Design and Lifestyle Tour
RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK,
AND INDEMNITY AGREEMENT (“Agreement”)
Byron Bay, March 2017
WARNING: READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE SIGNING
Release of liability, waiver of claims, assumptions of risk and indemnity agreements have held up in Australian courts. By signing this document, you are assuming physical, financial, and legal risks and that you will waive certain legal rights, including the right to sue, which have potential financial implications for yourself and/or your family should you be injured, incapacitated, or killed while participating on a Design and Lifestyle Tour activity.
Understand clearly that travel outside of your country of origin may have inherent risks.
To: In There Out There Pty Ltd (“Company”), and its directors, officers, employees, guides, agents, independent contractors, subcontractors, representatives, successors and assigns (all of whom are herein after collectively referred to as the ““Company””)
In consideration of the Releases allowing me to participate in trip activities as defined in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, I hereby agree as follows:
1.1 This Release of Liability, Waiver of Claims, Assumption of Risks and Indemnifying Agreement is hereinafter referred to as the “Agreement”.
1.2 Certain trip activities including, but not limited to, international travel, all travel or movement by aircraft, trains, water taxis, ferries, helicopters, or vehicles (including motorcycles or scooters), hotel stays and other accommodation, physical activities with and without instruction including hiking, swimming, walking tours (on a various terrain including uneven surfaces) consumption of meals and alcoholic beverages and all activities incidental to these listed. have risks of injury, including serious injury. I understand the nature of the Activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I further agree and warrant that if, at any time, I believe the conditions to be unsafe, I will immediately discontinue further participation in the Activity.
- Medical and health history
2.1 I will notify Company’s employees, staff, or volunteers if I suffer from any medical or health condition that may cause injury to myself, others, or may require emergency care during my participation.
- Assumption of Risks
3.1 I UNDERSTAND THAT I will not be permitted to participate in any trip activities unless I sign this Agreement, and that this Agreement applies to any ITOT trip activity whether occurring in the near future or distant future, and that the terms of the Agreement need not be brought to my attention each time I participate in any trip activities in order to be effective.
3.2 I UNDERSTAND THAT trip activities expose participants to known and unanticipated risks, dangers, and hazards, which could result in damage or loss to my own or other’s property, serious physical or emotional injury, paralysis, or death.
3.3 I UNDERSTAND THAT risks are inherent in the very nature of international travel and that participating in trip activities may present the following risks:
- a) loss or damage to personal property;
- b) death or personal injury as a result of a criminal act by third parties, terrorism, war, civil unrest, riot, detention by a foreign government, arrest, natural disaster, extreme weather conditions, exposure to polluted or contaminated water;
- c) personal injury or property damage caused by manmade or natural objects,
- d) property damage or personal injury caused by transport in trains, taxis, ferries, water and land vehicles;
- e) alteration, delay, extension or cancellation of the trip activities, due to natural disaster, civil unrest, war, terrorist attack, medical quarantine, or any other disturbances or causes, and including but not limited to guide’s sickness or inability to guide;
- f) unavailability of life-saving services or immediate medical attention;
- g) my own physical condition and my own acts or omissions,
- h) my own failure or that of other trip participants to follow instructions of guides;
- i) negligence of other trip participants; and
- j) becoming lost or separated from my party or guide.
3.4 I UNDERSTAND THAT risks may result from human error and negligence on the part of persons involved in preparing, organizing, and leading/guiding the Design and Lifestyle trip activities, which could result in a failure to safeguard or protect me from the risks, dangers and hazards of the trip activities. While I understand that the trip leaders/guides will make reasonable efforts to minimize exposure to known risks, I have a personal responsibility to make them aware at any point in which I question my knowledge of these procedures or my ability to participate in any activity.
3.5 I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS and dangers, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE “COMPANY” (as defined below) or others, and assume full responsibility for my participation. I acknowledge that these risks and dangers may be caused by my own actions or inactions, the actions or inactions of others participating in the Activity, the conditions in which the Activity takes place, of the negligence of Company. I FULLY ACCEPT AND ASSUME ALL SUCH RISKS AND ALL RESPONSIBILITY FOR LOSSES, COSTS, AND DAMAGES I incur as a result of my participation in the Activity.
- Release of Liability, Waiver of Claims and Indemnity Agreement
4.1 I HEREBY RELEASE, DISCHARGE, AND COVENANT NOT TO SUE Company, its sponsors, employees, staff, volunteers, other participants, owners and lessees of the premises on which the Activity is conducted (““Company””) FROM ALL LIABILITY, CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON MY ACCOUNT CAUSED, OR ALLEGED TO BE CAUSED, IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE “COMPANY” OR OTHERWISE, INCLUDING NEGLIGENT RESCUE OPERATIONS; and I further agree that if despite this Agreement, I, or anyone on my behalf, including my heirs, next of kin, executors, administrators and representatives in the event of my death or incapacity makes a claim against any of the “Company”, I WILL INDEMNIFY, SAVE, AND HOLD HARMLESS EACH OF THE “COMPANY” from any litigation expenses, legal fees, loss, liability, damage, or cost which may be incurred as the result of such claim. [initial here]
4.2 To hold harmless and indemnify the “Company” from any and all liability for any damage to property of or personal injury to any third party resulting from my participation or presence on any “Company” activity.
4.3 I acknowledge that I have been advised to purchase medical and travel insurance for myself prior to my trip and agree to hold harmless the “Company” from any and all non-scheduled or emergency expenses related to first aid or medical treatment and/or evacuation of myself in the event of an accident, injury, or illness, including but not restricted to: ambulatory care or hospital care. I acknowledge and agree that all expenses associated with non-scheduled or emergency medical treatments or rescue will be my responsibility and will not be covered by the “Company”.
- GOVERNING LAW.
5.1 This Agreement shall be governed by and construed in accordance with the laws of the state of Queensland, Australia, regardless of the conflict of laws principles thereof.
- DISPUTE RESOLUTION.
If a dispute is not resolved first by good-faith negotiation between the Parties to this Agreement, every controversy or dispute to this Agreement will be submitted to Resolution Institute. The arbitration shall occur within ninety-(90)-days from the date of the initial arbitration demand and shall take place in Brisbane, Queensland. The Parties shall cooperate in exchanging and expediting discovery as part of the arbitration process and shall cooperate with each other to ensure that the arbitration process is completed within the ninety-(90)-day period. The written decision of the arbitrators (which will provide for the payment of costs, including legal fees) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or decree in equity, as circumstances may indicate.
- ENTIRE AGREEMENT; AMENDMENT; HEADINGS.
This Agreement constitutes the entire agreement between the Parties with respect to its relationship, and supersedes all prior oral or written agreements, understandings and representations to the extent that they relate in any way to the subject matter hereof. Neither course of performance, nor course of dealing, nor usage of trade, shall be used to qualify, explain, supplement or otherwise modify any of the provisions of this Agreement. No amendment of, or any consent with respect to, any provision of this Agreement shall bind either party unless set forth in a writing, specifying such waiver, consent, or amendment, signed by both parties. The headings of Sections in this Agreement are provided for convenience only and shall not affect its construction or interpretation.
This Agreement may be executed in one or more counterparts (including by means of facsimile or electronic mail via portable document format), each of which shall be deemed an original but all of which together will constitute one and the same instrument.
Should any provision of this Agreement be or become invalid, illegal, or unenforceable under applicable law, the other provisions of this Agreement shall not be affected and shall remain in full force and effect.
The waiver or failure of Company to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
This Agreement may not be assigned by either Party without express written consent of the other Party.
- FORCE MAJEURE.
In the event that any cause beyond the reasonable control of either Party, including without limitation acts of God, war, curtailment or interruption of transportation facilities, threats or acts of terrorism, Commonwealth or State Department travel advisory, labour strike or civil disturbance, make it inadvisable, illegal, or impossible, either because of unreasonable increased costs or risk of injury, for either Party to perform its obligations under this Agreement, the affected Party’s performance shall be extended without liability for the period of delay or inability to perform due to such occurrence.
I confirm that I have been given the opportunity and have been encouraged to seek independent legal advice prior to signing this Agreement.
In entering into this Agreement I am not relying upon any oral or written representations or statements made by the “Company” with respect to the safety of trip activities other than what is set forth in this Agreement.
I have read and understood this Agreement prior to signing it, and I am aware that by signing this Agreement I am waiving certain legal rights which I or my heirs, next of kin, executors, administrators, assigns and representatives may have against the “Company”.
I ACKNOWLEDGE THAT I AM 18 YEARS OR OLDER, HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, HAVE SIGNED IT FREELY AND WITHOUT ANY INDUCEMENT OR ASSURANCE OF ANY NATURE, AND I INTEND IT TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW AND AGREE THAT IF ANY PORTION OF THIS AGREEMENT IS HELD TO BE INVALID, THE BALANCE, NOTWITHSTANDING, SHALL CONTINUE IN FULL FORCE AND EFFECT.