Waiver and Release of Liability Agreement
This Waiver and Release of Liability Agreement (the Agreement) is entered into by and between the Student and Joanna Tringali/Calm Massage and Skincare, LLC dba Calm Beauty Brooklyn, a New York limited liability company (the Instructor). Instructor and Student shall be referred to individually herein as a Party, and collectively as the Parties. Teacher provides beauty and wellness training services, including without limitation facial massage treatments, skin conditioning, and other related services (collectively, the Trainings), and Student wishes to receive such Trainings subject to the rules and limitations set forth in this Agreement. In consideration of the foregoing and the representations, warranties and agreements set forth below, the Parties agree as follows:
1. Student Certificate. Subject to successful completion of the Trainings, Student will receive a certificate of completion of the Training(s). Student must not: (a) claim completion of the Trainings, without receiving the Certificate; and (b) promote any qualifications in the services learned in the Trainings to third parties without Certificate unless certificate is obtained from another qualified trainer of such service matter. Certificate does not grant any certification, licensure or other permissions granted by regulatory bodies for providing massage or skin care, health or wellness advice, psychological or psychiatric counseling, or coaching to other persons or entities. Student Certificate does not permit Student to use any teachings learnt at any of the Trainings to create new techniques of their own. Instructor maintains the right to terminate Student’s Certificate status upon any breach of this Agreement.
2. Intellectual Property.
2.1 Materials and Sequences. Subject to the terms of this Agreement, Instructor hereby grants Student a revocable, non-exclusive, and non-transferable license to use the Joanna Tringali/Calm Beauty Brooklyn Manual (the Manual) and any of the sequences learned at Trainings (collectively, the Sequences) to permit Student to provide services including such Sequences to third parties (collectively, the Services). All other rights to the Manual and the Sequences are expressly reserved.
2.2 Instructor Branding. Subject to the terms of this Agreement, Instructor hereby grants Student a revocable, non-exclusive, and non-transferable license to use Instructor’s name and Certificate (collectively, the Branding) to promote the offering of Services. All other rights to the Branding are expressly reserved.
3. Acknowledgement; Assumption of Risk. Student acknowledges and understands that: (a) participation in the Trainings may be physically and emotionally strenuous and may result in accident or injury to Student; and (b) the provision of Services to third parties may result in injury to third parties. Student assumes all risks and responsibilities connected with and arising out of: (i) Student’s participation in the Trainings; and (ii) all responsibility resulting from their provision of Services to third parties, including without limitation applicable insurance coverage and licensure where the Services may be provided. Student acknowledges and agrees that the Certificate does not replace required licensure and that Student must obtain proper licensure and certification to perform touch therapy and massage in their own locality, state, and country.
4. Payment. Student shall remit payment for the Trainings (Payment) via Instructor’s website. Payment must be received prior to Student’s commencement of the Trainings, and Student will not receive Certificate until Payment is received in full.
5. Representation and Warranties. Student represents and warrants that: (a) Student suffers from no physical, dietary, psychological, or psychiatric impairment that would limit Student’s ability to participate in the Trainings or render Student more susceptible to injury through participation in the Trainings; (b) Student will keep Instructor fully informed of any existing or future-occurring physical, dietary, psychological or psychiatric condition or disability, which would prevent or limit Student’s participation in the Trainings or cause physical or mental injury to Student through participation in the same; (c) Student will immediately notify Instructor of any and all physical, dietary, psychological or psychiatric complaints Student may have resulting from participation in the Trainings; and (d) Student will immediately terminate any practice or activity learned, performed, or acquired in and from the Trainings if Student develops any physical, dietary, psychological or psychiatric symptoms that would risk Student’s physical or mental health.
6. Limitations of Service; Indemnification. Student acknowledges that Student has not and will not render any medical, psychiatric, or psychological services to Service customers including, without limitation, medical, psychiatric, or psychological diagnosis of any condition. Student voluntarily releases, discharges, and agrees to indemnify and hold harmless Instructor from any claim, demand or cause of action of any kind whatsoever for personal injury, property damage or loss of any kind resulting from or related to Instructor’s Trainings or any Services offered by Student.
7. Relationship of the Parties. In the teaching of Trainings, Instructor will in all respects be an independent contractor. Nothing contained in this Agreement will be construed to constitute the Parties as partners, employees, agents or joint venturers of each other. No Party will have the authority to bind the other Party in any respect. Instructor will determine in Instructor’s sole discretion, the manner and means by which Teacher’s obligations under this Agreement are accomplished.
8. Governing Law and Dispute Resolution. The laws of the United States and the State of New York applicable to contracts negotiated and performed in New York will govern this Agreement. Student agrees to first conduct friendly negotiations with Instructor (including mediation if requested by either Party) to resolve any dispute arising out of this Agreement. Student further agrees that any such dispute will be resolved by binding arbitration in New York, New York by one (1) arbitrator agreed upon by the Parties and subject to the American Arbitration Association’s Commercial Arbitration Rules & Mediation Procedures. The prevailing Party in any such proceeding shall be entitled to receive from the other Party the prevailing Party’s reasonable attorneys’ fees and costs incurred in connection with such proceedings.
9. Severability. If any provision of this Agreement is held by a Court of competent jurisdiction to be illegal, invalid, or unenforceable: (a) that provision will be deemed amended to achieve as nearly as possible the same economic or protective effect as the original provision; and (b) the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.
10. Binding Effect; Assignment. This Agreement will be binding on and inure to the benefit of the Parties hereto and their respective successors, assigns, heirs, and personal representatives; except that Student may not assign Student’s rights and benefits, nor delegate, assign, or subcontract Student’s obligations and duties hereunder without the prior written consent of Instructor. Instructor may assign any or all of its rights and benefits under this Agreement, and delegate any or all the performance of its obligations and duties hereunder without Student’s consent.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, e-mail (including pdf) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
12. Entire Agreement. This Agreement contains the complete understanding of the Parties with respect to the subject matter hereof and supersede all prior representations and understandings, whether oral or written. The terms of this Agreement will govern all of the services provided by Instructor to Student. No amendment, modification, change or alteration of this Agreement will be effective unless made in writing and signed by a duly authorized officer or representative of each of the Parties.