legal guardian of the child or children (each, a “Child” and collectively, “Children”) attending the Class. Customer represents and warrants that all Participants meet the eligibility requirements of the Class. “Participants” means Customer, if Customer is attending the Class, and all Children who are also attending the Class.
- Behavior. Customer covenants and agrees that Participants shall behave as follows: Participants are expected to behave appropriately during class and follow the instructor’s instructions. Participants are not allowed to: Be verbally or physical combative with the instructor, Disrupt the class, Be disrespectful to other Participants or the instructor, Be intoxicated or impaired.
Company reserves the right to dismiss a Participant who exhibits inappropriate behavior. Customer will not be entitled to a refund for a dismissed Participant.
4. Refunds. Customer may cancel the Class and terminate this Agreement up to 72 hours before the Class is scheduled to occur. After that, no refunds will be given. The Company may, at its discretion, issue a refund for a Class that has been cancelled by the Company or, alternatively, work with Customer to re-schedule the Class.
5. Term. The term of this Agreement shall be from the date written below until the completion of the Class set forth on Exhibit A, including any re-scheduling of the Class. If no date for a Class is set forth on Exhibit A, the term shall be one (1) year.
6. Indemnification. By enrolling in a Class, Customer agrees to indemnify and hold harmless the Company, its employees, and agents from any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with the Participant’s participation in the Class; provided that such claims, losses, damages, liabilities, costs, and expenses do not arise from the intentional misconduct of the Company. This Section shall survive termination of the Agreement.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT OR THE PERFORMANCE OF ITS SERVICES, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES EXCEEDING THE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT. THIS SECTION SHALL SURVIVE TERMINATION OF THE AGREEMENT.
8. Disclaimer of Warranty. The Class is provided “as is” and without any express or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Company does not warrant that the Class will be error-free or that the operation of the Class will be uninterrupted. The Company disclaims all liability for any damages, including, but not limited to, direct, indirect, incidental, consequential, special, and punitive damages, arising out of or in connection with the use or participation in the Class.
9. Governing Law. These terms and conditions shall be governed by and construed in accordance with the laws of the State of Hawaii.
10. Entire Agreement. These terms and conditions constitute the entire agreement between the Company and the parent/guardian with respect to the water session and supersede all prior or contemporaneous communications, representations, or agreements, whether oral or written.
11. Severability. If any provision of these terms and conditions is held to be invalid or unenforceable, such provision shall be struck from these terms and conditions and the remaining provisions shall remain in full force and effect.
12. Waiver. No waiver of any provision of these terms and conditions shall be effective unless in writing and signed by both parties.
13. Force Majeure. The Company shall not be liable for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by or results from any event beyond the reasonable control of such party, including, but not limited to, weather, illness, epidemics, acts of God, acts of war, terrorism, civil unrest, strikes, lockouts, embargoes, government orders, acts of regulatory agencies, or other events that are beyond the reasonable control of such party.
If Company is unable to perform under this Agreement due to a force majeure event, Company shall promptly notify the other party of the event and the expected duration of the delay. The parties shall then cooperate in good faith to minimize the impact of the event on their respective obligations under this Agreement, such as by having Company re-schedule the Class.
14. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, upon electronic mail being sent, upon the first business day following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested.
15. Headings. The headings in these terms and conditions are for convenience only and shall not affect their interpretation.
16. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date below.
CUSTOMER COMPANY
Swell, LLC
_________________________ _________________________
Name: Stefania Xytakis, Owner
_____________________________
Signature
_________________________
Date
PARTICPANTS (Child’s Name)
Name:_________________________
Name:_________________________
Name:_________________________