ADVENTURE TOUR WAIVER & BOOKING TERMS AND CONDITONS
THIS IS AN IMPORTANT DOCUMENT AND YOU SHOULD READ IT CAREFULLY BEFORE AGREEING TO THE FOLLOWING TERMS AND CONDITIONS. UPON AGREEING, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS.
Australian Adventure Group Holdings Pty Ltd ACN 661 075 163 (AAG) trading as Adventure Tours Australia is an adventure tourism provider offering safe, sustainable, and culturally respectful tours that showcase Australia’s diversity (Adventure Tour). By booking to participate in an Adventure Tour, you (You, Your, I or Participant) accept and agree to be bound by these booking terms and conditions (Agreement).
1 Definitions
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Released Parties means AAG and its related bodies corporate (as defined under section 50 of the Corporations Act 2001 (Cth)) and AAG’s respective employees, agents, representatives, contractors and licensees.
Releasing Parties include the Participant, as well as Participant’s spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on Participant’s behalf.
2 Notice to Participant(s)
(a) Note to Minors: If you are under the age of 18, you may only attend the Adventure Tour with written permission from your legal guardian and AAG.
(b) Note to parents/guardians of Minors: You acknowledge that you have reviewed and agreed to the terms below (such terms being interpreted as if they applied to both you and your minor/child) and have the legal authority to enter into this Agreement on behalf of your minor child/ward.
(c) Note to Participants/Minors/Adults:
(i) Before signing, you have read this Agreement carefully. This Agreement has legal consequences, will affect your legal rights and will limit your ability to commence future legal actions.
(ii) Before signing, you have carefully read the materials provided by AAG that describe the Adventure Tour, you and your minor/child responsibilities while participating in the Adventure Tour, and the potential health, safety, and other risks associated with participation in the Adventure Tour, including but not limited to accidents or illness, disease, poor sanitation, inadequate medical care and facilities, terrorism, acts of god, accidents, crime, the hazards of travel by air, train, boat, and motor vehicle, poor or extreme weather conditions and natural disasters.
(iii) Before signing, you have had the opportunity to ask any questions about the Adventure Tour, including the responsibilities and risks involved, and you willingly and freely assume any and all risks associated with local and international travel and participation in the Adventure Tour.
3 Warranties
(a) You warrant to AAG that you have read the materials provided by AAG that describe the Adventure Tour, your responsibilities while participating in the Adventure Tour, and the potential health, safety, and other risks associated with the your participation in the Adventure Tour, including but not limited to accidents or illness, disease, poor sanitation, inadequate medical care and facilities, terrorism, acts of god, accidents, crime, the hazards of travel by air, train, boat, and motor vehicle, poor or extreme weather conditions and natural disasters.
(b) You have taken the opportunity to ask any questions they may have about the Adventure Tour, and the responsibilities and risks involved, and have willingly and freely assumed any and all risks associated with local and international travel and the Adventure Tour in general, including but not limited to any other services related to the Adventure Tour.
(c) You warrant that prior to participating in the Adventure Tour you:
(i) are and must continue to be medically and physically fit and able to undertake and participate in the Adventure Tour;
(ii) are not a danger to yourself or to the health and safety of others;
(iii) have not at any time suffered any blackout, seizure, convulsion, fainting or dizzy spells;
(iv) are responsible for seeking personal medical advice for recommended and necessary immunisations; and
(v) are not presently receiving treatment for any condition, illness, disorder or injury which would render it unsafe for you to take part in the Adventure Tour.
(d) You acknowledge that you must, and you agree that you will, disclose any pre-existing medical or other condition that may affect the risk that either you or any other person will suffer injury, loss or damage. You acknowledge that AAG relies on information provided by you and that all such information is accurate and complete. You agree to report any accidents, injuries, loss or damage you suffer during the Adventure Tour to AAG before you leave any relevant venue or stop. You consent to receiving any medical treatment that AAG organisers or their authorised representatives consider necessary or desirable during or after the Adventure Tour and agree to reimburse AAG for any costs or expenses incurred in providing such medical treatment.
(e) You warrant that you accept full responsibility for any loss or damage to all vehicles and other property provided by AAG to you during the Adventure Tour.
4 Responsibility for Preparation
(a) You agree to attend pre-departure information sessions, including but not limited to vehicle safety induction/presentation and other programs or meetings which AAG may conduct regarding the Adventure Tour.
(b) AAG recommends that you purchase adequate and relevant travel insurance. It is your responsibility to purchase adequate and relevant travel insurance to cover you for any instance, including loss, damage or illness, unless AAG has arranged this on your behalf.
5 Changes in Tour
(a) The duration, itinerary, or other details of the Adventure Tour may be cancelled, curtailed, altered, or modified without prior notice or obligation to you, except that in the event of cancellation, a refund will be made of all monies paid by you or on your behalf to AAG for participation in the Adventure Tour, excluding any non-refundable services or components of monies paid by you (e.g. pre-purchased food).
6 Compliance with Laws, Regulations & Rules
(a) You must abide by all laws of the states, territories, country or countries visited, including but not limited to laws governing the use of all vehicles, alcohol, and drugs. If you choose to consume alcohol, as allowed by law in any relevant jurisdiction, you agree to do so responsibly and at your sole risk.
(b) You agree to comply with all rules, regulations, standards of conduct and reasonable directions of AAG its agents, and employees who, in the event of violation or non-compliance, reserve the right to limit or terminate your participation in the Adventure Tour.
(c) If your participation in the Adventure Tour is terminated (excluding you from further participation in the Adventure Tour), return to your home or place of departure will be at your sole expense, arrangement and risk.
7 Possession of Documents
(a) At all times during your travel or participation in the Adventure Tour, you agree to be in possession of a valid driver’s licence, identification document or passport and official travel document and any valid visas (including but not limited to tourist or student visa) or other immigration documents required for entry into a foreign country and re-entry into Australia.
8 Insurance
(a) You assume all risk and responsibility for their medical needs while participating in the Adventure Tour and acknowledge that AAG is not responsible for the provision and quality of medical treatment or hospital care received while participating.
(b) You assume full financial responsibility for and release AAG from any and all liabilities resulting from the good faith exercise of this authority.
(c) AAG strongly recommends that you are currently enrolled in a health insurance program, such as Medicare, private health insurance, or travel insurance, that provides coverage for expenses incurred while participating in the Adventure Tour.
9 Risk Warning
(a) The Releasing Parties acknowledge that the Adventure Tour (including services ancillary to the Adventure Tour) carry with them inherent risks of injury (physical and/or mental). Inherent risks are risks that cannot be eliminated completely, regardless of the care and precautions taken by AAG.
(b) The Releasing Parties understand and acknowledge that the inherent risks include, but are not limited to:
(i) falls, tripping, contact or collision with persons or objects;
(ii) unpredictable water movements;
(iii) weather-related hazards, including extreme heat or cold, humidity, rain, fog, lightning or wind;
(iv) the actions of wild sea creatures or creatures encountered;
(v) 4WD off-road driving;
(vi) remote area isolation;
(vii) the actions and behaviour of other participants attending the Adventure Tour; And
(viii) any other risk that is out of the control of AAG or unreasonable to expect AAG to counteract.
(c) The Releasing Parties acknowledge that they understand that risks involved in the Adventure Tour which could lead to injuries, including risks not specifically named, and that the Releasing Parties are participating in the Adventure Tour entirely at their own risk.
(d) You acknowledge that the assumption of risk and warning above constitutes a 'risk warning' in accordance with relevant legislation.
10 Waiver
(a) You acknowledge that it is possible for a supplier of recreational services or recreational activities to ask you to agree that statutory guarantees under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010(Cth)) do not apply to you (or a person for whom or on whose behalf you are acquiring the services or activities).
(b) You acknowledge that by agreeing to this Agreement, you will be agreeing that your rights (or the rights of a person for whom or on whose behalf you are acquiring services) to sue the supplier of recreational services or recreational activities that you undertake because the services or recreational activities (the Adventure Tour) provided were not in accordance with the guarantees are excluded, restricted or modified as set out in Schedule 1 to this Agreement.
(c) You understand and agree that AAG must not in any way be deemed responsible for the operation or management of any means of transportation, public or private, or facilities used by the Adventure Tour or any Adventure Tour participant, and your participation on any Adventure Tour or transportation or event or activity will be solely at their own risk.
(d) In the event the you engage in any activities which involve a risk to person or property (including but not limited to travel on local transport, and any activity while intoxicated or under the influence of any substance), you do so at your own risk and agree that AAG must not in any way be liable for your actions, safety, loss or damage.
11 Limitation of Liability and Exclusion of Liability
(a) You understand and agree that to the extent permitted by law, AAG's liability for failure to comply with a consumer guarantee under the ACL is limited to:
(i) in the case of goods supplied, the replacement of the goods or the supply of equivalent goods (or the payment of the cost of the replacement or supply) or the repair of the goods (or the payment of the cost of the repair); and
(ii) in the case of services supplied, the supply of the services again or the payment of the cost of having the services supplied again.
(b) AAG is not liable to you for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, except to the extent that such liability may not lawfully be limited or excluded.
(c) AAG expressly excludes liability for Consequential Loss or damage which may arise in respect of the Adventure Tour or for loss of data, loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort. You agree to release and indemnify AAG to that extent.
For the purposes of the foregoing, “Consequential Loss” means any loss that does not arise naturally and according to the usual course of things as a result of a breach of this Agreement or other event giving rise to such loss, whether or not such loss may reasonably be supposed to have been in the contemplation of the parties, at the time they entered into this Agreement, as the probable result of the relevant breach or other event.
(d) To the fullest extent permitted by law, AAG excludes all warranties implied by law except as expressly set out in the Agreement.
(e) The limitation of liability set out in clause 11 will not apply to any liability arising as a result of, or in connection with:
(i) fraud or wilful misconduct by AAG;
(ii) breach of confidentiality by AAG;
(iii) breach of privacy by AAG; or
(iv) infringement of a third party's Intellectual Property Rights by AAG.
12 Privacy & Use of Image
(a) You understand that the personal information you provide in connection with the Adventure Tour is necessary for AAG to deliver the Adventure Tour services and is collected, used and disclosed in accordance with the AAG’s Privacy Policy (available from https://www.adventuretours.com.au/privacy). AAG may use and disclose your personal information for the purposes of conducting and administrating the Adventure Tour, providing you with other necessary services or promotional material, complying with legal obligations or otherwise in accordance with the AAG Privacy Policy.
(b) You acknowledge and consent to photographs and electronic images being taken of you during your participation in the Adventure Tour. You acknowledge and agree that such photographs and electronic images are owned by AAG and that AAG may use the photographs for promotional or other purposes without your further consent being necessary. Further, you consent to AAG using your name, image, likeness and performance in the Adventure Tour, at any time, by any form of media, to promote the Adventure Tour.
13 General
13.1 Bar to Proceedings
(a) You acknowledge that AAG may plead this Agreement as a bar to proceedings now or in the future commenced by or on behalf of you or by any person claiming through you. Where you commence proceedings against AAG, you:
(i) will commence those proceedings in the courts of the jurisdiction in which any incident occurs;
(ii) waive any right to object to the exercise of such jurisdiction;
(iii) will, where you seek to commence proceedings in another jurisdiction from where any incident occurs, consent (if required by AAG) to move those proceedings to the jurisdiction in which any incident occurs including consenting to any application made by AAG to remove the proceedings to the jurisdiction in which any incident occurs;
(iv) will pay the costs of any application made by AAG under paragraph (iii) in this clause and will consent to any application for security of costs made at any time by AAG; and
(v) consent to paying AAG’s legal defence costs of the proceedings (on a solicitor client basis) where AAG successfully defends the proceedings.
13.2 Severability
You understand and agree that the liability wavier in this Agreement is intended to be as broad and inclusive as is permitted by the law of the Commonwealth of Australia and that if any provision may be found to be unlawful, void, or for any reason unenforceable, then that provision must be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions. Furthermore, notwithstanding anything to the contrary contained within this Agreement, this Agreement will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any services pursuant to this Agreement of any provision of any Act of the Commonwealth of Australia or of its each state or territory which by law cannot be excluded, restricted or modified.
13.3 Governing law and jurisdiction
This Agreement and the transactions contemplated by this Agreement are governed by the laws enforced by Victoria, Australia. Each of the parties irrevocably submits to the jurisdiction of the courts of Victoria, Australia, and all courts called to hear appeals from the courts of Victoria, Australia, in respect of this Agreement or its subject matter.
13.4 Mediation
If a dispute arises out of or relates to this Agreement, or the breach, termination, validity or subject matter thereof, or as to any related claim in restitution or at law, in equity or pursuant to any statute, the parties to the Agreement and the dispute expressly agree to endeavour to settle the dispute by mediation before having recourse to litigation. This clause must survive the termination of this Agreement.
13.5 Relationship
Nothing in this Agreement constitutes the relationship of principal and agent or partners as between any of the parties, and no party has any authority to bind the other legally or equitably except as expressly stated in this Agreement to which it is party.
13.6 Acknowledgement & Agreement
In order to proceed, you must have read and agreed to the terms and conditions of this Agreement. By checking the box below, you declare that you have read, understood, acknowledge and agree to the terms and conditions of this Agreement including the exclusion of implied terms, warning, assumption of risk, release and indemnity. By checking the box below, you agree that if your booking for the Adventure Tour is accepted, you will be bound by the terms and conditions of this Agreement.
***Where the participant is under 18 years of age:
You are the parent or guardian of the participant. You authorise and consent to the participant undertaking the Adventure Tour. In consideration of the booking being accepted, you expressly agree to be responsible for the participant’s behaviour and agree to accept in your capacity as parent or guardian, the terms set out in this Agreement. You have read and understood this Agreement and have fully explained to the participant its terms and effect. The participant has read this Agreement and together with your explanation the participant has, to the best of your belief, understood the terms and effect of the Agreement. In addition, you agree to be bound by and to comply with any other policies or codes of AAG in relation to the Adventure Tour.
Schedule 1
For recreational services or activities provided throughout Australia:For recreational services to which the Australian Consumer Law (Commonwealth) applies: By making a booking and agreeing to be bound by this Agreement, I agree that the liability of AAG in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law) for any:
(a) death;
(b) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
(c) the contraction, aggravation or acceleration of a disease;
(d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:
(e) that is or may be harmful or disadvantageous to me or the community;
(f) that may result in harm or disadvantage to me or the community, that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) resulting from the supply of recreational services or recreational activities; is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.
For recreational services or activities provided in NSW or WA:
For recreational services or recreational activities to which the Australian Consumer Law (New South Wales) and Australian Consumer Law (Western Australia), applies:
By making a booking and agreeing to be bound by this Agreement, I agree that the liability of AAG in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law) and recreational activities (as that term is defined in the Civil Liability Act 2002 (NSW)) or Civil Liability Act 2002 (WA), as applicable) for any:
(a) death;
(b) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
(c) the contraction, aggravation or acceleration of a disease;
(d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:
(i) that is or may be harmful or disadvantageous to me or the community;
(ii) that may result in harm or disadvantage to me or the community, that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) resulting from the supply of recreational services or recreational activities; is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.
For recreational services or activities provided in Victoria:
For recreational services to which the Australian Consumer Law (Victoria) applies: Warning under the Australian Consumer Law and Fair Trading Act 2012:
Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the suppliers named in this Agreement and AAG, are required to ensure that the recreational services supplied to you:
(a) are rendered with due care and skill; and
(b) are reasonably fit for any purpose which you either expressly or by implication, make known to the supplier; and
(c) might reasonably be expected to achieve any result you have made known to the supplier. Under section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the supplier is entitled to ask you to agree that these conditions do not apply to you. If you accept this Agreement, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this Agreement.
Note: The change to your rights, as set out in this Agreement, does not apply if your death or injury is due to gross negligence on the supplier’s part. “Gross negligence” in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 (Vic) and section 22(3)(b) of the Australian Consumer Law and
Fair Trading Act 2012 (Vic). Exclusion of rights under the Australian Consumer Law (Victoria): By accepting this Agreement, you agree that the liability of AAG for any death or personal injury (as defined in the Australian Consumer Law and Fair Trading Act 2012) that may be suffered by you (or a person from whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services is excluded.
For recreational services or activities provided in ACT, Queensland or Tasmania:
For recreational services to which the Australian Consumer Law (Australian Capital Territory), Australian Consumer Law (Queensland) or Australian Consumer Law (Tasmania) applies:
By making a booking and agreeing to be bound by this Agreement, I acknowledge that where I am a consumer of recreational services, as defined by any relevant law, certain terms and rights usually implied into a contract for the supply of goods or services may be excluded. I acknowledge that these implied terms and rights and any liability of AAG flowing from them, are expressly excluded to the extent possible by law, by this Agreement. To the extent of any liability arising, the liability of AAG will, at the discretion of AAG, be limited in the case of goods, to the replacement, repair or payment of the cost of replacing the goods and in the case of services, the resupply of the services or payment of the cost of having the services supplied again. For the avoidance of doubt, this exclusion does not exclude liability for recklessness as defined by any relevant law.
For recreational services or activities provided in South Australia:
For recreational services to which the Australian Consumer Law (South Australia) applies: Your rights: Under sections 60 and 61 of the Australian Consumer Law (SA), if a person in trade or commerce supplies you with services including recreational services), there is:
(a) statutory guarantee that those services will be rendered with due care and skill; and
(b) statutory guarantee that those services, and any product resulting from those services, will be reasonably fit for the purpose for which the services are being acquired (as long as that purpose is made known to the supplier); and
(c) a statutory guarantee that those services, and any product resulting from those services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve the result that the consumer wishes to achieve(as long as that wish is made known to the supplier or a person with whom negotiations have been conducted in relation to the acquisition of the services). Excluding, restricting or modifying your rights: Under section 42 of the Fair Trading Act 1987(SA), the supplier of recreational services is entitled to ask you to agree to exclude, restrict or modify his or her liability for any personal injury suffered by you or another person for whom or on whose behalf you are acquiring the services (a third party consumer). If you accept this Agreement, you will be agreeing to exclude, restrict or modify the supplier's liability with the result that compensation may not be payable if you or the third-party consumer suffer personal injury.
Important:
You do not have to agree to exclude, restrict or modify your rights by accepting this Agreement. The supplier may refuse to provide you with the services if you do not agree to exclude, restrict or modify your rights by accepting this Agreement. Even if you agree to be bound by this Agreement, you may still have further legal rights against the supplier. A child under the age of 18 cannot legally agree to exclude, restrict or modify his or her rights. A parent or guardian of a child who acquires recreational services for the child cannot legally agree to exclude, restrict or modify the child's rights.
Agreement to exclude, restrict or modify your rights:
I agree that the liability of AAG for any personal injury that may result from the supply of the recreational services that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) is excluded.
Definitions:
“Recreational services” are services that consist of participation in a sporting activity or similar leisure-time pursuit; or
any other activity that involves a significant degree of physical exertion or risk and is undertaken for the purposes of recreation, enjoyment or leisure.
“Personal injury” is bodily injury and includes mental and nervous shock and death.
Further information: Further information about your rights can be found at https://www.cbs.sa.gov.au/
For recreational services or activities provided in Northern Territory:
For recreational services to which the Australian Consumer Law (Northern Territory) applies:
By making a booking and agreeing to be bound by this Agreement, I agree that the provisions of Part 3.2, Division 1, subdivision B of the Australian Consumer Law (NT) do not apply to the services provided to me, and AAG incurs no liability with respect to death or personal injury for a failure to comply with a guarantee under that sub-division in relation to supply of these recreational services. By agreeing to be bound by this Agreement, I acknowledge that I have been made aware of the general effect of this exclusion, restriction or modification, have had a reasonable opportunity to consider whether or not to enter into this contract on that basis and have decided to enter into the contract.