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Non-Agency Disclosure and Acknowledgment Agreement
I understand and agree that PADI Members (“Members”), including Blue Octopus Scuba and/or any individual PADI Instructors and Divemasters associated with the program in which I am participating, are licensed to use various PADI Trademarks and to conduct PADI training, but are not agents, employees or franchisees of PADI Americas, Inc, or its parent, subsidiary and affiliated corporations (“PADI”). I further understand that Member business activities are independent, and are neither owned nor operated by PADI, and that while PADI establishes the standards for PADI diver training programs, it is not responsible for, nor does it have the right to control, the operation of the Members’ business activities and the day-to-day conduct of PADI programs and supervision of divers by the Members or their associated staff. I further understand and agree on behalf of myself, my heirs and my estate that in the event of an injury or death during this activity, neither I nor my estate shall seek to hold PADI liable for the actions, inactions or negligence of Blue Octopus Scuba and/or the instructors and divemasters associated with the activity.
Liability Release and Assumption of Risk Agreement
I hereby affirm I am voluntarily engaging in the recreational activities planned for my trip to, which activities may include, but are not limited to, scuba diving, snorkeling, boating and. If I engage in scuba diving, I affirm that I am a certified diver or a student diver under the control and supervision of a certified scuba instructor, and that I am aware that skin and scuba diving have inherent risks which may result in serious injury or death. I certify that I am fully aware of and expressly assume all risks involved in scuba diving, snorkeling, boating and other activities in which I choose to participate.
I understand and agree that neither Blue Octopus Scuba nor PADI Americas, Inc., nor its affiliate or subsidiary corporations, nor any of their respective employees, officers, agents, contractors or assigns (hereinafter referred to as “Released Parties,”) may be held liable or responsible in any way for any occurrence on this trip which may result in personal injury, property damage or wrongful death or other damages to me, my family, estate, heirs or assigns that may occur as a result of my participation in this trip or as a result of the negligence of any party, including the Released Parties, whether passive or active.
I further state that I am of lawful age and legally competent to sign this Liability Release Agreement, or that I have obtained the written consent of my parent or guardian.
I understand the terms herein are contractual and not a mere recital, and that I have signed this Agreement of my own free act and with the knowledge that I hereby agree to waive my legal rights. I further agree that if any provision of this agreement is found to be unenforceable or invalid, that provision shall be severed from this agreement. The remainder of this agreement will then be construed as though the unenforceable provision had never been contained herein.
I understand and agree that I am not only giving up my right to sue the Released Parties but also any rights my heirs, assigns, or beneficiaries may have to sue the Released Parties resulting from my death. I further represent I have the authority to do so and that my heirs, assigns, and beneficiaries will be estopped from claiming otherwise because of my representations to the Released Parties.
I BY THIS INSTRUMENT, AGREE TO EXEMPT AND RELEASE ALL THE ABOVE LISTED ENTITIES AND/OR INDIVIDUALS, WHETHER SPECIFICALLY NAMED OR NOT, FROM ALL LIABILITY AND RESPONSIBILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, PRODUCT LIABILITY OR THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.
I HAVE FULLY INFORMED MYSELF AND MY HEIRS OF THE CONTENTS OF THIS NON-AGENCY DISCLOSURE AND ACKNOWLEDGEMENT AGREEMENT AND LIABILITY RELEASE AND ASSUMPTION OF RISK AGREEMENT BY READING BOTH BEFORE SIGNING BELOW ON BEHALF OF MYSELF AND MY HEIRS.
This document creates a contractual relationship between Blue Octopus Scuba and You, the "Customer," after reading this entire customer Agreement. In order for your ("Dive Travel Package" or "Trip") reservation to be completed, you must indicate your acceptance of these terms and conditions found in this Agreement by accepting them online and by submitting a payment.
PARTIES TO THIS AGREEMENT: Blue Octopus Scuba (herein referred to as "Blue Octopus," "BOS", "we," "our", or "us") has arranged the Dive Travel Package described in our brochure/flier/website/invoice/confirmation. The traveler (herein referred to as "customer", "I", "you', or "your") who has reserved a Dive Travel Package as described in our Brochure, flier, website, invoice, confirmation, and who intends to participate in the Dive Travel Package so reserved, and by such participation and payment as provided for in this Customer Agreement ("Agreement") hereby agrees to be bound by and subject to the terms and conditions of this Agreement.
BOOKING PROCEDURES: To make a booking you must acknowledge acceptance of this Agreement in the manner provided for on our website and pay a deposit of US $200.00 per person or more as required by supplier. We will then invoice you for the remainder of the cost, which you must pay no later than 60 days before departure of your trip or as indicated for your trip. If you book less than 60 days before departure, full payment must be made on booking by certified check or credit card. The booking is not accepted, and no contract exists until the date shown on the confirmation issued by BOS. Bookings made over the telephone, by email, by website submission, greater than 60 days before departure will not be deemed accepted until we have received your acceptance of the Agreement in the manner provided for on our website or a payment which constitutes agreement to the terms and conditions. If you do not pay the balance of your Dive Travel Package cost within 60 days of departure, your booking will be cancelled and held liable as set forth in the cancellation procedures. We reserve the right to refuse a reservation made by: (I) a person under the age of eighteen (18) without the written consent of a parent or legal guardian first having been obtained, and (ii) a person not certified by an internationally recognized SCUBA diving certification association acceptable to us unless a non-diver position is available for the selected Dive Travel Package.
CANCELLATION PROCEDURES: Notification of cancellation must be made to BOS in writing. If you cancel your Dive Travel Package, the following cancellation charges will be made: (i) Written notification of cancellation received at our offices at least 91 days before departure: $100.00 per person; (ii) Written notification of cancellation received at our offices between 90 and 70 days before departure: $200.00 per person; (iii) Written notification of cancellation received at our offices less than 70 days before departure (or failure to join the trip): 100% of package cost; plus (iv)Those fees are in addition to any the fees and charges that may be assessed by the Vendor or supplier used by BOS, which may be up to 100% of the monies you paid, as BOS must generally reserve your spot with nonrefundable deposits paid to the vendors.
BOS reserves the right to cancel the trip due to lack of sufficient travelers to meet minimums, changed conditions or for any other reason. if BOS cancels the Trip, BOS agrees to refund to you all sums you paid for the Trip as BOS's sole responsibility and liability. Because the trip may not depart for any number of reasons, any airfare or other travel arrangements you make in connection with the trip should be on a refundable basis. BOS is not liable for the charges or terms and conditions of any airline or other carrier selected by you.
BOS STRONGLY, AND WE MEAN VERY STRONGLY, ADVISE YOU TO PURCHASE TRAVEL, TRAVEL/BAGGAGE, TRAVEL CANCELLATION AND DIVE ACCIDENT INSURANCE with terms acceptable to you, available through the Divers Alert Network ("DAN") or elsewhere. BOS is not responsible if you must cancel the trip for personal, business, or medical or other emergencies or reasons.
ACCURACY OF INFORMATION: The information contained in our brochure, pricing documentation, on our website or elsewhere, is correct to the best of our belief, but we accept no liability for any inaccuracies contained therein. Any information or advice provided by us on matters such as permits, visas, vaccinations, climate, clothing, baggage, special equipment, etc. is given in good faith but without responsibility on our part, and you accept responsibility for obtaining any necessary visas and travel documents required for the Dive Travel Package.
MISCELLANEOUS: Any flights forming part of the Dive Travel Package arrangements are subject to the conditions of the carrying airline, which in most cases limit the airline's liability to the passenger in accordance with international law and conventions. Any likeness or image of you secured or taken during your participation in a trip may be used by us or others without charge in all media (whether now existing or in the future invented) for promotional or marketing purposes, including without limitations, promotional materials of any kind, such as brochures, slides, video shows and the internet. By accepting this Agreement, you agree that, if necessary, we may pass you contact details and numbers to any third party connected with the operation of the specific Dive Travel Package which you have booked. Please note that international airlines are required by applicable laws to give border control agencies access to passenger data. Accordingly, any information we hold about you, and your travel arrangements, may be disclosed to the customs and immigration authorities of any country in your itinerary, or to which you may be diverted. This agreement may only be waived or amended by written mutual consent. When you accept this Agreement, you agree with all these conditions.
DOCUMENTATION: You must carry valid proof of citizenship and proper identification. If you are traveling with children, some countries require specific travel permissions from both birth parents. Since required proof varies with each destination, contact us about your specific destination. All persons on Dive Travel Packages must have a current, valid scuba certification card issued by an internationally recognized SCUBA diving certification association acceptable to BOS. Without proper identification, a passport and necessary visas, you will not be permitted to depart. It is your responsibility to verify your necessary travel documents.
RISKS AND WARNINGS: For information regarding possible dangers at international destinations, contact the Travel Advisory Section of the US State Department at (202) 647-5225 or visit https://travel.state.gov/content/travel/en/international-travel.html For medical information contact the Center for Disease Control at (404) 332-4559 or visit https://wwwnc.cdc.gov/travel. DAN members may check the WorldCue Planner provided by DAN as a member benefit.
ARBITRATION: You agree that any dispute concerning, relating or referring to this Agreement, the brochure/flier/website/invoice or any other literature concerning your trip, the trip itself or any claim for damages due to injury or death which occurs during or in connection with, the trip shall be resolved exclusively by binding arbitration according to the then existing rules of the American Arbitration Association in an arbitration conducted in Northern Virginia. Such proceedings will be governed by substantive Virginia law. The dispute will be resolved by a single arbitrator, who must be a lawyer admitted to practice in the courts of at least one state in the United States and have a minimum of fifteen years of experience in civil litigation. The arbitrator so described will be selected by the American Arbitration Association, each party to the dispute shall have the right, on a single occasion, to veto the designation of an arbitrator so selected. There will be judicial review of the arbitrator's decision if either side can show plain error in the application of the law or be able to show an abuse of discretion with respect to factual findings. The parties waive the right to rely on any state law or statute which creates an exception to enforcement of the requirement that disputes be resolved pursuant to arbitration in the manner set forth herein.
WAIVER OF JURY TRIAL: IN CONNECTION WITH ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY AND KNOWLINGLY WAIVE ANY RIGHTS THAT EITHER PARTY MIGHT HAVE TO DEMAND A JURY TRIAL.
EXCLUSIVE GOVERNING LAW ANDEXCLUSIVE JURISDICTION: THIS AGREEMENT AND ANY ACTIONS AND PROCEEDING BROUGHT HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, IF THE RIGHT TO SEEK ARBITRATION FOR ANY REASON WAIVED BY BOTH PARTIES, OR IF JUDICIAL REVIEW OF ANY ARBITRATION DECISION IS SOUGHT, ANY ACTION OR LEGAL PROCEEDING TO IN FORCE ANY PROVISION HEREOF, OR BASED ON ANY RIGHT ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE COMMONWEALTH OF VIRGINIA, OR, IF IT HAS OR CAN ACQUIRE JURISDICTION, THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, AND ALL OF THE PARTIES HERETO HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND OF THE APPROPRIATE APPELLATE COURTS IN ANY SUCH ACTION OR LEGAL PROCEEDING AND WAIVE THE OBJECTION TO VENUE OR JURISDICTION IN CONNECTION THEREWITH.
SEVERABILITY: The invalidity or unenforceability of any part of this Agreement, or the invalidity of its application to a specific situation or circumstance, shall not affect the validity of the remainder of this Agreement, or its application to other situations or circumstances. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
WAIVER: Any failure by either party at any time, or from time to time, to enforce or to require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions and shall not affect or impair such terms and conditions in any way or the right of such party at any time to avail itself of such remedies as it has for the breach or breaches of such terms and conditions.
CONFLICT: In the event of any inconsistency or conflict between term of document and any terms or conditions otherwise applicable to the trip, the terms of this document shall prevail.
EXCLUSIVITY: Except as otherwise expressly provided to the contrary, the rights herein granted with this Agreement are for the benefit of the parties hereto. The terms and conditions of this Agreement shall be exclusive of any advertising, marketing or other sales literature or activities of BOS, including any statements made by BOS representatives, and nothing contained in any of such materials or statements shall be construed to create any rights as a result of or in connection with this Agreement. This written Agreement contains the entire agreement of the parties in connection with the Trip and no other promise, statement, representation, or amendment shall be binding on the parties unless contained in writing signed by both parties.
RESPONSIBILITY: YOU UNDERSTAND AND AGREE THAT ALL TRAVEL ARRANGEMENTS INCLUDED IN THIS TRIP ARE MADE ON YOUR BEHALF UPON THE EXPRESS CONDITION THAT NEITHER BOS NOR IT OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AGENTS, CONTRACTORS OR SUBCONTRACTORS SHALL BE LIABLE OR RESPONSIBLE FOR ANY NEGLIGENT OR WILLFUL ACT OR FAILURE TO ACT OF ANY THIRD PARTY, SUCH AS OPERATORS OF AIRCRAFT, TRAINS, MOTORCOACHES, PRIVATE CARS, CRUISE VESSELES, BOATS, SHIPS OR ANY OTHER CONVEYANCE, HOTELS, SIGHTSEEING EXCURSIONS, EQUIPMENT RENTERS, FOOD AND BEVERAGE SUPPLIERS, LOCAL GROUND HANDLING, ETC. WHICH ARE TO OR DO SUPPLY ANY GOODS OR SERVICES FOR YOUR TRIP. YOU FURTHER UNDERSTAND THAT BOS NEITHER OWNS NOR OPERATES SUCH AS THIRD PARTY SUPPLIERS AND ACCORDINGLY YOU AGREE TO SEEK REMEDIES DIRECTLY AND ONLY AGAINST THOSE SUPPLIERS AND NOT HOLD BOS RESPONSIBLE FOR THEIR ACTS OR OMISSIONS. WITHOUT LIMITATION, BOS IS NOT RESPONSIBLE FOR ANY NEGLIGENT OR WILLFUL ACTS OF OTHERS OR FOR ACTS OF GOD OR FORCE MAJEURE, WEATHER EMERGENCIES, BREAKDOWN OR FAILURE OF DIVING OR MECHANICAL EQUIPMENT, GOVERMENTAL ACTIONS, INCLEMENT WEATHER, SICKNESS, ATTACKS BY ANIMALS, AVAILABILITY OF MEDICAL CARE OR THE ADEQUACY OF THE SAME, CRIMINAL ACTIVITY OF ANY KIND, TERRORISM, WAR,CIVIL DISTURBANCE, SANITARY CONDITIONS, QUALITY OR SANITATION OF FOOD, QUARANTINE, CUSTOMS REGULATIONS, EPIDEMICS, STRIKES, HOTEL OVERBOOKING, SAFETY AND/OR SECURITY STANDARDS AT HOTELS OR OTHER ACCOMMICIDATIONS, ANY PROBLEMSOR INJURIES WHATSOEVER ARISING FROM SWIMMING OR SCUBA DIVING OR FOR ANY OTHER REASON BEYOND THE CONTROL OF BOS, AND YOU UNDERSTAND, AGREE WITH, AND AGREE TO BE LEGALLY BOUND BY THE TERMS OF THE RELEASE AND WAIVER OF LIABILITY SET FORTH HEREIN.
ACKNOWLEDGMENT OF RISK: I understand and acknowledge that my travel in connection with and participation in the Dive Travel Package arranged at my request by BOS may involve risk and potential exposure to Injury and possibly death. I specifically acknowledge and recognize the potential for injury and death which can result from swimming and scuba diving, including the malfunctions of diving equipment, the natural environment, animal or sea life, currents and other changing conditions, decompression sickness, embolism or other hyperbaric injuries. I realize and acknowledge that diving with compressed air, Nitrox, Trimix, or other gases involves certain risks and requires specific training. I certify that I have been properly trained for the breathing mixture(s) I will use and understand the risks involved. I also realize and acknowledge that risk and dangers may be caused by the negligence of the owners, directors, employees, contractors, subcontractors, officers or agents of BOS, or the negligence or participation of others, contractors and/or subcontractors to BOS. I also recognize and acknowledge that the risk and dangers may arise from foreseeable and unforeseeable causes, including weather and other acta od nature. I fully understand and acknowledge that the aforementioned risks, dangers, and hazards are potential in connection with recreational activities which may take place during my trip.
EXPRESS ASSUMPTION OF RISK AND RESPONSIBILITY: In recognition of the inherent risk of the travels and related activities in which l am intending to engage, I confirm that I am physically and mentally capable of participating in the activity, and that alone am responsible for my own activities while engaged in SCUBA diving. I am willingly and knowingly electing to participate in this trip in spite of the potential risk of danger, and I willingly and voluntarily assume full responsibility for any injury, loss or damage suffered by me or caused by me, weather caused in whole or in part by the negligence of the owners, directors, agents, officers, employees, contractors or subcontractors of BOS.
RELEASE OF LIABILITY: In consideration of the services and arrangements provided by BOS, I, for myself and for my heirs, personal representatives or assigns, do hereby release, waive, discharge, hold harmless and agree to indemnify 805, and its owners, officers, directors, agents, contractors, subcontractors and employees from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, loss of services, lost profits, consequential, exemplary, indirect or punitive damages or otherwise, which may arise out of, or occur during my travel in connection with the scheduled Dive Travel Package and any activities in conjunction therewith. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR CONDUCT OF THE OWNERS, DIRETORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS OF BOS.
EXPRESS WAIVER OF ANY RIGHT TO SEEK CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES: Regardless of the situation or circumstances giving rise to a claim, I waive any right to seek consequential, punitive or exemplary damages against BOS, its owners, officers, directors, agents, contractors, subcontractors and employees, for any reason whatsoever.
RELEASE FOR MEDIA RECORDING
I, the undersigned, do hereby consent and agree that Blue Octopus Scuba, its
Employees, or agents have the right to take photographs, videos, or digital recordings of me beginning on date listed below until revoked in writing by the undersigned.
And to use these in any and all media, now or hereafter known, exclusively for the purpose of event promotion. I further consent that my name and identity may be revealed therein or by descriptive text or commentary.
I do hereby release to Blue Octopus Scuba, its agents and employees all right to Exhibit this work in print and electronic form publicly and to market and sell Copies. I waive any rights, claims, or interest I may have to control the use of my Identity or likeness in whatever media used.
I understand that there will be no financial or other remuneration for recording me, either for initial or subsequent transmission or playback.
I also understand that Blue Octopus Scuba, is not responsible for any expense or liability incurred as a result of my participation in this recording, including Medical expenses due to any sickness or injury incurred as a result.
I represent that I am at least 18 years of age, have read and understand the foregoing statement, and am competent to execute this agreement.
Dated: August 7, 2020