1. Consideration. For and in consideration of AltosPacific, LLC dba ‘Pacific Open Water Swim Co.’ (hereafter “AltosPacific”) allowing me, the Registrant, to participate in any AltosPacific commercial or recreational activity (“Event”), including but not limited to maritime passage and activities related to the maritime passage; I, for myself, and on behalf of my spouse, children, heirs and next of kin, and any legal and personal representatives, executors, administrators, successors, and assigns, hereby agree to and make the following contractual representations pursuant to this Participation Agreement (“Agreement”);
2. Entire Agreement. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement between me and AltosPacific and supersedes all other agreements, oral, implied or written. Any alteration to any term of this Agreement must be in writing and signed by AltosPacific. Should any provision of this Agreement be unenforceable, contrary to or invalid by virtue of the law of the jurisdiction in which this Agreement is sought to be enforced or be so held by a court of competent jurisdiction, such provision(s) shall be deemed to be severed from the Agreement and of no effect and all remaining provisions herein shall be in full force and effect and constitute the Agreement.
3. Condition of Health. I hereby certify and represent that:
(i) I am in excellent health and in proper physical condition to participate in AltosPacific Events;
(ii) I am sufficiently acclimated, experienced, and advised to safely participate in AltosPacific Events including those wherein water temperatures can vary between 48°F and 85°F and air temperatures can vary between 30ºF and 105ºF;
(iii) Prior to my registration, I have advised AltosPacific of all medical conditions and impairments that can affect my ability safely participate in AltosPacific Events (such as hearing or vision loss, limited mobility, cognitive impairments, etc.) and AltosPacific has agreed to my participation in writing;
(iv) I have not been advised of any medical conditions that would impair my ability to safely participate in AltosPacific Events;
(v) I am sufficiently acclimated, experienced, and advised to safely participate in Events and the locale(s) where such Event occurs; and
(vi) I agree that it is my sole responsibility to determine whether I am sufficiently experienced, fit, and healthy enough to participate in AltosPacific Events in all maritime conditions and environs.
4. Acknowledgment of Risk. I acknowledge that there are inherent risks associated with maritime passage, the Events offered by AltosPacific and the sport of swimming. I further understand that my participation involves risks and dangers, which include, without limitation, the potential for serious bodily injury, sickness and disease, permanent disability, paralysis and death (from drowning or other causes).
There is also risk of the following occurrences: loss of or damage to personal property and equipment; exposure to extreme conditions and circumstances; accidents involving other participants, event staff, volunteers or spectators; contact or collision with natural or manmade objects; dangers arising from adverse weather conditions; imperfect water conditions; water and surface hazards; facility issues; equipment failure; inadequate safety measures; participants of varying skill levels; situations beyond the immediate control of the Event organizers; and other undefined, not readily foreseeable and presently unknown risks and dangers (“Risks”).
I understand that these Risks may be caused in whole or in part by my own actions or inactions, the actions or inactions of others participating in Events, or the negligent acts or omissions of the Released Parties defined below, and I hereby expressly assume all such Risks and responsibility for any damages, liabilities, losses or expenses that I incur as a result of my participation in any Event.
5. Additional Risks: I ALSO HEREBY AFFIRM THAT I AM AWARE THAT IN ADDITION TO THE RISKS IDENTIFIED IN SECTION 4, OPEN WATER SWIMMING INVOLVES ADDITIONAL, ELEVATED RISKS WHICH MAY RESULT IN SERIOUS INJURY OR DEATH.
I UNDERSTAND THAT:
i) Open water swimmers have been injured, killed, or both in all types of waters and conditions by a multitude of causes;
ii) Currents, wind, swells, and waves, often more powerful than the strongest swimmer, are unpredictable and have swept swimmers off course in freshwater lakes, rivers, bays, and the ocean causing injury or drowning;
iii) Swimmers have been struck, injured, and killed by power, sail, and oar driven vessels;
iv) Swimmers have been injured by objects in the water, both floating and fixed;
v) Cold waters where open water swimming events occur may cause thermal shock, swimming failure, post-rescue collapse, physiological damage, heart attacks, hypothermia, or other medical emergencies;
vi) Hypothermia can affect my thinking, reasoning, and can result in exhaustion, loss of consciousness, coma, or death;
vii) Sea life and wildlife, including but not limited to whales, sharks, seals, sea lions, fish, invertebrates, land animals, and others pose a significant threat to open water swimmers and have caused illness, injury, paralysis, and death;
viii) There may be health hazards associated with poor water quality and swimmers have been sickened by pollution, contaminants, and microorganisms, including bacteria and viruses;
ix) Open water swimming may occur at remote sites that are isolated by time and distance from medical facilities and first-responders who can render first aid. Nevertheless, I still choose to participate in open water swimming activities despite the absence of medical facilities and first responders;
x) The hazards of open water swimming include dangers occurring during travel or passage aboard vessels, herein referred to as “Boat” or “Boats”, including, but not limited to, slipping or falling while onboard, being cut or struck by a Boat while in the water, injuries occurring while getting on or off a Boat, and other perils of the sea. Your risk of injury could be significant, including the potential for serious injury, permanent paralysis, or death;
xi) There are significant hazards related to being exposed to the elements of nature and force majeure events;
xii) The risks identified herein are only some of the hazards and dangers associated with swimming and there may be others;
xiii) It is my responsibility to communicate my want or need of assistance to other Event participants, the crew, or Captain of my escort boat by waving both arms above the water and yelling loudly; and
xiv) While particular rules, equipment, preparation, physical conditioning, observers, oversight, and personal discipline may reduce the risks above, the risk of serious injury and death does exist.
6. Vessel Rules and Instructions. I agree to be familiar with General Rules in Paragraph 7, follow the Safety Rules onboard the vessel, and to abide by the instructions of the Captain and crew at all times. I accept sole responsibility for my own conduct and actions while participating in the Event.
7. General Rules for All Events. I agree that master of the vessel (“Captain”) shall have full control and authority over the Event, vessel, vessel crew, observer(s), swimmer(s), swim crew, swim support vessels, and passengers; I shall follow their instruction and direction.
I FURTHER UNDERSTAND AND AGREE THAT:
(i) Events may, either before boarding or at any time thereafter, be called off at any time because the Captain of the vessel perceives that the safety of the those aboard is at risk, (s)he perceives that an Event-related vessel is at risk of loss or damage, or because of any maritime or other necessity;
(ii) AltosPacific reserves the right at any time, without notice or liability for refund, payment or compensation of any kind or credit except as provided herein, to cancel any Event, change or postpone the date or time of departure or arrival, change the boarding location or ending point, shorten the Event or substitute an Event-related vessel or change or substitute any component of the Event;
(iii) If AltosPacific cancels an entire Event before boarding, I will be offered a Credit Voucher equal to the actual monetary value received by AltosPacific (Event Fee less any PayPal or other transaction fees) that may be used for any future AltosPacific Event; and
(iv) If the Passage is terminated early due to an unresolved mechanical failure, that I am also entitled, at the option of AltosPacific, to transportation to the boat’s scheduled place of disembarkation.
(v) During an event, AltosPacific reserves the right at any time, without notice or liability for refund, payment or compensation of any kind or credit except as provided herein to reposition or remove a swimmer from the water for any reason including, but not limited to, their relative speed, ability, or safety and I agree that I shall not question or dispute repositioning or removal during an event.
8. GENERAL RELEASE. I HEREBY RELEASE, WAIVE, AND FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE FOLLOWING PARTIES: ALTOS PACIFIC LLC, THEIR PARTNERS, MEMBERS, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND VOLUNTEERS, INCLUDING, BUT NOT LIMITED TO, EVENT SANCTIONING ORGANIZATIONS; EVENT DIRECTORS; EVENT ORGANIZERS AND PROMOTERS, SPONSORS AND ADVERTISERS, AND EVENT HOSTS; PROPERTY OWNERS OR OPERATORS HOSTING THE EVENTS; LAW ENFORCEMENT AGENCIES AND OTHER PUBLIC ENTITIES PROVIDING SUPPORT FOR THE EVENTS; AND EACH OF THEIR RESPECTIVE PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, OWNERS, OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, MEMBERS, AGENTS, EMPLOYEES, AND VOLUNTEERS (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”), WITH RESPECT TO ANY LIABILITY, CLAIM(S), DEMAND(S), CAUSE(S) OF ACTION, DAMAGE(S), LOSS OR EXPENSE (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ FEES) OF ANY KIND OR NATURE (“LIABILITY”) WHICH MAY ARISE OUT OF, RESULT FROM, OR RELATE IN ANY WAY TO MY PARTICIPATION IN THE EVENTS, INCLUDING CLAIMS FOR LIABILITY CAUSED IN WHOLE OR IN PART BY THE NEGLIGENT ACTS OR OMISSIONS OF THE RELEASED PARTIES.
9. COVENANT NOT TO SUE. A “COVENANT NOT TO SUE” IS A LEGAL TERM WHICH MEANS YOU PROMISE NOT TO FILE A LAWSUIT IN COURT. IT IS DIFFERENT FROM THE GENERAL RELEASE OF CLAIMS CONTAINED IN PARAGRAPH 8 ABOVE. BESIDES WAIVING AND RELEASING THE CLAIMS COVERED BY PARAGRAPH 8 ABOVE, YOU REPRESENT AND WARRANT THAT YOU HAVE NOT FILED, AND AGREE THAT YOU WILL NOT FILE, OR CAUSE TO BE FILED, ANY JUDICIAL COMPLAINT OR LAWSUIT INVOLVING ANY CLAIMS YOU HAVE RELEASED IN PARAGRAPH 8, AND YOU AGREE TO WITHDRAW ANY JUDICIAL COMPLAINTS OR LAWSUITS YOU HAVE FILED, OR THAT WERE FILED ON YOUR BEHALF, PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. YOU AGREE AND ACKNOWLEDGE THAT IF YOU SUE ALTOSPACIFIC OR ANY OF THE RELEASED PARTIES IN VIOLATION OF THIS AGREEMENT, THEN YOU SHALL PAY ALL LEGAL EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, INCURRED BY ANY RELEASED PARTY IN DEFENDING AGAINST YOUR SUIT.
10. Released Parties Indemnity. I further agree that if despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I will indemnify, defend and hold harmless each of the Released Parties from any such Liabilities which any may be incurred as the result of such claim.
11. Governing Law. I agree that, except as otherwise expressly provided herein, any and all disputes whatsoever arising out or relating to this Agreement or my participation in an Event, as well as the interpretation, applicability, and enforcement of this Agreement shall be governed exclusively by the general maritime law of the United States, without regard to choice of law rules, which replaces, supersedes and preempts any provision of law of any state or nation to the contrary.
12. Use of Likeness. AltosPacific has the right to use video and other visual/audio portrayals of you or your likeness taken during your Event in any medium of any nature whatsoever for any purpose, including advertising or promoting the services of AltosPacific without any compensation being paid to you. Any such portrayal or likeness shall be the exclusive property of AltosPacific.
13. Cancellation and Modification Policies. In all cases, funds received by AltosPacific for Events and any additional services or premiums are NON-REFUNDABLE. Furthermore, Event registrations are NON-TRANSFERABLE unless the ‘Event Modification Premium’ is included and purchased at the time of registration and you Cancel your Event at least 12-hours prior to the meeting time.
To modify or cancel your Event registration, you agree that you will notify us in writing at the following address: PO Box 566 Mill Valley, CA 94942); or cancel via the following website link: www.PacificSwim.co/cancel.
If canceling via the website link, the emailed Cancelation Confirmation is the only acceptable proof of the date and time of cancellation. If there is an error in canceling online or the service is unavailable, you are required to mail your cancelation via the USPS. If mailing your cancellation, you must request and save a USPS Certificate of Mailing as proof of mailing/notification. Important: emailed or telephoned notifications of cancellation are not a valid form of cancelation and will be ignored.
IF CANCELATIONS OR MODIFICATIONS OF YOUR EVENT BOOKING OCCUR LESS THAN 12 HOURS BEFORE YOUR SCHEDULED EVENT, YOUR REGISTRATION IS NON-TRANSFERABLE AND NON-REFUNDABLE UNDER ALL CIRCUMSTANCES.
14. Complete Understanding. I hereby warrant that I am of legal age and competent to enter into this Agreement, that I have read this Agreement carefully, understand its terms and conditions, acknowledge that I will be giving up substantial legal rights by signing it (including the rights of my spouse, children, heirs and next of kin, and any legal and personal representatives, executors, administrators, successors, and assigns), acknowledge that I have signed this Agreement without any inducement, assurance, or guarantee, and intend for my signature to serve as confirmation of my complete and unconditional acceptance of the terms, conditions and provisions of this Agreement.