Second Wave Dive, LLC Course Agreement and Waiver
THIS COURSE AGREEMENT & WAIVER (THE “AGREEMENT”) IS BY AND BETWEEN SECOND WAVE DIVE, LLC (“SWD”), A TEXAS LIMITED LIABILITY COMPANY AND THE PARTICIPANT REGISTERING FOR SWD’S EVENT AND ACCEPTING THESE TERMS (“PARTICIPANT”), AS OF THE EARLIER DATE LISTED ON THE SIGNATURE PAGE HERETO (THE “EFFECTIVE DATE”). SWD AND PARTICIPANT ARE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”
SWD AND PARTICIPANT AGREE AS FOLLOWS
RELATIONSHIP: SWD offers, as a paid service, courses to individuals to help them improve their professional skills. By accepting the terms of this Agreement, Participant is committing to participate in one of SWD’s courses; the details of the specific course Participant wishes to participate in is to be based on the registration form completed separately, and incorporated herein by this reference, by the Participant.
PAYMENT: The Parties agree to the fee for the course Participant will be attending (the “Course”) listed on the SWD website (https://www.secondwavedive.com/) at the time of Participant’s registration.
OWNERSHIP: SWD and Participant shall each retain ownership of, and all right, title and interest in and to, their respective, pre-existing Intellectual Property ("Intellectual Property" shall mean illustrations, trademarks, works of authorship, trade secrets, techniques, know-how, ideas, concepts, designs, and other content or media utilized or created by either Party, and no license therein, whether express or implied, is granted by this Agreement or as a result of the Course offered by SWD and attended by Participant, with the exception of the Intellectual Property owner’s permission for the receiving Party to use such Intellectual Property for the purposes of Course facilitation.
SWD grants to Participant a royalty-free, paid up, worldwide, perpetual, revocable, non-exclusive, non-transferable license to use the curriculum, worksheets, or any other materials (“Content”) delivered by SWD through the Course, solely for Participant’s use of that Content. Participant may not sell, transfer, or otherwise publicly share any of the Content without prior written permission of SWD. SWD shall retain ownership of and unrestricted right to use any Content. All rights not expressly granted above are reserved to SWD.PROMOTIONAL LICENSE: SWD grants to Participant a non-exclusive, revocable license permitting Participant to display or otherwise publicly use SWD’s name, logo, and/or trademarks in connection with their participation in the Course. However, SWD reserves the right to request immediate removal of public dissemination by Participant if any public use is considered negative or derogatory to SWD or is contrary to SWD’s mission or values.
NAME, IMAGE & LIKENESS RIGHTS: Participant understands and agrees that SWD may collect, record, publish, post, transmit, and/or display Participant’s name, image and likeness and quotes, and testimonial (this includes name, biographical information, likeness, portrait, image, picture, voice, quotes, all or parts of interviews and information obtained from interviews) (collectively the “Media”) for any purpose. Participant hereby voluntarily releases and holds harmless SWD, its directors, employees, and agents acting officially or otherwise, from all manner of suits, actions, claims, demands, and liabilities which may arise from such Media participation. This release applies to any and all media known, and hereafter devised, in perpetuity throughout the universe. Participant understands that all media remains the property of SWD, and waive all rights to original Media, copies of Media, royalties, entitlements, payments, or any other compensation or quid pro benefits which might arise from SWD’s acquisition, storage, display, publication, posting, or distribution of media as described herein. Participant understands that this Agreement constitutes a full and complete waiver of all possible claims of any nature whatsoever, including claims of negligence, personal injury or property loss, or damage, arising out of said Media participation.
Participant acknowledges that the content of a Course is considered valuable intellectual property. As such, Participant expressly agrees not to film or take any photographs or recordings of the content of a Course, at any time, without prior approval from SWD. Any usage of such photographs or recordings shall be subject to prior approval of SWD, regardless of whether SWD provided permission to capture such photographs and/or recordings.ASSUMPTION OF THE RISK: Participant acknowledges and understands that during the Course, Participant may be exposed to a variety of liabilities and risks, foreseen or unforeseen, which are inherent in social activities and courses. These inherent risks include, but are not limited to, the dangers of serious personal injury, death and property damage resulting from, but not limited to: physical contact with or proximity to other participants or third parties who may carry infectious illnesses but may be asymptomatic; falling or tripping due to physical hazards, including but not limited to uneven surfaces or debris; and hazards related to catering, including but not limited to food sickness, allergic reactions, choking (collectively the “Injuries and Damages”). Participant further acknowledges and understands that these Injuries and Damages cannot be entirely eliminated. Participant fully understands and agrees that SWD has not tried to contradict or minimize Participant’s understanding of these risks. Participant understands that Injuries and Damages can occur by natural causes or activities of other persons, environmental circumstances, staff of SWD or other third parties, either as a result of negligence or because of other reasons. Participant understands that third parties cannot necessarily be controlled, and that Participant’s safety and physical health cannot be guaranteed while participating in the Course.
LOSS BY PARTICIPANT: SWD assumes no responsibility for loss of property incurred by Participant, as a result of either the acts or omissions of SWD, Participant, vendors, and/or other attendees, except to the extent of any negligence or misconduct by SWD, its employees, or agents. SWD assumes no responsibility for any items, either personal or professional, brought by anyone to a Course prior to, during, or after the Course. Participant agrees to be solely responsible for all guests and attendees at a Course that were invited and/or sponsored by Participant and the acts of said guests and attendees. Participant agrees to pay for any and all damages arising out of the acts or omissions of any guests or attendees invited and/or sponsored by Participant that attend a Course, except to the extent of any negligence or misconduct by SWD, its employees, or agents.
WAIVER OF LIABILITY FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE: In acknowledging the foregoing ASSUMPTION OF THE RISK section, PARTICIPANT CONFIRMS THEIR UNDERSTANDING OF THE FOLLOWING: To the fullest extent allowed by law, Participant agrees to WAIVE AND DISCHARGE CLAIMS AGAINST, RELEASE FROM LIABILITY, INDEMNIFY, AND HOLD HARMLESS SWD and its parents, subsidiaries and affiliates and their respective past and present officers, directors, stockholders, managers, members, partners, agents and employees (collectively, “Released Parties”) from and against ANY AND ALL LIABILITY on account of, or in any way resulting from, any Participant’s death or personal injury relating to Participant’s participation in the Course, even if caused by NEGLIGENCE of the Released Parties; Such negligence could involve negligent assessment of the Course’s feasibility. Participant understands and intends that the assumption of risk and release is binding upon Participant’s heirs, executors, administrators and assignors. This waiver and release is intended to be as broad and inclusive as is permitted by law.
NON-DISCLOSURE: Participant and SWD acknowledge that in connection with this Agreement they may have occasion to receive or review certain confidential or proprietary business information and materials of the other Party. Both Parties undertake at all times, both during and subsequent to this Agreement, not to disclose, except solely to the extent that such disclosure is authorized in writing by the other Party, and not to use, except for the purposes specifically contemplated by this Agreement, all information which is of a confidential nature and of value to either Party. This includes but is not limited to either Party’s branding, processes, business methods and lists, and particulars of clientele or other commercial information whether or not that information is contained in documents marked as confidential, SWD’s Content. This does not include such information which is now, or hereafter becomes, available in the public domain or is generally known, or hereafter becomes known, through no fault of the receiving Party.
PERFORMANCE: SWD shall make best efforts to produce an informative and positive Course experience for Participant, but SWD makes no representations, guarantees, or warranties as to the effectiveness or performance of the services delivered through the Course. SWD’s services may be combined, integrated, or used with third party products, services, materials, venues and/or any other materials (“Third Party Service”). SWD is responsible for obtaining all necessary licenses and permissions for Third Party Service. SWD shall indemnify and hold Participant harmless from any and all claims, liabilities, costs, losses, damages, or expenses (including attorney fees) arising from any Third Party Service.
In the event of any changes by Third Party Services that materially affect the date or performance of the Course, SWD shall provide notice to Participant and make every effort to find an acceptable alternative to the Third Party Services or find a replacement service at the same or similar cost. If such a situation should occur and a suitable alternative or replacement is not found, responsibility and liability is limited to the return of the fee received for payment of the Course registration.WARRANTIES: SWD represents and warrants that SWD has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances and regulations. SWD further represents and warrants that to the best of SWD’s knowledge, the final services provided by SWD and SWD’s subcontractors do not infringe the rights of any party, and use of anything in connection with the services will not violate the rights of any third parties; however, SWD expressly disclaims any warranty in regard to intellectual property infringement due to the fact that SWD does not conduct infringement or trademark searches. Participant represents and warrants that Participant has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances and regulations. Participant additionally represents and warrants that any information supplied to SWD for purposes of this Agreement shall not subject SWD to any liability whatsoever for infringement or otherwise.
ENTIRE AGREEMENT: This Agreement will constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement. The Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. The execution of this Agreement by electronic transmission will constitute effective execution and delivery of this Agreement for all purposes. No modification of these Terms will be binding unless in writing and signed by both Parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
SEVERABILITY AND NON-WAIVER: If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. Any failure by SWD to require Participant’s performance of any provision in this Agreement shall not affect SWD’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Except for the purposes specifically contemplated by this Agreement, the Parties shall not transfer, assign, or delegate any of its rights, obligations, or duties hereunder to another agency without the other Party’s prior written consent. Any attempted unpermitted assignment or delegation in contravention of this provision shall be null and void.
FORCE MAJEURE: SWD shall not be deemed in breach of this Agreement if SWD is unable to offer the Course or any portion thereof by reason of fire; earthquake; labor dispute; act of a public enemy; death, illness, or incapacity of SWD or any of SWD’s employees or independent contractors; any local, state, federal, national or international law, governmental order or regulation; declaration of any national or state emergency; pandemic or global health crisis; or any other event beyond SWD’s control (collectively “Force Majeure Events”). Upon occurrence of any Force Majeure Event, SWD shall give notice to Participant of its inability to perform or of delay in offering the Course and shall propose a new date for the Course.
CANCELLATION POLICY: In the event that circumstances beyond SWD’s control require changes to Course programming, Participant understands and expressly agrees that SWD may alter the Course delivery methods, and that in doing so SWD will not be deemed to have cancelled or rescheduled the Course. In such event, this Agreement shall remain in full force and effect. The obligation of Participant to make payment to SWD according to the terms of this Agreement is not conditioned on Participant’s satisfaction with the Course or how it is held.
If Participant’s plans change, or if any course adjustments will not work for Participant, Participant shall email SWD at ryan@secondwavedive.com as soon as possible. While we cannot transfer Participant’s Course ticket or allow for substitutions should you wish to cancel, we may be able to help you with a refund according to the following timelines:Notice given to SWD fourteen (14) or more days before the course: Registration is 100% refundable minus processing fees.
Notice given to SWD less than fourteen (14) days but more than one (1) day before course: SWD will refund 50% of Participant’s registration fee.
Notice given to SWD less than one (1) day before course: Registration is non-refundable.
This policy is subject to change. SWD will notify registered participants of any changes to this policy.
GOVERNING LAW: This Agreement will be governed by the laws of the State of Texas. Participant and SWD agree that any claims, legal proceedings, or litigation arising in connection with this Agreement will be brought solely in the courts of the Travis County, and the Parties consent to the jurisdiction of such courts. If any claim of dispute arising out of, or relating to, this Agreement is not settled promptly in the ordinary course of business, the Parties shall seek to resolve such dispute between them, first, by negotiating promptly in good faith. If a legal action is necessary to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs, and expenses.
Last Modified
February 24, 2021