ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT FOR PARTICIPANTS
READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND MAY ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
Released Parties include: Trek2Health Ltd. (ABN 416 352 57046 ), respective directors, officers, employees, agents, contractors, insurers, spectators, equipment suppliers, and volunteers; VENUE and its directors, officers, employees, agents, contractors, insurers, equipment suppliers, and volunteers; all Trek2Health.org.au events , event sponsors, organisers, promoters, directors, officials, property owners, and advertisers; governmental bodies and/or municipal agencies whose property and/or personnel are used; and any or all parent, subsidiary or affiliate companies, licensees, officers, directors, partners, board members, supervisors, insurers, agents, equipment suppliers, and representatives of any of the foregoing including but not limited to Trek2Health Ltd. Releasing Parties include: the participant as well as participant’s spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on participant’s behalf.
Warning of Assumption of Inherent Risks
The TREK2HEALTH LTD events is meant to be a test of stamina, camaraderie, and mental grit that takes place on pre-designated routes. All participants will be walking signed routes with direct and indirect supervision. The events are not a race against other contestants, but rather a competition with oneself and the course. The object is to finish the route that you registered to complete. The route is part of the challenge and could involve exposure to the environment which might include extreme heat/or cold and rain. The activity includes but is not limited to crossing roads, dirt/gravel pathways and grass nature strips sometimes and traversing muddy areas. In summation, the TREK2HEALTH LTD event is an activity which presents a physical and mental challenge to participants.
You acknowledge that the TREK2HEALTH LTD event is a test of your physical and mental limits that carries with its inherent risks of physical injury. Inherent risks are risks that cannot be eliminated completely (without changing the nature of the TREK2HEALTH LTD event) regardless of the care and precautions taken by Trek2Health Ltd and the other Released Parties. You also understand that the TREK2HEALTH LTD event is strenuous and further acknowledge the accompanying risks and dangers generally present in such activities. You understand that these hazards may be due to the fact that the TREK2HEALTH LTD event is conducted under outdoor conditions and circumstances.
*All participants must carry a fully charged mobile phone for the purposes of calling (Medic mobile) for Trek2Health Ltd Pty support if required during the event.
**All participants to wear a day pack that contains a water supply and personal snacks.
*** All participants must follow the designated route and cannot leave the event at any stage without notifying Event Director (Event mobile).
You understand and acknowledge that the inherent risks include, but are not limited to:
1. contact or collision with persons or objects (e.g., collision with spectators or course personnel), contact with other participants, contact or collision with motor vehicles or machinery, and contact with natural or man-made fixed objects or obstacles);
2. encounters with obstacles (e.g., natural and man-made water, road and surface hazards, close proximity and/or contact with thick smoke and open flames, barbed wire, pipes);
3. equipment related hazards (e.g., broken, defective or inadequate competition equipment, unexpected equipment failure, imperfect course conditions);
4. weather-related hazards (e.g., extreme heat, extreme cold, humidity, ice, rain, fog);
5. inadequate first aid and/or emergency measures;
6. judgment- and/or behaviour-related problems (e.g., erratic or inappropriate co-participant behaviour, erratic or inappropriate behaviour by the participant, errors in judgment by personnel working the event; and
7. natural hazards (e.g. uneven terrain, rock falls, lightning strikes, earthquakes, wildlife attacks, contact with poisonous plants, marine life and/or ticks).
You further understand and acknowledge that any of these risks and others, not specifically named, may cause injury or injuries that may be categorised as minor, serious, or catastrophic. Minor injuries are common and include, but are not limited to: scrapes, bruises, sprains, nausea, and cuts.
Serious injuries are less common, but do sometimes occur. They include, but are not limited to: property loss or damage, broken bones, torn ligaments, concussions, exposure, heat-related illness, mental stress or exhaustion, infection, and concussions. Catastrophic injuries are rare; however, we feel that our participants should be aware of the possibility. These injuries can include permanent disabilities, spinal injuries and paralysis, stroke, heart attack, and even death. You understand that it is my responsibility to inspect the course, facilities, equipment, and areas to be used, and if You believe or become aware that any are unsafe or pose unreasonable risks, You agree to immediately notify appropriate personnel. By participating in the event, You are acknowledging that You have found the course, facilities, equipment, and areas to be used to be safe and acceptable for participation. You accept full and sole responsibility for the condition and adequacy of Your equipment.
You understand fully the inherent risks involved in the TREK2HEALTH LTD event and assert that You are willingly and voluntarily participating in the event. You have read the preceding paragraphs and acknowledge that:
1. You know the nature of the TREK2HEALTH LTD event;
2. You understand the demands of this activity relative to your physical condition; and
3. You appreciate the potential impact of the types of injuries that may result from the TREK2HEALTH LTD event.
You hereby assert that You knowingly assume all the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses, or expenses that You incur as a result of participating in the TREK2HEALTH LTD event. In short, you acknowledge that You are participating in the TREK2HEALTH LTD Event entirely at Your own risk.
Waiver of Liability for Ordinary Negligence: To the extent permitted by law You agree that under this agreement Trek2Health Ltd Pty and the other Released Parties shall be excluded from liability for ordinary negligence in the conduct of the TREK2HEALTH LTD event and the application of any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law and further Trek2Health Ltd Pty Ltd and the Released Parties shall be excluded from liability under any civil liability or consumer law applicable to the State in which this event is held subject to the exception that this exclusion of liability will not apply in circumstances where the conduct of Trek2Health Ltd Pty or its officers, servants or agents is reckless.
In consideration of being permitted to participate in the TREK2HEALTH LTD event, to the extent permitted by law, You (on behalf of the Releasing Parties) hereby forever waive, release, covenant not to sue, and discharge Trek2Health Ltd Pty and the other Released Parties from any and all claims, actions, suits, demands, losses and other liabilities in relation to any of death, physical or mental injury (including the aggravation, acceleration or occurrence of such an injury), the contraction, aggravation or acceleration of a disease or the coming into existence, the aggravation, acceleration or occurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to me or the community or that may result in harm or disadvantage to me or the community resulting from the INHERENT RISKS of the TREK2HEALTH LTD event or the ORDINARY NEGLIGENCE of Trek2Health Ltd (or other Released Parties) that I may have arising out of my participation in the TREK2HEALTH LTD event.
Indemnification Agreement: To the extent permitted by law, You hereby agree to hold harmless, defend, and indemnify (which for the avoidance of doubt includes defending and paying any judgment, court costs, investigation costs, legal fees on a solicitor and own client basis, and any other expenses incurred that relate to a breach of this contract) Trek2Health Ltd (and the other Released Parties) from any and all claims made by me (or any Releasing Party) arising from death, physical or mental injury (including the aggravation, acceleration or occurrence of such an injury), the contraction, aggravation or acceleration of a disease or the coming into existence, the aggravation, acceleration or occurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to me or the community or that may result in harm or disadvantage to me or the community due to my participation in the TREK2HEALTH LTD event. This applies both to claims arising from the inherent risks of the TREK2HEALTH LTD event or the ordinary negligence of Trek2Health Ltd Pty (or any Released Parties).
You further agree to hold harmless, defend, and indemnify (which for the avoidance of doubt includes defending and paying any judgment, court costs, investigation costs, attorney’s fees, and any other expenses incurred that relate to a breach of this contract) Trek2Health Ltd Pty Ltd (and the other Released Parties) against any and all claims of co-participants, rescuers, and others arising from my conduct in the course of my participation in the Trek2health Ltd events.
Venue and Jurisdiction: You understand that if legal action is brought, the appropriate state or federal trial court for the country of Australia in the State or Territory that the TREK2HEALTH LTD event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State or Territory in which the TREK2HEALTH LTD event is held shall apply.
Severability: You understand and agree that this Assumption of Risk, Waiver of Liability, and Indemnification Agreement is intended to be as broad and inclusive as is permitted by the State or Territory in which the TREK2HEALTH LTD event is held and that if any provision shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions. Furthermore, notwithstanding anything to the contrary contained within this Agreement, this Agreement will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any services pursuant to this Agreement of any provision of any Act of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia which by law cannot be excluded, restricted or modified.
Integration: You affirm that this agreement supersedes any and all previous oral or written promises or agreements. You understand that this is the entire Agreement between You and Trek2Health Ltd and cannot be modified or changed in any way by representations or statements by any agent or employee of Trek2Health Ltd . This Agreement may only be amended by a written document duly executed by all parties.
Mediation and Arbitration: In the event of a legal dispute, You agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation or otherwise unresolved within sixty (60) days of Trek2Health Ltd being notified by you of such issue, I agree that all disputes, controversies, or claims arising out of my participation in the TREK2HEALTH LTD event shall be submitted to binding arbitration in accordance with the applicable rules of the Australian Centre for International Commercial Arbitration then in effect. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English and the number of arbitrators shall be one (1). The cost of such action shall be shared equally by the parties.
Agreements for the Protection of Participants:
- I assert that I am in good health and in proper physical condition to safely participate in the TREK2HEALTH LTD event.
- I certify that I have no known or knowable physical or mental conditions that would affect my ability to safely participate in the TREK2HEALTH LTD event, or that would result in my participation creating a risk of danger to myself or to others.
- I acknowledge that Trek2Health Ltd recommends and encourages each client to get medical clearance from his/her personal physician prior to participation.
- I assert that I have not been advised or cautioned against participating by a medical practitioner.
- I understand that it is my responsibility to continuously monitor my own physical and mental condition during the Course, and I agree to withdraw immediately and to notify appropriate personnel if at any point my continued participation would create a risk of danger to myself or to others.
- I warrant that I am covered by private medical insurance.
- In the event of an injury to me that renders me unconscious or incapable of making a medical decision, I authorise appropriate Trek2Health Ltd personnel and emergency medical personnel at the event to make emergency medical decisions on my behalf (including, but not limited to CPR and AED).
- I authorise Trek2Health Ltd to secure emergency medical care or transportation (i.e., EMS) when deemed necessary by Trek2Health Ltd or emergency medical personnel.
- I agree to assume all costs of emergency medical care and transportation.
- I acknowledge that Trek2Health Ltd has instituted its rules for the protection of the participant and co-participants. I agree to familiarise myself with those rules and follow them throughout the event. I also recognise the authority of Trek2Health Ltd to halt my participation (and, if necessary, have me removed from the activity if my participation, conduct, or presence endangers myself or my co-participants.
- 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 (or accept the terms via the registration 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 consequences 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.
Acknowledgment of Understanding: I have read this Assumption of Risk, Waiver of Liability, and Indemnification Agreement and fully understand its terms. I understand that I am giving up substantial rights, including my right to sue. I further acknowledge that I am accepting the agreement freely and voluntarily, and intend my acceptance to be a complete and unconditional release of all liability due to ORDINARY NEGLIGENCE of Trek2Health Ltd (and other Released Parties) or the INHERENT RISKS of the activity, to the greatest extent allowed by the laws in force of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia in which the TM event is held.