Waiver, Release, Discharge and Indemnity
For those guests visiting or staying at El Questro.
This document contains provisions which affect the legal rights of any visitor to El Questro.
Please read it carefully.
If you do not understand any part of it, you should obtain independent legal advice before visiting El Questro.
In consideration for, and as a condition of, being permitted access to the Premises and participation in the Activities, now and in at any time in the future, you:
1. represent and warrant to the Occupier that:
(a) you are over 18 years old;
(b) you are medically fit to perform, engage in or assist with the Activities;
(c) you have adequate experience and am competent to safely engage in the Activities;
(d) you have not relied on any representations or warranties that may have been made by any of the Occupier or its Representatives in relation to the Premises or the Activities;
(e) you have taken, or had the opportunity to take, independent legal advice as to the nature, effect and extent of this document;
(f) you have authority to, and do hereby, enter into this agreement on your own behalf and on behalf of all minors accompanying me.
2. unconditionally and irrevocably acknowledge and agree that:
(a) the Occupier and its Representatives are in no way responsible for any Claims or Liabilities for:
(1) any injury, illness or death that you may sustain; or
(2) any loss, damage or theft of your property;
(b) the Occupier may, in its sole discretion:
(1) refuse to permit you access to the Premises;
(2) require you to leave the Premises at any time;
(3) refuse to permit you to engage in the Activities;
(4) require you to cease the Activities; or
(5) change or vary the conditions of entry to the Premises or participation in the Activities;
(c) the Activities are inherently dangerous activities and are “dangerous recreational activities” within the meaning of the Civil Liability Act 2002 (WA);
(d) the risks associated with participating in the Activities include, but are not limited to, damage to property, injury, illness or death to participants (including yourself);
(e) you have had the opportunity to consider the risks associated with participating in the Activities and freely and voluntarily accept:
(1) all of the risks (foreseeable and unforeseeable) that may result from you participating in the Activities; and
(2) any and all consequences which may result from those risks (whether foreseeable or unforeseeable);
(f) all Implied Warranties are excluded to the full extent permitted by law;
(g) to the extent any Implied Warranties cannot be excluded, liability for any breach of any Implied Warranty is limited to:
(1) in the case of any Implied Warranty relating to goods:
(A) the replacement of those goods or the supply of equivalent goods; or
(B) the cost of replacing those goods or supplying equivalent goods; and
(2) in the case of any Implied Warranty relating to services:
(A) the re-supply of those services; or
(B) the cost of re-supply of those services;
(h) you have read, understood and agree to comply with all rules, regulations, procedures, instructional material and other information provided to you or posted at the Premises or relating to the Activities;
(i) while on the Premises or participating in the Activities you will, at all times, follow:
(1) the lawful directions of any of the Occupier and any of its Representatives; and
(2) any signage displayed on or in relation to the Premises;
(j) if you observe any uncontrolled hazard or risk, you will immediately cease any actions you undertake contributing to that hazard or risk, take those steps which are available to you to reduce the hazard or risk and inform the nearest Representative of the Occupier of the hazard or risk and the steps taken by you;
(k) to the fullest extent permitted at law, you waive, release and discharge each of the Occupier and its Representatives from and against any and all Claims or Liabilities which you have, or may at any time have, arising out of or in relation to the Premises 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 the Occupier or its Representatives;
(l) you agree to indemnify, and keep indemnified, each of the Occupier and its Representatives from and against any Claims and Liabilities, whether direct or indirect, arising out of or in relation to:
(1) you being on the Premises;
(2) you observing or participating in the Activities (whether on the Premises or elsewhere); and
(3) you acts or omissions while on the Premises or observing or participating in the Activities;
(m) you covenant not to sue or commence any proceedings against any of the Occupier or its Representatives in respect of any loss or damage arising out of or relating to any loss, damage, injury or illness you may sustain (whether to you personally or to any of your property) which occurs on the Premises or in any way relates to the Activities;
(n) while on the Premises, you will:
(1) abide all laws;
(2) not introduce or create any hazards to persons, property, flora or fauna; and
(3) not, by your acts or omissions, breach any terms of the Pastoral Lease;
(o) you intend to be immediately bound by the terms recorded in this document and for it to be binding on your executors, administrators and assigns;
(p) you grant your permission and consent to the Occupier and its Representatives to:
(1) film, photograph or otherwise record by any means you and your participation in the Activities and to display, use, produce, reproduce, alter, view, broadcast or otherwise utilize the same by whatever means they consider appropriate in their sole discretion and that you shall not be entitled to any compensation in respect of the same;
(2) use, produce, reproduce, alter, sell or distribute any audio, photographs, images, video, motion pictures, recordings or any other depiction of any kind of you, your likeness or of your participation in the Activities by whatever manner they consider appropriate in their sole discretion and that you shall not be entitled to any compensation in respect of the same; and
(3) use, produce, reproduce, alter, view or broadcast by any means, your name, nickname, image, likeness, voice, photograph, signature facsimile, and biographical information in connection with the Activities without compensation of any kind to you;
(q) the Occupier and its Representatives shall have the unlimited right throughout the world to copyright, use, reuse, publish, republish, broadcast and otherwise distribute depictions of or information about you and all or any portion of the Activities in which you may appear on any and all radio, network, cable and television programs and in any print materials and in any other format or media (including electronic media) now known or hereinafter devised in perpetuity and without compensation to you; and
(r) this document is governed by the laws of Western Australia. You submit to the non-exclusive jurisdiction of the courts of Western Australia in relation to anything arising out of this document including any disputes that may arise as a result of your participation in the Activities or attendance at the Premises.
In this document:
Activities means the use of the Premises, facilities and equipment at or on the Premises for the purpose of sport, enjoyment, relaxation, accommodation or leisure of any description whatsoever and 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.
Implied Warranties means all warranties of any nature in relation to the Premises or 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.
Occupier means Delaware North El Questro Pty Ltd and its related bodies corporate and related entities as defined by the Corporations Act 2001 (Cth).
Pastoral Lease means pastoral lease N50404.
Premises mean the land identified by the Pastoral Lease.
Representatives mean the agents, officers, contractors or employees of the Occupier.
The singular includes the plural and the plural includes the singular.
A provision of this document shall not be construed to the disadvantage of a party merely because that party or its representatives were responsible for the preparation of this document or its inclusion in this document.
If anything in this agreement 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 deed remains in full force and effect in all other jurisdictions.