STANDARD CONTRACT BETWEEN MEMBER AND INSTRUCTOR
BY PROCEEDING WITH PURCHASING THIS INSTRUCTOR’S CONTENT, YOU AGREE TO THESE TERMS:
2. When does this agreement apply?: Each time a Member/Instructor Transaction is initiated on Ocean, this Standard Contract between Member and Instructor will apply to the exclusion of any other terms which the Member or Instructor may propose, and this Standard Contract between Member and Instructor will legally bind the Member and Instructor participating in the Member/Instructor Transaction.
3. Parties: The only parties to this agreement are the Member and Instructor participating in the Member/Instructor Transaction. Neither Ocean Athletics, Inc. nor any of its subsidiary companies is a party to this agreement and neither Ocean Athletics, Inc. nor any of its subsidiary companies grants any rights in respect of, nor participates in, any Member/Instructor Transaction, except that Ocean Athletics, Inc. or any of its subsidiary companies or designated third parties may act as a payment intermediary in accordance with the Instructor’s and Member’s instructions set out in section 5 of this agreement.
4. Interpretation: In this agreement, defined terms have the following meanings:
a. “Ocean” means the website accessed via the URL app.athletesocean.com or via any web browser;
b. “Instructor” means a User who has set up their Ocean account as an Instructor account to post Content on Ocean to be viewed or purchased by other Users;
c. “Member” means a User who an Instructor and is able to view the Instructor’s Content;
d. “Virtual Private Lessons” means a scheduling and live video call system that allows Members to book virtual, private coaching sessions with Instructors;
e. “Instructional Course(s)” means recorded video courses that are made available for purchase on the Platform and are not included in Subscription Groups;
f. “Subscription Groups” means a private group, with or without a subscription fee, that Members must request access to join;
g. “Referring User” means a User who participates in the Ocean Referral Program;
h. “Member/Instructor Transaction” means any transaction between a Member and an Instructor on Ocean by which access is granted to the Instructor’s Content, including in any of the following ways: (i) a Subscription to a Subscription Group, (ii) payments made by a Member to view an Instructor’s pay-per-view Content (pay-per-view media and pay-per-view live stream), (iii) Instructional Courses, (iv) any other payments made by a Member on an Instructor’s account not specifically listed above;
i. “Member Payment” means any and all payments made by a Member in respect of any Member/Instructor Transaction;
k. “Subscription” means a Member’s subscription to a Instructor’s Subscription Group;
l. “Tax” shall include all forms of tax and statutory, governmental, state, federal, provincial, local government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of the US or any other jurisdiction.
5. Pricing and Payment: Pricing and payment: By entering into a Member/Instructor Transaction, the Member agrees to pay the Member Payment applicable to the relevant Member/Instructor Transaction in accordance with the pricing published in the Instructor’s account. The Member and Instructor participating in the Member/Instructor Transaction authorize Ocean Athletics, Inc. or any of its subsidiaries to act as a payment intermediary and to collect, hold, and process the Member Payment, to deduct the Ocean Fee and any other fees and to pay out the sums due to Instructors and (if applicable) Referring Users, as described in the Ocean Terms of Service.
6. License of Content: Once the Member has made the Member Payment for a Member/Instructor Transaction, the Instructor grants to the Member a limited license to access the applicable Content of that Instructor to which the Member/Instructor Transaction relates (the “Relevant Content”). This license is non-transferable, non-sublicensable and non-exclusive, and permits the Member to access and view the Relevant Content on the Member’s personal device and via a normal web browser (and to make a temporary copy of such Content only to the extent that this is an incidental and technical process forming part of the Member’s accessing the Content (i.e. caching)), in accordance with the Ocean Acceptable Use Policy.
7. Ownership of Content: The Member participating in the Member/Instructor Transaction acknowledges and agrees that the license of the Relevant Content provided in section 6 of this agreement does not result in the Member acquiring any rights in or to the Relevant Content, which rights shall be retained by the Instructor of the Relevant Content.
8. Expiry of License: The license granted to a Member in relation to the Relevant Content will expire automatically without notice in the following circumstances:
a. if the Member Payment related to the Member/Instructor Transaction was unsuccessful, or is charged back or reversed for any reason;
b. in respect of pay-per-view Content, once the Member has completed viewing the Content;
d. if the Member’s User account is suspended or terminated for any reason;
e. if the Member acts in breach of the Ocean Acceptable Use Policy (whether in relation to the Relevant Content or at all);
f. if the Content is removed from the Instructor’s account;
g. if the Member closes their Ocean User account.
9. Cancellations and Refunds: In respect of every Member/Instructor Transaction:
a. Refunds will not be issued for Instructional Courses or Subscriptions;
a.i. Due to the nature of online Content, the general policy is no refunds, though there may be some exceptions where refunds are granted in the sole discretion of the Instructor involved in the specific Member/Instructor Transaction.
a.ii. The Member acknowledges that the Member/Instructor Transaction will result in a supply of the relevant Content to the Member within a reasonable time period from the date when the Member/Instructor Transaction is entered into, and the Member gives his or her express consent to this and confirms to the Instructor that he or she is aware that any statutory right to cancel the Member/Instructor Transaction which the Member has under any applicable law will therefore be lost.
b. This agreement does not affect any statutory right to receive a refund from the Instructor which a Member may have under any applicable law.
c. Additional Cancellation and Refund Terms for Virtual Private Lessons:
c.i. Deposits: A Member/Instructor Transactions for a Virtual Private Lesson requires the Member to make a deposit to hold the timeslot with the Instructor.
c.ii.1. If the Member cancels a Virtual Private Lesson at least 4 (four) hours prior to the beginning of the scheduled start time for the timeslot, the Member will be refunded the deposit.
c.ii.2. If the Member cancels a Virtual Private Lesson within 4 (four) hours of the scheduled start time for the timeslot, the Instructor is entitled to retain the deposit referenced in Section 10(a).
c.ii.3. If the Instructor cancels the Virtual Private Lesson at anytime prior to the beginning of the scheduled start time for the timeslot, the Member will be refunded the deposit.
c.iii. Failure to Attend Virtual Private Meeting
c.iii.1. If an Instructor fails to attend a Virtual Private Lesson, the Member will be refunded the entirety of the Member Payment associated with the relevant Member/Instructor Transaction.
c.iii.2. If a Member fails to attend a Virtual Private Lesson (and does not follow the cancellation procedures as outlined above), the Instructor is entitled to retain the entirety of the Member Payment.
c.iv. Technological or Other Failure: If a scheduled Booking fails due to a technological failure or other failure associated with the Platform, neither the Instructor nor the Member will be at fault and the entirety of the Member Payment will be refunded to the Member.
10. Obligations between Instructor and Member: In respect of every Member/Instructor Transaction:
a. The Member and the Instructor participating in the Member/Instructor Transaction agree to comply at all times with the Ocean Acceptable Use Policy in relation to the Relevant Content, including when accessing, viewing and interacting with it.
b. The Member participating in the Member/Instructor Transaction agrees to make the Member Payment required to access, view or interact with the Relevant Content, and agrees not to initiate a chargeback other than if the Member.
c. The Instructor participating in the Member/Instructor Transaction agrees to make the Relevant Content available to the Member once the Member has made the Member Payment applicable to the Relevant Content.
d. The Instructor warrants (makes a legally enforceable promise) that it possesses all necessary rights in and to the Relevant Content sufficient to license it to the Member in the territory in which the Member will be accessing the Relevant Content, and has obtained any and all permissions and consents needed to grant the license in section 6 of this agreement.
e. The Instructor is solely responsible for creating and uploading the Relevant Content. The Instructor provides no guarantees that it will continue to create and upload Relevant Content on an ongoing basis.
f. Unless there has been negligence or other breach of duty by the Instructor, the accessing by the Member of the Instructor’s Content is entirely at the Member’s own risk.
11. No Guarantees: The Member participating in the Member/Instructor Transaction acknowledges that Instructors may add and remove Content at any time from their Instructor account, and that Instructors have the discretion to decide what sort of Content to make available on their account. In addition, the Member participating in the Member/Instructor Transaction acknowledges that there may be circumstances where it is not possible for the Member to access to Relevant Content to be provided under the Member/Instructor Transaction, including:
a. if the Instructor’s account is suspended or deleted;
b. if the Member’s account is suspended or deleted;
c. if the availability of all or any part of Ocean site is suspended or inaccessible; or
d. if the Instructor is unable to create or upload Relevant Content in the future.
11. Terms relating to disputes:
a. This agreement is governed by Delaware law and Delaware law will apply to any claim that arises out of or relates to this agreement. The Member will also be able to rely on mandatory rules of the law of the country where he or she lives.
b. Where claims can be brought:
b.i. If this agreement is with a Member resident in the United States, any claim under this agreement may be brought in the courts of Delaware.
b.ii. If this agreement is with a Member resident outside of the United States any claim under this agreement must be brought in the courts of Delaware, unless the Member and Instructor otherwise agree.