ASSUMPTION OF RISK, EXCLUSION OF LIABILITY AND WAIVER
You are applying to join Lessons run by Byron Bay Kitesurfing, as specified below.
NOTE: These terms and conditions affect your legal rights. It is important that you read and understand them.
Byron Bay Kitesurfing is a supplier of "Recreational Services". These Recreational Services and associated facilities provided, include but are not limited to, power kiting, kite surfing, kite boarding, snow kiting, wing surfing, hydrofoiling, surfing in all types of weather conditions, including the hire of equipment involved in participating in the aforementioned activities, in Australia or overseas. At some events, it may also include transportation of you and/or your property or equipment in vehicles driven both on and off road, driven by Byron Bay Kitesurfing, its employees directors and agents. Events may take the form of clinics, camps, tours, day trips and events both on and off water, in Australia or overseas. Collectively, these are referred to in this agreement as “Recreational Activities”. In taking the Lessons, you will participate in Recreational Activities supplied by Byron Bay Kitesurfing.
The purpose of this agreement is to limit the liability of Byron Bay Kitesurfing, its employees, directors and agents, and to exclude liability for any property damage, personal injury or death to the participant in the Recreational Activities. By participating in Recreational Activities run by Byron Bay Kitesurfing, you agree that the supply of the Recreational Services and Recreational Activities and participation by you in them is subject to the following terms and conditions:
- Several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that Byron Bay Kitesurfing as the supplier of Recreational Services is required to ensure that the Recreational Services it supplies to you-
- are rendered with due care and skill; and
- are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and
- might reasonably be expected to achieve any result you have made known to the supplier.
- Byron Bay Kitesurfing as a supplier of Recreational Services is entitled to ask you to agree that these statutory guarantees do not apply to you. If you sign this form, you will be agreeing that your rights to sue Byron Bay Kitesurfing, including but not limited to under the ACL if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.
- The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the part of Byron Bay Kitesurfing. 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.
- You acknowledge that the Recreational Activities are dangerous with many inherent risks and hazards, including but not limited to crashing, falling off a kite, slipping, falling, losing balance, colliding with other persons and equipment, falling on hard or otherwise uneven surfaces, other people or their equipment and as a consequence property damage, personal injury (including spinal injury) and sometimes death can occur and you voluntarily assume and accept all such risks and waive the right to sue Byron Bay Kitesurfing for any property damage, personal injury or death in any whatsoever caused by or arising from participation in such activities.
- Byron Bay Kitesurfing, its employees, directors and agents are not liable to you, your dependants or your legal representatives for property damage, personal injury or death suffered by you due to the Recreational Activities not being supplied with due care and skill or not being reasonably fit for their purpose or for breach of any of the consumer guarantees applied by the ACL, or due to the negligence, breach of contract or statute or statutory duty by Byron Bay Kitesurfing.
- You release Byron Bay Kitesurfing, its employees, directors and agents from all actions, suits, claims, demands, costs and other liabilities in connection with or incidental to your use of the Recreational Activities whether caused by the negligence of Byron Bay Kitesurfing or otherwise.
- You agree to hold harmless and indemnify Byron Bay Kitesurfing, its employees, directors and agents in respect of all actions, suits, claims, demands, costs and other liabilities you may have against Byron Bay Kitesurfing in connection with or incidental to your use of the Recreational Activities.
- To the maximum extent permitted by law, but subject to the non-excludable consumer guarantees, in no event will Byron Bay Kitesurfing, or its employees, directors and agents be liable in respect of any claim for any direct or indirect or inconsequential loss or damage including without limitation personal injury, financial loss (such as loss of profits or use of capital or revenue or otherwise), property damage, or for any punitive, exemplary, special, incidental or consequential loss or damage whether such liability arises in contract, tort, equity, breach of statute or statutory duty or breach of any consumer guarantees.
- You warrant by participation in the Lesson and the Recreational Activities that you have appropriate skill to participate without creating risk to yourself or others and that you will ensure you participate in a manner which is commensurate and consistent with your skills and abilities.
- Where you are responsible for a person participating in Recreational Activities who is under the age of 18 years you agree to be bound by these conditions on their behalf and you will directly supervise them at all times. If you are not directly supervising them you warrant that they have appropriate skill and expertise to participate without creating risk to themselves or others and that they will participate in a manner which is commensurate and consistent with their skills and abilities.
- You warrant that you do not have any pre-existing medical or other conditions which might impair your ability to safely participate in the Lesson or Recreational Activities nor that would be impacted or exacerbated by your participation, and where you are participating with a person under 18 years of age or authorising their participation you warrant similarly on their behalf.
- You agree to pay the cost of and authorise Byron Bay Kitesurfing to take all steps it considers reasonably necessary to protect your welfare in the event of personal injury, including the administration of any emergency medical treatment and ambulance transportation.
- You must comply with all signs or other directions of Byron Bay Kitesurfing and it may suspend or cancel your access to the Recreational Activities in its absolute discretion for non-compliance with these conditions or for reckless or careless conduct.
- Byron Bay Kitesurfing reserves the right to photograph, videotape and/or record you and/or any person under 18 years of age participating in Recreational Activities with your permission and to use name, face, likeness, voice and appearance in connection with exhibitions, publicity, advertising and promotional materials without reservation or limitation.
- This agreement shall be governed by the laws of NSW, Australia.
- Any provision of this agreement which is held to be unenforceable is, where possible to be severed to the extent necessary to make the agreement enforceable and the rest of the agreement is not affected.