RECREATIONAL ACTIVITY RISK WARNING, ACKNOWLEDGEMENT, WAIVER AND RELEASE

DETAILS

I ('Participant')

1. I agree to abide by the rules of de Vaus Family Investments Pty Ltd trading as both  "Bike On" and also "By Earth and Ocean" (ACN 140090759) ('Service Provider') and acknowledge I have read and agree to all booking terms and conditions as listed on the website www.bikeon.com.au and www.byearthandocean.com.au or as otherwise provided to me from time to time (‘Terms and Conditions’).
2. Participation in bike riding and or kayak programs/tours  and/or the use of hire bikes, surfboards, body boards, kayaks and all associated equipment ('the Recreational Activities') supplied by the Service Provider involves significant risks, including the risk of personal injury and death. Particular risks (the ‘Risks’) include, but are not in any way limited to:
   1. Broken & fractured bones
   2. Exacerbation of pre existing medical conditions
   3. Complete and permanent paralysis
   4. Permanent catastrophic brain injury
   5. Permanent scaring and disfigurement
   6. Dangerous and harmful interaction with wildlife
   7. Death
3. Before you participate in the Recreational Activities, you should ensure that you are aware of, and properly understand, all the risks involved in the Recreational Activities, and that those risks will include any particular risks associated with any health condition or pre-existing disability from which you suffer. By participating in the Recreational Activities I acknowledge, agree and represent that I understand all risks associated with participating in the Recreational Activities, both known and unknown. I further agree and warrant that if at any time I believe conditions to be unsafe or beyond my ability to participate in safely, I will IMMEDIATELY DISCONTINUE further participation in the activity and notify the Service Provider immediately.
4. By signing this document, you acknowledge, agree and understand that you engage or participate in the Recreational Activities voluntarily and at your own risk in full knowledge of the Risks generally and particular Risks as described in Clause 2 above.
5. If signing this document as a parent, guardian or responsible person performing parenting responsibilities, you acknowledge and agree that you have explained to the participant that the Recreational Activities provided by the Service Provider may involve risks generally; and the Particular risks including described above.
6. By signing this document, you also acknowledge, agree and understand that the risk warning above constitutes a formal 'risk warning' for the purposes of the relevant legislation, including for the purpose of:
   1. Section 5M of the Civil Liability Act 2002 (NSW);
   2. Section 5I of the Civil Liability Act 2002 (WA);
   3. Section 48 of the Consumer Affairs and Fair Trading Act (NT);
   4. Section 43 of the Civil Law (Wrongs) Act 2002 (ACT);
   5. Section 15 - 20 of the Civil Liability Act 2002 (TAS);
   6. Section 31 - 39 of the Civil Liability Act 1936 (SA);
   7. Section 50 of the Wrongs Act 1958(VIC); and/or
   8. Section 13 - 19 of the Civil Liability Act 2003 (QLD).
7. Section 139A of Competition and Consumer Act, 2010 (Cth) permits the Service Provider of the Recreational Activities and associated services to ask you to agree that the statutory guarantees under the Australian Consumer Law(Cth) do not apply to you (or a person for whom or on whose behalf you are acquiring the services to engage in the Recreational Activities).
8. By signing this document, you acknowledge, agree and understand that, to the full extent permitted by law (including section 139A of the Competition and Consumer Act 2010 (Cth)):
   1. Your rights (or the rights of a person for whom or on whose behalf you are acquiring the services) to sue the Service Provider, its servants, employees, directors, coaches, teachers, affiliates, agents and trustees (the ‘Personnel’) in relation to the Recreational Activities if the Recreational Activities or associated services were not provided to you in accordance with any express or implied warranty or guarantee that the services will be provided with reasonable care and skill, are excluded, restricted or modified as set out below; and
   2. You (or the person for whom or on whose behalf you are acquiring the services) release the Service Provider and it’s Personnel, from all liability for a failure to comply with any express or implied warranty or guarantee that the services will be provided with reasonable care and skill.
9. By signing this document you acknowledge, agree and understand that if you provide any of the equipment provided to you by the Service Provider to a 3^rd party that you have explained to them that the Recreational Activities provided by the Service Provider may involve risks generally; and the Particular Risks including described above in Clause 2. Furthermore, you acknowledge, agree and understand that you take personal responsibility for any loss, injury or damage they or a 3^rd party may suffer as a result of their use of goods provided to you by the Service Provider
10. By signing this document, you agree to indemnify the Service Provider and its Personnel against all claims with regards to loss, injury, damage or harm in connection with your failure to comply with any and all instructions given by the Service Provider or its Personnel
11. By signing this document, you acknowledge, agree and understand the there is a degree of risk involved with the use of alcohol, illicit drug or other mind-altering medications. I agree I will not participate if under the influence of alcohol, illicit drug or other mind-altering medications. Furthermore, I and agree to indemnify the Service Provider and its Personnel against all claims with regards to loss, injury, damage or harm sustained while under the influence of alcohol, illicit drug or other mind-altering medications.
12. By signing this document, you acknowledge, agree and understand that I am responsible for the safe return of all equipment rented or otherwise under my control. Further I and agree to reimburse the Service Provider in full for any damage to or loss of any equipment rented from or supplied by the Service Provider
13. By signing this document, you acknowledge, agree and understand that many of the Recreational Activities provided by the Service provider and it’s Personnel are unsupervised by the Service Provider and their Personnel. Furthermore, I and agree to indemnify the Service Provider and its Personnel against all claims with regards to loss, injury, damage or harm sustained in connection to any unsupervised Recreational Activities
14. By signing this document, you acknowledge, agree and understand that if I sustain any injury or the Service Provider or their Personnel believe medical assistance, evacuation or first aid are required they will, at their sole discretion, organise this and I agree to pay all cost associated with this.
15. By signing this document, you acknowledge, agree and understand that the Service Provider and it’s Personnel may take photographs of participants that will in many cases personally identify the participant and these photos may be used by the Service Provider for commercial purposes including but not limited to use on social medial platforms, printed marketing materials and the Service Provider’s website(s). Furthermore you acknowledge, agree and understand that no financial fee or any other consideration will ever be payable for the commercial use of these photos by the Service Provider. If you do not wish for photos of you to be used for these purposes you will notify the Service Provider prior to the event commencing
16. By signing this document, you acknowledge, agree and understand that, to the full extent permitted by law, the liability of the Service Provider and its Personnel in relation to recreational services and activities (as that term is defined in the Australian Consumer Law (Cth) and any similar state laws) for any:
    1. death;
    2. physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
    3. the contraction, aggravation or acceleration of a disease;
    4. 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:
       1. that is or may be harmful or disadvantageous to you or the community;
       2. that may result in harm or disadvantage to you or the community;
       3. that may be suffered by you (or a person for whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services or recreational activities is excluded.
17. By signing this document, to the full extent permitted by law, you (or the person for whom or on whose behalf you are acquiring the services) agree to waive and/or release the Service Provider and it's Personnel, from any claim, right or cause of action which you or your heirs, successors, executors, administrators, agents and assigns might otherwise have against the Service Provider, its servant and agents, for or arising out of your death or physical or mental injury, disease, loss and damage, or economic loss of any description whatsoever which you may suffer or sustain in the course of or consequential upon or incidental to your participation in the Recreational Activities, whether caused by the negligence of the Service Provider, its servant and agents, or otherwise.
18. By signing this document, you acknowledge, agree and understand that:
    1. The Service Provider will permit you to participate in the Recreational Activities, and provide you with the associated services, in part in consideration of you signing this document;
    2. The Service Provider may rely on this document in any proceedings commenced in any Court by me or by my heirs, executors and assigns;
    3. The laws of Queensland govern this document.
19. By Signing this document you acknowledge, agree and understand that the minimum legal age to ride an e-bike is 12 if supervised by an adult and 16 if unsupervised. Furthermore you acknowledge, agree and understand that once rented you will not allow any one prohibited by law from riding an ebike to ride any ebike provided by us.
    
20. By signing this document, you acknowledge, agree and understand that any advice given on where to use equipment is general in nature and can not and does not take into account your specific level of skill ability to use the equipment and that it is there hirers responsibility to assess the risks associated with the use of rental equipment in any location.
21. You do not have to agree to exclude, restrict or modify or waive your rights against, or release, the Service Provider, its servants and agents, from any claims by signing this document, however the Service Provider may refuse to allow you to participate in the Recreational Activities, or to provide you with the associated services, if you do not agree to exclude, restrict, modify or waive your rights against, or release, the Service Provider, its servants and agents, by signing this document. Even if you sign this document, you may still have further legal rights.
22. By signing this document you agree that the waivers and releases contained in this document apply for every visit you make to the Service Provider until such time as you withdraw or modify your consent in writing or the Service Provider modifies these terms with your consent by signing a new document. You will not be required to sign future waivers on the understanding that this waiver document shall apply to all your future participation in the Recreational Activities.

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