VISITATION RISK WARNING, WAIVER AND INDEMNITY
: Tobruk Pastoral Co Pty Limited ACN 128 925 860 trading as Tobruk Sydney in its own right and as agent for Cowdroy Property Holdings Pty Ltd ABN 68 124 925 113 trading as Tobruk Sailing Charters
As part of your agreement with the Provider and in consideration for your visit to Tobruk Sydney and the Pittwater Sailing Cruise (if applicable), you and your guests listed below agree to the following terms and conditions.
means and includes any action, suit, proceedings, claim, demand, damage, penalty, cost or expense however arising from or in connection with any Recreational Activity but does not include:
i. a claim against the Provider by any person expressly entitled to make a claim under an insurance policy held by the Provider; or
ii. a claim against the Provider under any right expressly conferred by the Provider's constitution or regulations.
(b) Property means 5050 Old Northern Rd, Maroota, NSW known as Tobruk Sydney
(c) Recreational Activity means services provided by the Provider including a visit to the farm at the Property and participation in various activities at the Property and the Pittwater Sailing Cruise (if applicable).
(d) Risks means differing situations while you are undertaking an activity that could be harmful to you, including the actions, omissions or negligence of the Provider or third parties which may result in personal injury or death.
2. Risk Warning
The Provider (including its employees, contractors and agents) warns the Visitor (Visitor includes friends, associates and family accompanying the Visitor) whose signature appears below, and the Visitor acknowledges that:
(a) Undertaking the Recreational Activities can carry Risks.
(b) The Visitor is warned of the Risks associated with the Recreational Activities;
(c) Because of the Risks, the Visitor will be exposed to the possibility of injury even if he/she acts safely whilst undertaking the Recreational Activities.
(d) The Provider attempts to supervise activities during normal show periods however this, in no way, mitigates the Risks.
(e) By signing this form you agree that you undertake the Recreational Activities at your own risk and that these terms constitute a 'risk warning' in accordance with the Civil Liability Act 2002 (NSW).
(f) Liability that arises from the Risks or the breach of any express or implied warranty that any services will be provided by the Provider with due care and skill in relation to the Recreational Activities is hereby excluded.
The Recreational Activities are recreational services for the purposes of section 139A of Competition and Consumer Act (2010). You acknowledge and agree that in relation to the supply of the Recreational Activities to you, you waive your right to make any Claim in relation to, and the Provider excludes and will not be held liable for, your: (a) death, or (b) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury), or (c) contraction, aggravation or acceleration of a disease, or (d) the coming into existence or the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to you that (i) is or may be harmful or disadvantageous to you or to the community or (ii) that may result in harm or disadvantage to you or the community.
4. Limitation of Liability
To the fullest extent permitted by the laws of Australia, the Provider's liability arising under or in connection this agreement is limited to the re-supply of the products or services or the payment of the cost of re-supply of the products or services to you and the liability of each party to the other in contract, tort (including negligence, breach of statutory duty or misrepresentation) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with the visit to the Property shall be limited to one hundred percent (100%) of the monies paid or payable by you pursuant to these terms and conditions and no liability in tort, contract or otherwise will be actionable after twelve (12) months from the date of your visit to the Property.
5. Statutory Guarantees
Other than as allowed by the Competition and Consumer Act (2010) set out above, you are entitled to certain statutory warranties and protections pursuant to the Competition and Consumer Act (2010) and the Australian Consumer Law. Nothing in this waiver operates to exclude, restrict or modify any provision of the Competition and Consumer Act (2010), the Australian Consumer Law or any equivalent State or Territory legislation.
THE VISITOR UNDERSTANDS THAT THEY UNDERTAKE THE RECREATIONAL ACTIVITY AT THEIR OWN RISK AND THAT, BY PROCEEDING WITH THE BOOKING, ACKNOWLEDGES THEY HAVE READ AND ACCEPTED THIS RISK WARNING, WAIVER AND INDEMNITY, AND THAT IMPORTANT LEGAL RIGHTS ARE GIVEN UP.