Waiver

WAIVER, RELEASE, DISCHARGE AND INDEMNITY

This document contains provisions which affect the legal rights of the Customer. The Customer has read and understood the disclosure of risks set out in this Waiver, and voluntarily accepts those risks and agrees to be bound by this Waiver. Where the Customer constitutes more than one person, each person shall be jointly and severally bound by this Waiver.  Subject to the foregoing, this Waiver is between Dwellingup Adventures and the Customer and applies to the Customer at all times whilst participating in the Activities. In consideration for and as a condition of being permitted to participate in the Activities, the Customer agrees to this Waiver.

1. The following definitions apply:

“Activity and Activities” means any tour, event, attraction, services or equipment provided by Dwellingup Adventures for the purpose of enjoyment, accommodation, relaxation or leisure of any description whatsoever and includes any incidental activities thereto.

“Claim” means any claim, allegation, debt, cause of action, liability, proceeding, suit or demand of any nature and whether present or future, actual or contingent, fixed or unascertained and arising at law, in equity, under statute or otherwise.

“Booking” means booking the Activity.

“Customer” means the person or persons who made the Booking, and includes all persons included in the Booking.

“Dwellingup Adventures” means Misty Forest Pty Ltd trading as Dwellingup Adventures.

“Implied Warranties” means all warranties of any nature in relation to the Activities which are implied by law (whether pursuant to the Competition and Consumer Act 2010 (Cth) or otherwise).

“Liabilities” mean any and all liabilities, debts or obligations, whether actual or contingent, present or future, quantified or unquantified or incurred jointly or severally with any other person.

“Representatives” means the agents, directors, officers, contractors, volunteers or employees of Dwellingup Adventures.

“Waiver” means this Waiver, Release, Discharge and Indemnity.

2. The Customer acknowledges and agrees that, where other persons (including minors, for example school children) accompany the Customer, or join with the Customer in the Activity, or join in the Activity under the Customer’s supervision (actual or implied), the Customer accepts and agrees to be bound by this Waiver for and on behalf of the Customer and each other person who accompanies or joins in the Activity with or under the supervision of the Customer. Where such other persons are minors, the Customer acknowledges and agrees that the Customer:

2.1 has the consent of the minor’s parent or guardian for the minor to participate in the Activity; and

2.2 has and maintains throughout the Activity, the legal right to act for, direct, represent and be in charge of the minor child or children; and

further, that the Customer is and remains responsible and liable (to the extent that the law allows) for such minors, including in relation to personal injury or death or damage to property, whilst engaged in the Activity.

3. The Customer represents and warrants that it:

3.1          is over 18 years old (other than any minors accompanying the Customer);

3.2          is medically fit to perform, or engage in the Activities, and that all minors are;

3.3          does not have any possible relevant pre-existing medical, physical or mental conditions which may compromise the Customer’s ability to undertake the Activities;

3.4          is competent to safely engage in the Activities;

3.5          has not relied on any representations or warranties that may have been made by Dwellingup Adventures or its Representatives in relation to the Activities;

3.6          has taken, or had the opportunity to take, independent medical, legal and other relevant advice as to the nature, effect, meaning and extent of this Waiver; and

3.7          that clauses 3.2, 3.3 and 3.4 apply to all minors accompanying the Customer;

3.8          is lawfully responsible for any minors within the care of or accompanying the Customer

3.9          has authority to, and does hereby, enter into this Waiver on the Customer’s own behalf and on behalf of all minors accompanying the Customer.

4. The Customer acknowledges the risks associated with participating in the Activities include, but are not limited to:

4.1          loss or damage to property, injury, illness or death;

4.2          slipping and falling, roughness of paths, steep ascents and descents, difficult and dangerous terrain, collisions with fixed objects and or other participants, falling off objects;

4.3          attack or injury from wildlife, snake bites, insect bites, harm caused by marine creatures (including bites);

4.4          polluted or contaminated water, dangerous or inclement weather conditions, bush fires, contracting illnesses from contact with objects and surfaces;

4.5          over-exertion, heart attack, panic, hyperventilation, drowning, air expansion, decompression sickness;

4.6          being cut or struck by a canoe while in the water, entering and exiting the water, boarding or disembarking canoes;

4.7          being struck by a bike, mounting or disembarking a bike;

4.8          limited mobile telephone reception and access to medical facilities and assistance;

4.9          the behaviour and acts or omissions of other participants;

4.10      equipment failure and improper or inadequate equipment maintenance;

4.11      improper or inadequate instruction or supervision regarding the Activities or use of Dwellingup Adventures’ facilities and equipment; and

4.12      first aid, emergency treatment, safety rescues or services rendered or failed to be rendered by Dwellingup Adventures or its Representatives.

5. The Customer acknowledges that the Activities may be inherently dangerous or a “dangerous recreational activity” within the meaning of the Civil Liability Act 2002 (WA).

6. The Customer is aware of the dangers associated with the consumption of alcohol, mind altering substances, drugs (including over the counter or prescribed medications) or other substances which may impair any judgment or physical ability or capacity to safely participate in the Activities and accepts full responsibility for any injury, loss or damage associated with the Customer’s consumption of alcohol, mind altering substances, drugs or other substances which impairs the Customer’s judgment, physical ability or capacity.

7. The Customer acknowledges that services may be supplied by a third party provider whereby Dwellingup Adventures has no control, and in such circumstances the Customer waives liability for actions and service standards in connection with these.

8. The Customer acknowledges and understands:

8.1 Dwellingup Adventures cannot guarantee that the Customer will not become infected with COVID-19; and

8.2 the risk of being exposed to and or infected by COVID-19 may result from the actions, omissions, or negligence of the Customer and others, including, but not limited to Dwellingup Adventures’ staff, other guests, venue staff and patrons; and

that the Customer:

8.3 will comply with all Dwellingup Adventures’ procedures in order to assist with the prevention of virus spread while participating in the Activities;

8.4 is following all Government and public health authority recommended guidelines.

9. The Customer unconditionally and irrevocably acknowledges and agrees that:

9.1 To the fullest extent permitted at law, Dwellingup Adventures and its Representatives are not responsible for any Claims or Liabilities for:

• any injury, illness or death of any person;
• any injury, illness or death that the Customer or minor may sustain; or
• any loss, damage or theft of property.

9.2 Dwellingup Adventures may, in its sole discretion:

• refuse to permit the Customer or any minor access to the Activities;
• require the Customer or any minor to leave the Activities at any time;
• refuse to permit the Customer or any minor to engage in the Activities; or
• change or vary the conditions of participation in the Activities.

9.3 Dwellingup Adventures and its Representatives have taken all steps, so far as is reasonably practicable:

• to not put at risk the health and safety of the Customer or minor; and or
• to minimise any risk to the health and safety of the Customer or minor.

10.The Customer has had the opportunity to consider the risks associated with participating in the Activities and freely and voluntarily accepts:

10.1 all of the risks (foreseeable and unforeseeable) that may result from the Customer participating in the Activities;

10.2 any and all consequences which may result from those risks (whether foreseeable or unforeseeable); and

10.3 that all Implied Warranties are excluded to the fullest extent permitted by law.

11. To the extent any Implied Warranties cannot be excluded, liability for any breach of any Implied Warranty is limited:

11.1 in the case of any Implied Warranty relating to goods, to the replacement of those goods or the supply of equivalent goods or the cost of replacing those goods or supplying equivalent goods; and

11.2 in the case of any Implied Warranty relating to services, to the re-supply of those services or the cost of re-supply of those services.

12. The Customer has read, understood and agrees to comply with all rules, regulations, procedures, instructional material and other information provided to the Customer or published in relation to the Activities.

13. While participating in the Activities the Customer will, at all times, follow the lawful directions of Dwellingup Adventures or any of its Representatives and any signage displayed at or in relation to the Activities.

14. If the Customer observes any uncontrolled hazard or risk, the Customer will immediately cease any act the Customer undertakes contributing to that hazard or risk, take those steps which are available to the Customer to reduce the hazard or risk and inform the nearest Representative or Dwellingup Adventures of the hazard or risk and the steps taken by the Customer.

15. To the fullest extent permitted at law, the Customer waives, releases and discharges Dwellingup Adventures and its Representatives from and against any and all Claims or Liabilities which the Customer has, or may at any time have, arising out of or in relation to Dwellingup Adventures and or the Activities. This waiver, release and discharge extends to all acts, omissions, defaults, failures or errors on the part of all or any of Dwellingup Adventures and or its Representatives (including in relation to COVID-19).

16. To the fullest extent permitted at law, the Customer agrees to indemnify, and keep indemnified, each of Dwellingup Adventures and or its Representatives from and against any Claims and Liabilities, whether direct or indirect, arising out of or in relation to the Customer observing or participating in the Activities and the Customer’s acts or omissions while participating in the Activities.

17. The Customer covenants not to sue or commence any proceedings against any of Dwellingup Adventures and or its Representatives in respect of any loss or damage arising out of or relating to any loss, damage, injury or illness the Customer may sustain (whether to the Customer personally or to any of the Customer’s property) which occurs whilst participating in or in any way relates to the Activities.

18. While participating in the Activities, the Customer will:

18.1 abide by all laws;

18.2 not introduce or create any hazards to persons, property, flora or fauna; and

18.3 not, by the Customer’s acts or omissions, breach any terms of this Waiver.

19. The Customer acknowledges that the Activities are located at a variety of different venues which are subject to their own risks for which Dwellingup Adventures and any Representatives have no control over.

20. The customer is responsible for all loss of, and/or damage to equipment that is not considered ‘wear and tear’ by Dwellingup Adventures. Damage that may be charged for includes, but is not limited to:

20.1 For bikes; bent handlebars, bent or broken levers, frame damage, buckled rims, broken spokes, bent or broken hangers and derailleurs and bent or broken saddles.

21. If anything in this Waiver is or is determined to be unenforceable, illegal, voidable or void in a jurisdiction then it is severed for that jurisdiction and the rest of this document remains in full force and effect in all other jurisdictions.

22. This Waiver is governed by and shall be construed in accordance with the laws of the State of Western Australia, the parties submitting to the exclusive jurisdiction of the Courts of Western Australia for determination of any dispute claim or demand.

• The Hirer is responsible for all loss or damage to the bike and any other equipment provided hereunder which may be made during the period of hire. Damage not considered normal wear and tear, bent handlebars, broken levers, frame damage, buckled rims, broken spokes, broken derailleurs, broken saddles.
• Flat tyres are considered normal wear and tear and incur no cost. The Hirer must ensure the bike is not continued to be ridden as rim and tyre damage will occur, rim and tyre damaged will not be considered normal wear and tear. Hirers may hire a tool kit and self-repair, return the bike to point of hire for repair. We may also be able to provide track side assistance for flat tyres.
• Refunds are not provided because the Hirer has terminated the hire period early.
• The Operator requires that all children have the consent of parent/guardian to use the equipment.
• Hirers are bound by State Laws in regard to consuming alcohol and being in control of a vehicle.
• The bikes are not equipped with lights and are only to be used during daylight hours.
• Bike helmets are supplied with the hire. The wearing of helmets is compulsory under West Australian Law.
• The bike is designed to carry one person only. The Hirer shall not permit more than one person to ride the bike at once.
• Bikes must be transported using a suitable bike carrying device. Dwellingup Adventures reserves the right to determine a suitable bike carrying device.
• The Hirer agrees to pay any late fees.

• The Hirer is responsible for all loss or damage to the watercraft/equipment provided hereunder which may be made during the period of hire.
• Refunds are not provided because the Hirer has terminated the hire period early.
• The Operator requires that all children have the consent of parent/guardian to use the equipment.
• No alcohol is permitted to be carried or consumed in the watercraft.
• The watercraft are only to be used between the hours of sunrise and sunset, only on inland protected waters excluding Lake Argyle, The Ord River spillway and any white-water area. Under no circumstances are they to be used in ocean waters or more than 400 meters from any foreshore. (Department of Transport penalty $500.00)
• Buoyancy vests (PFDs Personal Flotation Devices) have been provided for each person.
• The watercraft is licensed to carry one/two/three persons. The hirer shall not permit more than one/two/three persons to be on board. (Department of Transport penalty $500.00)
• Misty Forest Pty Ltd trading as Dwellingup Adventures and Waypoints Café, Tours and Retail accepts no responsibility for loss of personal equipment during the hire period.
• Carrying watercraft is entirely at the risk of the vehicle driver. Misty Forest Pty Ltd trading as Dwellingup Adventures and Waypoints Café, Tours and Retail accepts no responsibility for damage to vehicles or other hirers property.
• The Hirer agrees to pay any late fees.
• UNDER NO CIRCUMSTANCES ARE WATERCRAFT TO BE TAKEN OVER THE BADEN POWELL WATERSPOUT (WATERFALL) OR DOWNSTREAM (WEST OF) NANGA BRIDGE.