Waiver and Release of Liability
This WAIVER AND RELEASE OF LIABILITY (“Agreement”) dated this day of ,
BETWEEN:
of (“Participant”)
AND:
OCEAN EARTH RETREATS PTY LTD ACN 681 645 876 of c/o – WCA Chartered Accountants, 62 Woodlark Street, Lismore NSW 2480 (“Ocean Earth Retreats”).
IN CONSIDERATION OF the covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to the Agreement agree as follows.
1. The Participant acknowledges that they are attending a retreat offered by Ocean Earth Retreats (“Retreat”) during which they will participate in yoga, surfing, stand up paddle boarding, snorkelling, ocean swimming and other similar activities (“Activities”). The Participant recognises that the Activities require physical exertion that may be strenuous and may cause physical injury and that they may be exposed to certain risks including but not limited to physical hazards, unpredictable and sometimes dangerous surf and weather conditions and actions of other people and things in and near the water. The Participant further acknowledges and understands that they are attending the Retreat and participating in the Activities in a third world Country where access to medical assistance and care is limited. The Participant warrants that they are fully aware of the risks and hazards involved in attending the Retreat and participating in the Activities.
2. The Participant acknowledges that the instructors from Ocean Earth Retreats are not medically trained and are not qualified to assess if the Participant is in good physical condition or physically capable of attending the Retreat or participating in the Activities without risking their health, safety or comfort. The Participant warrants that they do not have any physical limitations, medical ailments or any physical or mental disabilities that would limit or prevent them from attending the Retreat or participating in the Activities. The Participant understands that it is their responsibility to consult with a physician prior to and regarding their attendance at the Retreat and participation in the Activities and any overseas travel precautions. If required, the Participant will obtain a medical examination and clearance. The Participant acknowledges that Ocean Earth Retreats has agreed to enter into this Agreement in reliance of these warranties. The Participant agrees to inform Ocean Earth Retreats in writing of any health-related issues they have that may affect them whilst attending the Retreat or participating in the Activities.
3. The Participant acknowledges that if they are pregnant, they will take all necessary steps to ensure they receive clearance from their doctor and health care provider to attend the Retreat and participate in the Activities. The Participant asserts that they are of fit health to attend the Retreat and participate in the Activities and agrees to alert all teachers whose sessions they participate in that they are pregnant.
4. Whilst attending the Retreat, the Participant will be undertaking activities which are run through independent third parties (“Third Party Service Provider”). These activities include, but are not limited to, surf coaching, massages, fast boat transfers, ocean swimming, snorkelling, car transfers, boating and/or yacht cruises. The Participant understands and agrees that Ocean Earth Retreats will not be held responsible for the actions or negligence of this Third Party Service Provider and for any personal injury (including injury resulting in the death of the Participant) which has been or may be sustained as a consequence of this Third Party Service Provider.
5. The Participant acknowledges that this Agreement pertains to the provision of recreational services (as defined by the Australian Consumer Law (the ‘Act’)), and, as such, the provisions of Section 60 and 61 of the Act and any similar State legislation (which provide for an implied warranty that services be rendered with due care and skill and that any material supplied in connection with those services will be reasonably fit for purpose) can be excluded, and are excluded from this Agreement in so far as they relate to liability for death, physical or mental injury caused by the Participant’s attendance at the Retreat and/or participation in the Activities.
6. In consideration of being permitted to attend the Retreat and participate in the Activities, to the extent permitted by the law, the Participant:
a. releases and forever discharges Ocean Earth Retreats, its owners, directors, officers, employees, agents, assigns, legal representatives and successors from all manners of actions, causes of action, debts, accounts, bonds, contracts, claims and demands for and by reason of personal injury, including injury resulting in the death of the Participant, which has been or may be sustained by the Participant as a consequence of the Participant’s attendance at the Retreat or participation in the Activities; and
b. agrees to indemnify and hold harmless Ocean Earth Retreats, its owners, directors, officers, employees, agents, assigns, legal representatives and successors from all claims arising because of the Participant’s attendance at the Retreat and participation in the Activities.
7. In further consideration of being permitted to attend the Retreat and participate in the Activities, the Participant agrees to assume full responsibility for any risks, injuries or damages, known or unknow, which the Participant might incur as a result of attending the Retreat and/or participating in the Activities including all travel and any/all activities undertaken with the Ocean Earth Retreats group or as an individual at the accommodation and facilities provided.
8. The Participant understands that it will not be able to attend the Retreat nor participate in the Activities unless the Participant signs this Agreement.
9. The Participant acknowledges that they are required to have a current and comprehensive travel, medical and liability insurance policy to attend the Retreat and participate in the Activities. This insurance policy must cover the Participant for all adventure sport activities, medical emergencies, property damage and theft and trip cancellation. The Participant undertakes to provide Ocean Earth Retreats with a copy of their Certificate of Currency of Insurance within one week of booking or at least 90 days prior to the start date of the Retreat, whichever is the later.
10. The Participant has been given the opportunity and has been encouraged to seek independent legal advice prior to signing this Agreement. The Participant hereby acknowledges and agrees that they have carefully read this Agreement, that they fully understand its contents, and that they have freely and voluntarily executed this Agreement.
11. The Participant acknowledges that by signing this Agreement, it agrees to be forever prevented from suing or otherwise claiming against Ocean Earth Retreats for any injury (including injury resulting in the death of the Participant) that it may sustain while attending the Retreat or participating in the Activities.
12. The Participant acknowledges that they have received a copy of the Ocean Earth Retreats Terms and Conditions and confirms that they have read, fully understood and agree to accept and adhere to such Terms and Conditions.
13. This Agreement will be governed and construed in accordance with the laws of New South Wales.
EXECUTED as an agreement by
SIGNED by
……………………………………………….
Name of Guest
in the presence of:
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Signature of Guest
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Name of Witness
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Signature of Witness
EXECUTED for and on behalf of OCEAN EARTH RETREATS PTY LTD ACN 681 645 876 in accordance with Section 127(1) of the Corporations Act 2001:
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Signature of Director
EDWINA FRANCES BLACK
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Name of Director
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Signature of Director
KATHARINE FIONA WRIGHT
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Name of Director