Date Published: 1 Sept 2024
Q1: What am I agreeing to when I sign this document?
- Answer: By signing this document, you are entering into a legally binding agreement with Pacific Swim Co. You acknowledge that participating in their services, which include maritime activities such as tours, cruises, and open water swimming, carries inherent risks. You agree to assume full responsibility for these risks and to waive certain rights to hold Pacific Swim Co. liable for any injuries or damages, except in cases of gross negligence or intentional harm. This agreement also outlines your responsibilities, insurance requirements, and the process for resolving any disputes.
Q2: What risks are involved in these activities?
- Answer: The activities offered by Pacific Swim Co., particularly open water swimming, involve significant risks. These risks include, but are not limited to, unpredictable water conditions (such as strong currents, waves, and tides), encounters with wildlife, potential collisions with vessels, physical injuries (including dehydration, hypothermia, and medical emergencies), and the possibility of being far from immediate medical help. You are accepting these risks by participating and must be aware that these dangers can arise despite all safety measures in place.
Q3: Do I need my own insurance?
- Answer: Yes, all participants are required to have their own personal insurance coverage for the duration of their participation. This includes medical insurance and, if applicable, specific maritime insurance that covers personal injuries or accidents. Pacific Swim Co. maintains its own insurance policies, but these are secondary to your personal insurance and have specific limitations. You agree not to make any claims under Pacific Swim Co.’s insurance policies without their prior written consent.
Q4: Can I sue Pacific Swim Co. if something goes wrong?
- Answer: By signing this agreement, you are waiving your right to sue Pacific Swim Co. for most injuries or damages that may occur during the activities. However, this waiver does not apply in cases of gross negligence or intentional misconduct. If you believe such negligence has occurred, you retain the right to seek legal recourse. For all other disputes, you agree to resolve them through binding arbitration, meaning you cannot take the matter to court or have a jury trial.
Q5: What does ‘self-rescue’ mean?
- Answer: Self-rescue refers to the expectation that you must be prepared to handle emergencies on your own while participating in open water swimming activities. The crew on the escort vessel will have limited ability to assist you in the water. They can provide basic safety equipment, such as a throwable flotation device. Still, you must be capable of managing your own safety and making decisions to protect yourself in the water.
Q6: What should I do if I have health concerns?
- Answer: If you are over the age of 35 or have any pre-existing health conditions, it is strongly advised that you consult with a healthcare professional before participating in these activities. Your doctor should be informed about the nature of the activities, the environmental conditions (such as cold water temperatures), and the physical demands involved. It is your responsibility to ensure that you are medically fit to participate.
Q7: What happens if I don’t agree to these terms?
- Answer: You have a 72-hour review period after registering and paying to review these terms. If you do not agree with the terms, you can request a full refund within this period, minus any costs for services or products that have already been provided. If you do not request a refund within this window or if you sign the agreement, the terms become binding, and you will not be able to cancel without penalty.
Q8: What is the role of the ‘Waiver of Subrogation’ clause?
- Answer: The Waiver of Subrogation clause means that you agree to waive any right your insurance company might have to pursue a claim against Pacific Swim Co.’s insurance policies. This applies to any claims arising from your participation, including injuries or property damage. Essentially, it prevents your insurer from seeking compensation from Pacific Swim Co.’s insurer after covering your claim.
Q9: How are disputes resolved under this agreement?
- Answer: Any disputes, claims, or controversies related to unauthorized claims or insurance coverage must be resolved through binding arbitration in San Francisco, California, under the rules of the Maritime Arbitration Association of the United States. If you initiate an unauthorized claim, you will be responsible for all arbitration costs, including Pacific Swim Co.’s legal fees. This arbitration process replaces the traditional court system and jury trial for resolving disputes.
Q10: What does the indemnification clause mean for me?
- Answer: The indemnification clause means that you agree to protect and cover Pacific Swim Co. against any legal claims, actions, or damages that may arise from your participation. If someone else sues Pacific Swim Co. because of something that happened to you during the activities, you will be responsible for covering Pacific Swim Co.’s legal costs and any damages awarded. This includes claims arising from your own negligence or failure to follow safety instructions.
Q11: What does ‘Acknowledgment and Agreement Not to Sue’ mean?
- Answer: By signing the ‘Acknowledgment and Agreement Not to Sue,’ you agree not to pursue legal action against Pacific Swim Co. or its associated parties for most issues or accidents that may occur, even if they result from minor faults or negligence. This covenant is designed to protect Pacific Swim Co. from lawsuits. However, you still have the right to seek legal recourse in cases of gross negligence or intentional harm. If you breach this agreement by suing, Pacific Swim Co. can use this covenant to dismiss your claims.
Q12: What are my obligations regarding my health and fitness to participate?
- Answer: You are responsible for certifying that you are in good health and physically fit to participate in the activities provided by Pacific Swim Co. This includes acknowledging that you have no known medical conditions that would impair your ability to safely engage in these activities. You are also encouraged to undergo a medical evaluation, particularly if you are over 35 or have pre-existing health concerns, to ensure that you are prepared for the physical demands of open water swimming.
Q13: What equipment should I consider using for safety?
- Answer: For enhanced safety during open water swimming, it is recommended that you use high-visibility swim caps, tow floats, wetsuits, and vision-corrected goggles if needed. High-visibility swim caps and tow floats make you more noticeable to vessels and rescue teams, while wetsuits provide thermal insulation in cold water. Having backup goggles or vision-corrected goggles is essential to ensure clear sight during your swim.
Q14: What is the ‘Refund Policy for Non-Acceptance of Agreement Terms’?
- Answer: If you decide not to accept the terms of this agreement within 72 hours of registering and paying, you are entitled to a full refund of your registration fees, minus any costs for services or products already provided. After this period or once you sign the agreement, no refunds will be issued for non-acceptance of the terms. This policy only applies to the acceptance of the agreement, and all other cancellations are governed by the Booking Contract.
Q15: What does ‘Periodic Review and Update’ mean?
- Answer: Pacific Swim Co. reserves the right to periodically review and update the terms of this agreement. Any updates will be communicated to you and will apply to all services provided after the update, unless otherwise specified. It is your responsibility to stay informed about any changes to the agreement.
Q16: How does the ‘Severability’ clause protect the agreement?
- Answer: The Severability clause ensures that if any part of this agreement is found to be invalid, illegal, or unenforceable, the remaining provisions will still be in effect. This clause ensures that the agreement remains binding even if one part is challenged or struck down.
Q17: What is the ‘Binding Arbitration Agreement’ and how does it affect me?
- Answer: The Binding Arbitration Agreement means that any disputes or claims you have with Pacific Swim Co. must be resolved through arbitration, not through a lawsuit in court. Arbitration is a private process where a neutral third party, the arbitrator, resolves the dispute. By agreeing to this, you waive your right to a jury trial, and the arbitrator’s decision is final and enforceable in court.
Q18: What is the significance of the ‘Electronic Signatures’ clause?
- Answer: The Electronic Signatures clause allows this agreement to be signed electronically, meaning that electronic signatures are considered legally valid and enforceable, just like handwritten signatures. This makes the process more convenient and efficient for both parties.
This FAQ is designed to provide a simplified understanding of the key points in the agreement. Please review the full document for complete details, and consult with a legal advisor if you have any questions or concerns.