TERMS AND CONDITIONS
1. Lessons
A. Start Time. Lessons begin at the scheduled start time, regardless of whether to Student is late. Students are encouraged to arrive 15 to 20 minutes prior to the scheduled start time in order to be at the lesson location, dressed in a swimsuit/swim trunks and swim cap, and ready to begin at the scheduled time. Lessons are automatically canceled and forfeited if a Student is more than 5 minutes late.
B. Adult Present. Any Student under 18 must be accompanied by a parent or guardian for the duration of the Lesson. This is not a “drop off” activity. BPWS, Outdoor Afro, and the office of Senator Leroy Comrie reserves the right to remove a Student from a lesson if there is no adult present; the lesson will still be charged against the Student’s package in such instances.
C. Timing. Lesson time may be varied based upon a Student’s physical abilities, attention span and willingness to participate in the Lesson.
D. Obey Pool Rules. Students, as well as adult spectators, must comply with any rules and regulations of the venue. Failure to abide by the rules will result in the cancellation of the Student’s Lesson, without refund. BPWS does not inspect or maintain the facilities at which Lessons take place, used in any Lesson, and is not responsible for the conduct of any student in any Lesson.
E. Instructors. BPWS Instructors are conducted by certified American Red Cross and/or swim affiliated swim professionals. Students are assigned to Instructors based on skill level and availability. BPWS reserves the right to substitute Instructors as necessary.
F. Strenuous Activity. Student and Parent/Guardian is aware that the Lesson may involve strenuous physical activity on the part of the Student. Students are encouraged to refrain from eating one hour prior to the start of each lesson.
2. Cancellations / Refund
A. Cancellation by Student. A Student may cancel a Lesson by providing 5-hour notice (“Notice”). If proper Notice is provided, a Student may reschedule a maximum of one (1) Lesson per swim lesson package. The rescheduled Lesson must take place during the timeframe of the swim lesson package, provided Instructor availability. Any cancellation provided with less than 5-hour notice will be charged against a Student’s package and is forfeited.
B. Cancellation by BPWS. In the rare instance that BPWS must cancel a Lesson for other than Student behavior (e.g., Instructor illness, pool conditions, inclement weather), BPWS will reschedule Lessons that have been cancelled within the next thirty (30) days.
C. Cancellation by BPWS due to Student Behavior. If BPWS cancels a Lesson due to Student behavior (e.g., disorderly conduct, inappropriate behavior, creating risk of harm to Student, Instructor or other students), the Lesson is forfeited. Inappropriate behavior includes, but is not limited to, biting, scratching, spitting, excessive crying, screaming, and other disruptive behavior.
4. Photo Release
By entering into this Agreement, Student, or Student’s Parent or Guardian on behalf of Student, grants BPWS, Outdoor Afro, and the Office of Senator Leroy Comrie the irrevocable right and permission to photograph and/or record Student in connection with Lessons, and to use the photograph and/or recording for any and all purposes, including advertising and promotional purposes, in any manner and in all media now or hereafter known, in perpetuity throughout the world, without restriction as to alteration. Student, or Student’s Parent or Guardian on behalf of Student, waives any right to inspect or approve the use of the photograph or recording, and acknowledges and agrees that the rights granted in this Photo Release are without payment or compensation of any kind.
5. Assumption of Risk
Student, or Student’s Parent or Guardian on behalf of Student, acknowledges and agrees that there are risks inherent in sports activities such as swimming Lessons provided by BPWS. BPWS does not guarantee that a Student’s participation in Lessons will render a Student water-safe. Student’s participation includes risks and dangers, including but not limited to, potential serious bodily injury, sickness and disease, paralysis and death (from drowning or other causes); loss of or damage to personal property and equipment; exposure to extreme conditions and circumstances; accidents involving other students, Instructors, volunteers or spectators; contact or collision with natural or manmade objects; dangers arising from inclement weather conditions; imperfect water conditions; water and surface hazards; facility issues; equipment failure; inadequate safety measures; students of varying skill levels; situations beyond the immediate control of BPWS; and other undefined, not readily foreseeable and presently unknown risks and dangers (collectively, “Risks”). Student, or Student’s Parent or Guardian on behalf of Student, understands that these Risks may be caused in whole or in part by Student’s own actions or inactions, the actions or inactions of others participating in the Lessons, or the negligent acts or omissions of the Released Parties defined below, and Student, or Student’s Parent or Guardian on behalf of Student, hereby expressly assumes all such Risks and responsibility for any damages, liabilities, losses or expenses that Student incurs as a result of Student’s participation in Lessons.
6. COVID-19 and other Illnesses
Student, or Student’s Parent or Guardian on behalf of Student, acknowledges the contagious nature of COVID-19 and Student voluntarily assumes the risk that Student may be exposed to or infected by COVID-19, or other viral or bacterial infection, while participating in Lessons, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. Student, or Student’s Parent or Guardian on behalf of Student, agrees that if Student has a fever, cough, feels short of breath, has any other symptoms, has knowingly been exposed to a communicable disease such as COVID-19 or has traveled to or from a highly impacted area, Student will not attend a scheduled Lesson until symptoms have subsided.
7. Medical Certification and Consent
Student, or Student’s Parent or Guardian on behalf of Student, certifies that Student is in good physical health and has no medical condition that would prevent Student’s full and active participation in the Lessons.
In the event of any medical emergency while participating in Lessons, BPWS is given the full authority to take action to protect the health and safety of the Student. Such treatment may include, but not be limited to, placing the Student under the care of a paramedic, emergency medical technician, nurse practitioner, doctor, or in a hospital for medical examination or treatment. Any expenses required for the Student’s health and safety will be paid by the Student or the Student’s Parent or Guardian.
Student’s Medical Provider: ____________________________________________________
Medical Provider Phone #: ____________________________________________________
Student’s Medical Insurance Carrier: _______________________________________________
Any known allergies: ____________________________________________________
Any daily medications taken: ____________________________________________________
8. Release, Waives, Covenant Not To Sue and Indemnification
A. Student, or Student’s Parent or Guardian on Student’s behalf, acknowledges and agrees that Student’s participation in Lessons is voluntary, and Student assumes all risks, consequences, and potential liability for participation in Lessons.
B. STUDENT, OR STUDENT’S PARENT OR GUARDIAN ON STUDENT’S BEHALF, HEREBY RELEASES, WAIVES AND FOREVER DISCHARGES BPWS, ITS OWNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, INSTRUCTORS, CONTRACTORS, AGENTS, SPONSORS, VOLUNTEERS, LIFEGUARDS, HOST SITE OWNERS, AND THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTIONS WHATSOEVER ARISING OUT OF OR RELATED TO STUDENT’S PARTICIPATION IN LESSONS, INCLUDING ANY LOSS, DAMAGE, PERSONAL INJURY, INCLUDING ILLNESS OR DEATH, PROPERTY DAMAGE OR LOSS, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES, TO THE FULLEST EXTENT PERMITTED BY LAW.
C. STUDENT, OR STUDENT’S PARENT OR GUARDIAN ON STUDENT’S BEHALF, VOLUNTARILY ASSUMES FULL RESPONSIBILITY FOR ANY AND ALL RISKS, LOSSES, PROPERTY DAMAGE OR PERSONAL INJURY THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE LESSONS.
D. Student, or Student’s Parent or Guardian on Student’s behalf, agrees to defend, indemnify and hold BPWS and the Released Parties harmless from any and all loss, liability, damages, judgments, suits, claims, costs, attorneys’ fees, or expenses that Student may incur arising out or related to Student’s participation in Lessons.
E. This Release, Waiver, and Covenant not to Sue is entered into voluntarily without any inducement.
9. General Legal Terms
A. Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws doctrine.
B. Dispute Resolution. The parties agree that they will make a good faith attempt to resolve any differences through direct negotiations for a period of thirty (30) days after notice of a dispute (“Dispute”). If the Dispute is not resolved in that time period, the parties agree to proceed to non-binding mediation conducted by the American Arbitration Association in accordance with the commercial dispute rules and procedures then in effect. If mediation is unsuccessful after a period of sixty (60) days to resolve the Dispute, the parties agree to use binding arbitration conducted by the American Arbitration Association in accordance with the commercial dispute rules and procedures then in effect.
C. Jury Waiver. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
D. Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
E. Entire Agreement. This Agreement represents a single agreement, as well as the entire agreement with respect to the subject matter. This Agreement supersedes any prior agreement between the parties, whether written or oral, with respect to the subject matter, and may be modified or amended only by a writing signed by the party to be charged.
F. Material Inducement. Student, or Student’s Parent or Guardian on behalf of Student, acknowledges and agrees that Sections 4, 5 and 8 constitute a material inducement for BPWS to enter into this Agreement and without such BPWS would not enter into the Agreement.