- You acknowledge that the programs and activities involved in a Course, and the Course itself, are a recreational activity that involves risk. Courses include various adventurous outdoor activities, requiring physical and mental effort, in varied and sometimes adverse weather conditions and often in rural or remote geographic locations and/or in rough terrain. You acknowledge that the risks include risk of physical injury or death, illness, inducement orexacerbation of medical conditions, mental harm or distress, and damage to your property. You acknowledge that your health, ability and conduct will also affect such risks. You also acknowledge that because certain activities will be provided in rural or remote geographic locations, there is risk that there may be less or slower access to medical, doctor or ambulance services, or evacuation or search services.
- You agree that you engage in a Course at your own risk.
- In the event that these Terms constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law, you may be entitled to statutory consumer guarantees. Except to the extent permitted by law, nothing in these Terms exclude, restrict or modify those consumer guarantees in circumstances where they apply.
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To the extent permitted under the Australian Consumer Law, and subject to clause 7(e), we limit our liability for a breach of any guarantee or warranty imposed under the Australian Consumer Law, to one or more of the following at our election:
- in the case of products, to replacement of the products or supply of equivalent products, repair of the products; payment of the cost of replacing the products or of acquiring equivalent products; or payment of the cost of having the goods repaired; and
- in the case of services, to supply of the services again; or payment of the cost of having the services supplied again.
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To the extent permitted under section 139A of the Competition and Consumer Act, and to the extent that AusJourneyprovides a “recreational service” (as defined under that Section)to you, AusJourneyexcludes application of the guarantees under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law, the exercise of any rights conferred under the provisions of that Subdivision, and excludes liability for failing to comply with a guarantee under that Subdivision for:
- death;
- physical or mental injury (including aggravation, acceleration or recurrence of such injury);
- the contraction, aggravation or acceleration of a disease;
- 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:
- that is or may be harmful or disadvantageous to you;or
- that may result in harm or disadvantage you or the community.
This exclusion of liability does not apply where significant personal injury is caused by the reckless conduct of AusJourneyin accordance with s139A of the Competition and Consumer Act.
- To theextent permitted under the Civil Liability Act NSW, and to the extent that AusJourneyprovides you with “recreation services” and a Course (and/or its activities) is a “recreational activity” as defined under that Act, AusJourneyexcludes all liability (including any Loss or Claim) arising from or in connection with a breach of any express or implied warranties and conditions that our services will be provided with reasonable care and skill, regardless of whether the claim is brought in tort (including in negligence), in contract, under statute or otherwise. In the event that a Court deems that s139A of the Australian Consumer Law applies to this exclusion clause, then the exclusion of liability in this clause will not apply where significant personal injury is caused by the reckless conduct of AusJourneyin accordance with s139A of the Australian Consumer Law.
- In the event that the Civil Liability Act WA applies to these Terms, your participation in the Course and/or otherwise tothe services we provide you, to the extent permitted under Section 5J of the Civil Liability Act WA, and to the extent that AusJourneyprovides you with “recreation services” and a Course (and/or its activities) is a “recreational activity” as defined under that Act, AusJourneyexcludes all liability (including any Loss or Claim) arising from or in connection with a breach of any express or implied warranties and conditions that our services will be provided with reasonable care and skill, regardless of whether the claim is brought in tort (including in negligence), in contract, under statute or otherwise. This exclusion will not apply if AusJourneycommits reckless conduct as set out in section 5J(6) of the Civil Liability Act WA.
- In the event that the Australian Consumer Victoria applies to these Terms, your participation in the Course, and/or otherwise to the services we provide you, then under the Australian Consumer Law Victoria, several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form 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.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the supplier 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 the supplier under the Australian Consumer Law and Fair Trading Act 2012 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.
NOTE: 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 supplier's part."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
AusJourney Pty Ltd10PO Box 413, Katoomba NSW 2780ABN: 18 638 149 032consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
- Subject to clauses 7(e) to (h), and to the extent permitted by law, you release AusJourneyfrom and against any Loss or Claim arising from or in connection with your participation in a Course, or our negligence.
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Subject to clauses 7(e) to (h), you indemnify AusJourneyfrom and against all Loss or Claims incurred by AusJourneyarising from or in connection with:
- your participation in a Course;
- your breach of these Terms;
- your negligent act or omission, including but not limited to providing inaccurate or incomplete information, or omitting information, in the Medical Declaration.
- Nothing in clauses 7(i) and (j) limits or excludes liability of AusJourneyfor losses, damages or expenses arising as a result of the reckless conduct of AusJourney, andnothing in this clause 7 excludes any liability of AusJourneythat cannot be excluded under an applicable law.
