Terms & Conditions

Top Snorkeling shall endeavor to provide a safe and enjoyable excursion to the excursion participant ("participant") subject to the following Terms & Conditions. The making of a reservation shall conclusively establish participant's acceptance of these Terms & Conditions.

1. EXCURSIONS

a. EXCURSION PARTICIPATION. Excursions go to locations that require basic to more advanced swimming and snorkeling abilities. Participant must be able to snorkel without the aid of floatation devices, such as life jackets, floatation rings, or human assistance. Participant must be able to propel themselves unaided against current. Participant must be able to clear participant's mask and snorkel of water. Participant must be able to troubleshoot equipment issues. Participants who do not have the required skills will be asked to return to the boat and cease snorkeling.

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c. PRICE INCLUSIONS: Prices include boat transportation to activity locations, jetty and marine park fees, lunch and beverages, and equipment for snorkeling (mask, snorkel, fins, and rash guard clothing).

d. PRICE EXCLUSIONS: Prices exclude airport transfer, ground transportation, accommodations, photo services, long fins for freediving, scuba diving equipment, dive computers, personal items such as sunscreen and medicine, clothing, wetsuits, insurance, guides, and equipment and other things not mentioned in PRICE INCLUSIONS.

e. GUIDES. In-water guides are not included in the price of excursions. Guides are available for hire at the participant's election.

f. PHOTOGRAPHERS. Participant may hire a Top Snorkeling photographer to take photographs during participant's excursion. Hiring of a photographer must occur at least two (2) weeks before the excursion.

g. MINIMUM EXCURSION PARTICIPANTS. All excursions require a minimum of four (4) participants. If an excursion does not have the minimum required participants, Top Snorkeling will endeavor to have participant join a different excursion. If Top Snorkeling is unable to accommodate participant with a different excursion, participant may elect to pay an additional fee for a chartered excursion or to receive a full refund.

h. PARTICIPANT AGE. Participant must be a minimum of eight (8) years of age. Individuals younger than eighteen (18) years of age must be accompanied by a parent or other responsible adult, who shall be solely responsible for the supervision of minor participants to ensure compliance with these Terms & Conditions.

i. CHANGES TO ITINERARY. Top Snorkeling reserves the right, at its sole and absolute discretion, to make changes to or cancel an excursion due to inclement weather, rough seas, operational needs, or other circumstances without prior notice to participant. Top Snorkeling will provide a full refund for cancellations by Top Snorkeling that occur prior to the beginning of the course or excursion. Cancellations made by Top Snorkeling after a course or excursion has started are not entitled to a refund.

j. MEALS. Our meals strictly follows a NO PORK policy. We are unable to accommodate food allergies, food restrictions, or special diets (vegetarian). Participant may bring their own food if they wish.

2. PAYMENT, CHANGES, CANCELLATIONS AND REFUNDS

a. RESERVATIONS: All courses and excursions must be paid in-full at the time of reservation. ALL RESERVATIONS ARE NON-REFUNDABLE, UNLESS STATED OTHERWISE HEREIN.

b. PAYMENT DETAILS: All payments must be made on-line at the time of reservation at www.topsnorkeling.com.

c. PARTICIPANT CHANGES: Participant may change dates for excursions before the date of the excursion, subject to availability, by contacting Top Snorkeling in writing (email or text). If requested by Top Snorkeling, participant shall provide written proof showing the change request. If Top Snorkeling does not have availability to accommodate the change request, the excursion will not be changed.

d. PARTICIPANT CANCELLATIONS. Cancellations made within twenty-four (24) hours of reserving an excursion shall receive a full refund.

3. FITNESS FOR ACTIVITIES, ASSUMPTION OF RISK AND WAIVER OF LIABILITY

a. PARTICIPANT HEALTH. Participant is responsible for ensuring their physical condition is good enough to handle the potential rigors of snorkeling.

b. ASSUMPTION OF INHERENT RISKS. Participant understands and acknowledges the inherent risks of snorkeling and boating and agrees to accept personal liability for such risks. Risks include, but are not limited to, death, injury, catastrophic injury, drowning, stroke, heart attack, apnea, sun exposure, hypothermia, hyperthermia, infection, cuts, bruises, back injury, neck injury, muscle injury, marine life stings, venoms or poisons, marine life attacks, lightning strikes, waves, currents, poor visibility both above and below the water, boat collision, propeller injuries, boat capsizing, boat sinking, mechanical failures, equipment failures, and other risks both known and unknown.

c. WAIVER OF LIABILITY: Prior to participating in an excursion, participant shall sign a waiver of liability and indemnification agreement waiving liability of Top Snorkeling, indemnifying Top Snorkeling for any injuries caused by or to the participant, and acknowledging and agreeing to these Terms & Conditions. Refusal to sign a waiver of liability and indemnification shall be deemed a cancellation by the participant.

d. INDEMNIFICATION FOR EMERGENCY RESCUE. Participant agrees to pay all costs and expenses incurred if an emergency rescue of participant is required. Top Snorkeling, in its sole and absolute discretion, will decide if an emergency rescue is warranted. Costs and expenses may include, but are not limited to, boat transportation, helicopter rescue, refunds paid to other participants for cancelled excursions as Top Snorkeling shall decide, medical treatment, medical transport, ambulance transport, police transport, and any other costs, whether known or unknown, undertaken to perform an emergency rescue.

e. TRAVEL, HEALTH, AND OTHER INSURANCE. Participant enrolls in and participates in excursions at their own risk and subject to Top Snorkeling's Terms & Conditions. Insurance provides a way for participant to minimize their financial risks. Top Snorkeling specifically disavows liability as stated herein and for any liability not specifically accepted herein. Participants are advised to consider insurance to minimize financial risks of trip interruption or cancellation, medical treatment, medical transport, emergency rescue, body transport, lost income, and other risks for which insurance may provide coverage.

4. EXPECTATIONS OF PARTICIPANT

a. COMPLIANCE WITH DIRECTIVES. Participant shall comply with all directives of Top Snorkeling personnel.

b. SEA ETIQUETTE. Participant must follow the three rules of "sea etiquette" while snorkeling: 1. Do not touch coral; 2. Do not touch marine life; 3. Do not litter; and 4. Obey your captain's directions.

c. DON'T TOUCH POLICY. Participant's touching of coral and marine life, whether intentionally or inadvertently, shall result in the cessation of the participant's snorkeling, the participant remaining on the boat for the remainder of the excursion, AND AN ADDITIONAL FEE OF RM1,000 THAT MUST BE PAID PRIOR TO PARTICIPANT'S DEPARTURE FROM THE BOAT. We take protection and preservation of the marine environment with the utmost seriousness and expect the same from participant.

d. FREEDIVING. Unless specifically designated, excursions are not intended for freediving and do not have the requisite equipment and supervision for safe freediving. Participant is advised to dive no deeper than participant's abilities and no more than ten (10) meters.

e. SUN AND BODY PROTECTION. Participant is required to wear rash guard clothing for protection from the sun, stinging creatures in the water, and other environmental hazards. This is non-negotiable. Participant is encouraged to minimize the use of sunscreen, as it can have a negative impact on coral.

5. OTHER TERMS AND CONDITIONS

a. PARTICIPANT HAPPINESS GUARANTEE. Top Snorkeling guarantees that participant will be happy with Top Snorkeling's excursion. If participant is unhappy with any aspect of the excursion, participant shall notify Top Snorkeling's personnel of the issue and allow Top Snorkeling to correct the issue to participant's satisfaction. If Top Snorkeling is unable to correct the issue and participant is still not happy, participant shall notify Top Snorkeling that participant would like a refund and participant shall cease participating in activities and shall remain in the boat for the duration of the excursion. Top Snorkeling will continue to serve participant beverages and lunch for the duration of the excursion. DON'T RUIN IT FOR OTHERS. Participant shall not call attention to the participant's unhappiness with the excursion so as to be a negative influence on other participants' enjoyment of the excursion and shall simply tell other participants that participant is not feeling well enough to continue. Failure to not call attention to participant's unhappiness will negate this guarantee and a refund will not be issued.

b. NON-DISPARAGEMENT. Top Snorkeling and participant agree that they shall not disparage the other, whether in reviews, social media posts, or other communication mediums. Participant agrees that disparagement of Top Snorkeling may result in harm to Top Snorkeling's reputation and business and that Top Snorkeling may seek injunctive relief, monetary relief, attorney fees, and other costs for bringing an action against participant for disparagement, defamation and related causes of action.

c. MODIFICATIONS OF THE TERMS AND CONDITIONS. Top Snorkeling may modify the Terms & Conditions provided herein without notice. In the event of a conflict between the Terms & Conditions herein and the Terms & Conditions signed by a participant just prior to participating in a course or excursion, the Terms & Conditions signed just prior to participating shall be controlling.

d. LANGUAGE. In the event these Terms & Conditions are translated into a language other than English, for example through translation software, interpretation and enforcement of these Terms & Conditions shall be exclusively based on the English version of these Terms & Conditions and the English language.

e. INTERPRETATION. Interpretation of these Terms & Conditions shall be made in the manner most favorable to Top Snorkeling.

f. SURVIVAL OF TERMS. In the event a term or condition in these Terms & Conditions is held unenforceable, all remaining terms and conditions shall remain enforceable.

g. VENUE FOR DISPUTES. In the event that a lawsuit is filed between Top Snorkeling and participant, suit shall be filed in Semporna, Sabah, Malaysia, or the nearest venue to Semporna in which suit may be filed.

h. JURISDICTION. Jurisdiction of all disputes shall be under the laws of Sabah, Malaysia.

i. POSTING OF ATTORNEY FEES AND COSTS. If participant files suit against Top Snorkeling, Top Snorkeling shall have the right to request and receive the posting of Top Snorkeling's anticipated attorney fees and costs by the participant prior to suit proceeding. Top Snorkeling shall have the right to request and receive additional anticipated attorney fees and costs to be posted by participant as the suit progresses. Failure to post attorney fees and costs shall be grounds for dismissal of the suit res judicata.

j. WAIVER OF ATTORNEY FEES. Participant agrees to waive any and all attorney fees and other costs participant may incur in bringing suit against Top Snorkeling.

k. COMPLETE AGREEMENT. These Terms & Conditions contain the complete agreement between Top Snorkeling and participant. The Terms and Conditions may not be modified by either party, whether in writing or verbally. In the event of a dispute, the Terms & Conditions shall constitute the sole and absolute agreement between the parties.

Terms & Conditions

Top Snorkeling shall endeavor to provide a safe and enjoyable excursion to the excursion participant ("participant") subject to the following Terms & Conditions. The making of a reservation shall conclusively establish participant's acceptance of these Terms & Conditions.

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