Terms and Conditions
1. DEFINITIONS
1.1 Agreement refers to any contractual relationship established between SMI and the Customer, which is governed by these Terms and Conditions;
1.2 Content means all (digital) content or information, in whole or in part, made available by SMI on the E-learning Platform, through the Course or on its website www.surfingmed.com, including – but not limited to – video’s, images, audio materials, texts, websites, brochures and handouts;
1.3 Course refers to the online Surf Life Support course provided by SMI, in which SMI provides (interactive) information to Customers regarding resuscitation standards and medical care in surfer environments, also referred to as the “SLS Course”;
1.4 Customer means (i) any natural person, not acting in the course of a profession or business (consumer), or (ii) any natural or legal person acting in the course of a profession or business (business user), who obtains access to and participates in the Course, either (a) by entering into an Agreement with SMI, or (b) by receiving access granted by a third party pursuant to an agreement with SMI;
1.5 DCC refers to the Dutch Civil Code;
1.6 E-learning Platform refers to the online learning environment used by SMI to deliver the Course, which is hosted on the website ‘thinkific.com’. It is accessible to Customers upon creating a User Account;
1.7 GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
1.8 Intellectual Property Rights means any and all intellectual property rights, whether disclosed or not, including but not limited to trademark rights, trade names, domain names, design rights, database rights, patent rights, copyrights (including all related exploitation rights), neighbouring rights, know-how, trade secrets and other rights relating to intellectual property or rights of a similar nature, whether or not such rights are capable of registration, as well as any applications for the registration of such rights;
1.9 Party or Parties refers to SMI and the Customer, individually or collectively;
1.10 Personal Data refers to all information relating to an identified or identifiable natural person as defined in article 4 (1) of the GDPR, which the Customer provides when creating their User Account;
1.11 Services refers to all services provided by SMI related to the Course, such as, but not limited to, providing Course information and granting access to the E-learning Platform;
1.12 SMI refers to Stichting Surfing Medicine International, a foundation registered with the Dutch Chamber of Commerce under number 54137330, as well as any entity affiliated with Stichting Surfing Medicine International (whether directly or indirectly) that has declared these general Terms and Conditions applicable to an agreement;
1.13 Terms and Conditions means these terms and conditions for the Course provided by SMI;
1.14 User Account refers to the personal account created by the Customer for the purpose of accessing the E-learning Platform, completing the enrolment process and participating in the Course.
2. APPLICABILITY AND SEVERABILITY
2.1 These Terms and Conditions govern all access to and participation in the Course by Customers. These Terms and Conditions apply to any offer made by SMI relating to the Course, to any purchase of the Course by the Customer and to any Agreement concluded between the Customer and SMI, including future offers and agreements.
2.2 By entering into an Agreement, or accessing or participating in the Course, the Customer accepts the applicability of these general Terms and Conditions. Any other general terms and conditions provided to SMI by the Customer are hereby expressly rejected by SMI.
2.3 SMI shall give the Customer a reasonable opportunity to take notice of these Terms and Conditions in accordance with article 6:234 DCC.
2.4 If any provision of these Terms and Conditions or the Agreement with Customer is held to be invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permitted by law, and the remainder shall continue in full force and effect as if such invalid, illegal, or unenforceable provision had never been included. The Parties shall use their best efforts to replace any such invalid, illegal, or unenforceable provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
3. AMENDMENTS OF THE TERM AND CONDITIONS
3.1 SMI is entitled to unilaterally amend these Terms and Conditions without prior written notice at any time. Parties shall be bound by the amended Terms and Conditions as of the date they enter into effect.
3.2 SMI shall notify the Customer of any amendments at least one (1) month prior to their effective date. In accordance with these Terms and Conditions, SMI shall provide such notice by (i) sending a message to the email address registered in the User Account, or (ii) posting an announcement on the website www.surfingmed.com. Notices sent by e-mail shall take effect on the date the e-mail is sent, and announcements shall take effect upon publication. It is the Customer’s responsibility to ensure that the Personal Data registered in the User Account, such as the email address, is kept up to date.
3.3 In the event of an amendment that is detrimental to the Customer, the Customer shall be entitled to terminate the Agreement in writing prior to the effective date of the amendments, with such termination taking effect on that date.
3.4 Any deviations from, additions to, limitations of and/or amendments to an Agreement and/or these Terms and Conditions requested by the Customer shall only be valid if expressly agreed to in writing by SMI.
3.5 For the purposes of these Terms and Conditions, ‘in writing’ shall also include any form of electronic communication, i.e. e-mail.
4. CONCLUSION OF AGREEMENTS
4.1 The Customer enters into an Agreement with SMI either by purchasing the Course through the online store at surfingmed.thinkific.com/courses/surflifesupport, and/or by creating a User Account. Offers made by SMI, are non-binding. Any validity period or special conditions shall be explicitly stated in the offer. Once the validity period has expired or the special conditions are no longer met, the offer shall be deemed invalid. Upon request, SMI may issue a new offer.
4.2 If SMI’s offer is accepted after the validity period or after the special conditions occur, SMI may elect to accept the acceptance. In that case, an Agreement is only concluded after SMI confirmed the acceptance in writing.
4.3 Any apparent error, omission or mistake in quotations, offers, digital data carriers, websites, leaflets or any other publication regarding prices or Course-related information shall not be binding on SMI.
5. PRICES AND PAYMENT TERMS
5.1 The prices applied by SMI are stated in euros and include VAT, unless explicitly stated otherwise.
5.2 Unless otherwise expressly agreed in writing by SMI, full payment for participation in a Course is required at the time of registration. Specific payment requirements and related terms may be provided to the Customer at the time of registration, on the applicable, Course-specific web page or in the Agreement.
5.3 If payment is reversed or if SMI has not received payment, regardless of the cause, SMI is entitled to suspend its Services until payment has been received.
6. WAIVER OF THE RIGHT OF WITHDRAWAL
6.1 The Customer agrees and acknowledges that they hereby waive their right to cancel the purchase of the Course in accordance with Article 6:230p (g) DCC.
6.2 The Customer agrees and acknowledges that they expressly consented with the waiver of the right to cancel the purchase before purchasing the Course and creating a User Account.
6.3 The Customer agrees and acknowledges that they received confirmation of their purchase and their waiver in accordance with Article 6:230v (7) DCC.
7. EXECUTION OF THE COURSE
7.1 The Customer acknowledges that access to the E-learning Platform is granted only after a User Account has been created. SMI agrees to provide access to the E-learning Platform upon confirmation of the User Account and receipt of payment.
7.2 Account registration and participation on the E-learning Platform and in the Course is restricted to individuals 18 years of age or older, who are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties herein.
7.3 The E-learning Platform may include hyperlinks to websites or applications maintained or controlled by others. SMI is not responsible for and does not routinely screen, approve, review or endorse the contents of use of any of the products or services that may be offered at these websites or applications. If the Customer decides to access linked third-party websites or applications, the Customer does so at their own risk.
7.4 The Course is based on expert knowledge of practicing doctors, paramedics and lifeguard instructors as well as Dutch guidelines. The Course aims to inform the Customer about resuscitation or medical care in surf surroundings. SMI is not an accredited organisation for resuscitation or other medical courses.
7.5 SMI reserves the right to modify the Course’s content, the test queries as well as the point value or weight of any assignment, exam or any other evaluation of progress that may be provided in connection with the Course.
7.6 SMI, in its sole discretion, is entitled to suspend its Services to the Customer and to prematurely terminate the Agreement, if the Customer 1) fails to make payment, 2) breaches the provisions of clause 8, clause 13 and clause 18.1 of these Terms and Conditions, 3) is found to be in violation of the Agreement or any other SMI or Course-specific policy , 4) engages in conduct that is criminal or seriously disrupts SMI’s Services and 5) engages in any other conduct that makes SMI consider such measures necessary.
7.7 In the event SMI exercises its authority as described under clause 7.6, SMI shall not be obliged to provide any form of compensation for damages or refund of any fees paid in connection with the Course and related Services. Any outstanding payment by the Customer remains due.
8. USER ACCOUNTS AND CONDUCT
8.1 By creating a User Account, the Customer hereby represents that they are 18 years of age or older and they have the authority and legal capacity to create the User Account.
8.2 The Customer agrees that they will never divulge or share access or access information to their User Account or their login credentials of their User Account with any third party for any reason, unless SMI has given written permission for such behaviour.
8.3 The Customer agrees that they will create, use, and/or access only one User Account, and that they will not access the E-learning Platform using any User Account or login credentials other than their own, unless SMI has given written permission for such behaviour.
8.4 The Customer warrants that the provided information in the User Account is accurate, current, complete and complies with the obligations under these Terms and Conditions. Customers agree to maintain and update such information to keep it accurate, current and complete.
8.5 If the Customer breaches clauses 8.1 up to and including
8.4 SMI reserves the right to terminate the Agreement, discontinue her Service and consequently, block the User Account.
8.6 The Customer agrees that they notify SMI, in accordance with clauses 18.2 up to and including 18.4, immediately upon becoming aware of, or suspecting, any unauthorised use of their User Account or login credentials.
8.7 SMI is not responsible for any loss or damage arising from unauthorised access to any User Account or login credentials, regardless of its cause.
9. EDUCATIONAL PURPOSE AND WARRANTIES
9.1 The Customer agrees and acknowledges that the information provided during the Course, which may include information concerning medical care and resuscitation standards, is provided for general educational purposes only and that none of it should be used to diagnose or treat persons (in distress).
9.2 The Customer agrees and acknowledges that the Course does not provide a substitute for an accredited physical resuscitation, lifesaving or first aid course and that the Course is not intended for practical application. In light of the foregoing, the Customer does not receive any (legal) certification or license after completing the Course. If the Customer decides to rely on any information provided by this Course for practical use, the Customer does so at their own risk.
9.3 The Customer agrees and acknowledges that the information provided during the Course, including information concerning medical care and resuscitation standards, is based on Dutch standards and that medical and resuscitation standards are country-specific. It is the Customer’s responsibility to verify whether the Dutch standards are compliant with the (legal) medical and resuscitation standards in their own jurisdiction.
9.4 To the fullest extent permitted by applicable law, the E-learning Platform, Course and any information, products or Services therein or obtained thereby are provided ‘as is’ without warranty of any kind (express, implied or otherwise), including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement.
9.5 SMI does not warrant that the E-learning Platform will operate in an uninterrupted or error-free manner or that the E-learning Platform is free of viruses or other harmful components.
9.6 Without limiting the foregoing, SMI does not warrant that a) the Course and related Services will meet the Customers requirements, expectations or achieve the intended purposes, b) the E-learning Platform will not experience outages or otherwise will be uninterrupted, timely, secure or error-free and c) the information obtained through the Course and related Services will be accurate, complete, current, error-free, secure or reliable and d) any defects in or on the Course as well as in or on the E-learning Platform will be corrected.
9.7 SMI does not make representations regarding Customer’s ability to transmit and receive information from or through the E-learning Platform and the Customer agrees and acknowledges that Customer’s ability to access the E-learning Platform and therefore the Course, may be impaired.
9.8 The Customer acknowledges and agrees that the warranty disclaimers set forth in these Terms and Conditions reflect a reasonable and fair allocation of risk between the Customer and SMI, and that these warranty disclaimers are essential to SMI’s willingness to make the E-learning Platform and Course available to you. Each of these warranty disclaimers is intended to be separately enforceable, regardless of whether any other remedy fails of its essential purpose.
9.9 For the purpose of the warranty disclaimers set out in the preceding clauses, SMI shall be deemed to include, without limitation, current and former directors, officers, employees, agents, affiliates, representatives and any other persons or entities acting, directly or indirectly, on its behalf or in connection with its business activities.
9.10 Certain jurisdictions do not permit the exclusion or limitation of implied warranties. If mandatory consumer protection laws or other applicable legal clauses in such jurisdictions apply to the Customer, then some or all of the warranty disclaimers set out above may not apply to that Customer. In such cases, the Customer may be entitled to additional statutory rights that cannot be contractually excluded or limited.
10. LIMITATION OF LIABILITY
10.1 To the fullest extent permitted by applicable law, SMI shall not be liable for any indirect damages, whether foreseeable or unforeseeable, including without limitation consequential damages, delay damages, loss of profits and loss of revenue, whether based in contract, tort, statutory law or other law.
10.2 To the fullest extent permitted by applicable law, SMI shall not be liable for any damage, regardless its nature, that is the consequence of wrong and/or incorrect information, recommendation and/or advice, provided in the context of the Course, including – but not limited to – the information, recommendations and/or advice provided through the E-Learning Platform, the Course material or any other document or Service relating to the Course.
10.3 To the fullest extent permitted by applicable law, SMI shall not be liable for any loss, damage, injury, or death caused to third parties as a result of acts or omissions of the Customer and/or any third party such as (sub-)licensees, including, without limitation, any misuse or misapplication of the E-learning Platform and/or Course materials, or actions taken by the Customer and/or third party based on information provided in the Course or via the E-learning Platform. Nothing in this clause limits liability where such exclusion is prohibited by mandatory law.
10.4 SMI’s total (cumulative) liability to the Customer arising out of or related to the Agreement, the Course or any other Service shall not exceed the greater of the total amount of Course’ fees received by SMI from the Customer or any third party on Customer’s behalf, in the twelve (12) months preceding the event giving rise to the damages. Under no circumstances shall SMI’s liability for damages exceed the amount actually paid out to SMI by its insurer.
10.5 The limitations set forth in this clause shall not apply in the event the damage results from intent (in Dutch: opzet) or gross negligence (in Dutch: grove roekeloosheid) on the part of SMI or any of its directors, officers, or other persons in a managerial position responsible for the relevant act or omission.
10.6 Customers agree and acknowledge that any right to claim compensation, regardless the basis of that liability, is subject to the obligation to report such damage in accordance with clauses 18.2 and further, no later than six (6) months after the event giving rise to the damages, or at least within six (6) months after the moment the damage could be reasonably have been discovered. The notification shall clearly indicate and specify the damage suffered.
10.7 Employees, contractors, agents, representatives or any other subordinate of SMI are not authorised to make any statements regarding SMI’s liability.
10.8 Customers acknowledge and agree that the limitations of liability set forth in these Terms and Conditions reflect a reasonable and fair allocation of risk between the Customer and SMI, and that these limitations are essential to SMI’s willingness to make the Course, E-learning Platform and other Services available to the Customer. Each of these limitations is intended to be separately enforceable, regardless of whether any other remedy fails of its essential purpose.
10.9 For the purposes of the limitations of liability set out in the preceding clauses, SMI shall be deemed to include, without limitation, its current and former directors, officers, employees, agents, affiliates, representatives, and any other persons or entities acting, directly or indirectly, on its behalf or in connection with its business activities.
10.10 Certain jurisdictions do not allow the exclusion or limitation of certain damages. If compulsory laws or regulations of these jurisdictions apply to a Customer, some or all of the above exclusions or limitations may not apply to that respective Customer. The respective Customer might have additional rights
11. IDEMNIFICATION
11.1 Customers agree to indemnify and hold harmless SMI from any and all claims, liabilities, damages, losses and expenses, including reasonable attorney’s fees and costs, relating to or arising out of a) Customers’ use or attempted use of the E-learning Platform or Course in violation with the Agreement or these Terms and Conditions and, b) Customer’s violation of any law or rights of any third party.
11.2 For the purpose of the indemnification set out in the preceding clauses, SMI shall be deemed to include, without limitation, current and former directors, officers, employees, agents, affiliates, representatives and any other persons or entities acting, directly or indirectly, on its behalf or in connection with its business activities.
12. FORCE MAJEURE
12.1 Parties shall not be obliged to perform any obligation under the Agreement if they are prevented from doing so as a result of force majeure, as defined in Article 6:75 DCC.
12.2 Any circumstance beyond the control of SMI that hinders the fulfilment of its obligations under the Agreement shall be considered a non-attributable failure (force majeure) and shall release SMI from the performance of those obligations. Such circumstances shall in any event include, but are not limited to, strikes within the company of SMI, prolonged outages at suppliers, such as Thinkific, bankruptcies of these suppliers, acts of cybercrime, war or terrorism, natural disasters, power or internet failure, governmental regulations and pandemics.
12.3 If a force majeure situations lasts longer than three (3) months, either Party shall be entitled to terminate the Agreement affected by the force majeure situation extrajudicially, without the Customer being entitled to any form of compensation.
13. INTELLECTUAL PROPERTY
13.1 All Intellectual Property Rights developed and/or applied by SMI through the Course, in the E-learning Platform and in the performance of its Services, including but not limited to the Content, models, methodologies, materials, software and algorithms, are and shall remain the exclusive property of SMI at all times.
13.2 All (digital) content and information made available in the context of the Course, including but not limited to, instructional materials, (video) images, audio files, texts and handouts, is intended solely for the Customer’s personal and non-commercial use. Without the express prior written consent of SMI, it is not permitted to store, archive, reproduce, distribute, modify, license, disclose, make available to third parties or create derivative content or data from such Content or information.
14. PRIVACY PROTECTION
14.1 SMI commits to comply with applicable Dutch and European laws and regulations concerning privacy and data protection, including the GDPR and the Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening Gegevensbescherming), when processing Personal Data.
14.2 SMI shall not retain the Personal Data longer than is necessary for the purpose for which the Personal Data is processed. If a Customer objects, either directly or indirectly, to the use, storage, or other processing of their Personal Data by SMI, such processing shall cease immediately, and the Personal Data shall be permanently deleted, unless a statutory retention obligation applies. The Customer acknowledges and accepts that this may result in the deletion of their User Account and consequently, access to the E-learning Platform will no longer be possible.
14.3 The Customer acknowledges that they have read and understood the Privacy Policy of SMI. The Privacy Policy is available on the website of SMI via the following url: www.surfingmed.com/osls-privacy-policy/. A digital copy of the Privacy Policy is also available upon request from SMI.
14.4 The Customer acknowledges and agrees that SMI may use services and/or products of third parties, such as Thinkific, to provide the Course and related Services. Consequently, Customers acknowledge and agree that privacy statements and/or other terms and conditions of those third parties may be applicable. It is the Customer’s responsibility to read and understand these privacy statements and/or terms and conditions of such third parties.
15. COMPLAINTS PROCEDURE
15.1 Complaints regarding the E-learning Platform, the Course, or related Services must be submitted in writing by the Customer to SMI in a timely manner. The Customer shall ensure that such notification is made in accordance with clause 18.2 and further of these Terms and Conditions.
15.2 The notice of default must contain a clear and detailed description of the complaint.
16. ENTIRE AGREEMENT CLAUSE
16.1 These Terms and Conditions, the Privacy Policy, SMI’s website and the order confirmation together constitute the entire Agreement between the Customer and SMI with respect to the Course and related Services, unless the Customer and SMI have executed a separate agreement which governs the purchase and sale of the Course, and such agreement is in effect at the time of purchase.
16.2 The entire agreement supersedes all prior agreements, understandings and representations, both written and oral, between the Customer and SMI, with respect to the Course.
16.3 Some terms applicable to the Customers’ registration for the E-learning Platform or participation in the Course may be provided to the Customer at the time of registration or on the Course-specific web page(s). These additional terms may include, among other things, terms and privacy statements of third parties relating to the User Account. Customers’ registration and participation shall be subject to the Customers’ agreement and compliance with those additional third-party terms.
17. GOVERNING LAW AND JURISDICTION
17.1 Customers agree that the Agreement and any claim or dispute arising out of or relating to the Agreement will be governed by and construed in accordance with the laws of the Netherlands, excluding its conflicts of law principles.
17.2 Customers agree that all such claims and disputes will be heard and resolved exclusively in the District Court of The Hague (in Dutch: Den Haag), located in the province Zuid-Holland, the Netherlands.
17.3 For this purpose, the Customer consents to the personal jurisdiction of this court, and they waive and agree not to assert any objection to such proceedings in this court, including without limitation any defence or objection of lack of proper jurisdiction, venue or inconvenience of forum.
18. OTHER CLAUSES
Assignment
18.1 SMI may freely transfer or assign any portion of its rights or delegate its obligations under the Agreement. The Customer is not entitled to transfer or assign, by operation of law or otherwise, any portion of its rights or delegate its obligations under the Agreement to a third party, without the prior written consent of SMI, and any attempted such transfer or assignment shall be void and of no effect.
Notices by the Customer
18.2 Any mandatory notification to SMI by the Customer under these Terms and Conditions shall be in accordance with the following clauses.
18.3 The Customer shall procure that any mandatory notification will be sent to SMI as follows: i) by registered electronic mail to osls@surfingmed.com, or ii) by personal delivery, overnight courier, or registered or certified mail to Stichting Surfing Medicine International, Den Haag, the Netherlands. Notices provided by personal delivery will be effective immediately. Notices provided by an overnight courier or electronic registered mail will be effective one business day after it is sent. Notices provided by registered or certified mail will be effective seven business days after they are sent.
18.4 SMI may update the electronic email address or physical address for notices by posting an announcement on the general website of SMI www.surfingmed.com. It is Customers’ responsibility to verify whether the email address or physical address is updated.