Waiver

RELEASE, WAIVER AND ASSUMPTION OF RISK AGREEMENT

 

PLEASE READ CAREFULLY. BY SIGNING THIS AGREEMENT YOU MAY PERMANENTLY WAIVE

CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION

FOLLOWING AN ACCIDENT, INJURY OR PROPERTY DAMAGE.

  1. Definitions

Activity” means kitesurfing and the use of the Equipment for kitesurfing or any other purpose or occurrence.

Equipment” means all kitesurfing equipment provided by The Kite Hub to the Member.

Member” means the person named in the attached Membership Form.

Membership” means the Member’s membership of The Kite Hub.

Released Parties” means The Kite Hub and its respective successors in title, associated companies or entities, insurance providers, agents, employees, contractors, representatives, assignees, officers, directors, members, or shareholders.

The Kite Hub” means The Kite Hub Pty Ltd (ACN 628 960 092).

Waiver Agreement” means this Release, Waiver and Assumption of Risk Agreement.

You” means only the Member when the Member is aged 18 years or older, or it means both the Member and the Member’s parent or legal guardian when the Member is under the age of 18 years, or any 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 the Member’s behalf.

  1. Risks of Activity Disclosure

You agree and understand that taking part in the Activity can be HAZARDOUS AND INVOLVES THE REAL RISK OF SERIOUS PHYSICAL INJURY AND/OR DEATH. You acknowledge that the Activity is inherently dangerous and fully realise the dangers of participating in the Activity and the impact of the types of potential injuries that could result. The risks and dangers of the Activity include, but are not limited to: water flow; tides; currents; wakes; drowning; entanglement; impacts; collisions with other participants and debris, obstacles, boards, devices, shoreline or other objects; watercraft and other manmade and natural objects; weather conditions; exposure to elements; slips and falls; equipment failure and/or defects; marine and other wildlife; operator error; acts omissions or negligence of the Released Parties; provision of first aid, medical treatment or other assistance or services by the Released Parties or others; mental distress from exposure to any of the above; and negligence of others. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY IS DANGEROUS AND INCLUDES OTHER RISKS. This notice is given as a risk warning pursuant to section 5I of the Civil Liability Act 2002 (WA). Having given this risk warning, the Released Parties will not be held liable for any liability, personal injury or death, however it may occur as set out below.

  1. Release, Indemnification, and Waiver

In consideration of the Member participating in the Activity, You agree as follows:

  • Release. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE, AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which You or the Member, have or which could be asserted on behalf of You or the Member in connection with the Member’s participation in the Activity, including, but not limited to claims of negligence, breach of warranty, and/or breach of contract.
  • Indemnification. You hereby agree to indemnify, defend and hold harmless the Released Parties from and against any and all liability, cost, expense or damage of any kind or nature whatsoever and from any suits, claims or demands, including legal fees on a lawyer client basis and expenses whether or not in litigation, arising out of, or in any way related to, Your or the Member’s participation in the Activity. Such obligation on the part of You shall survive the period of the Member’s participation in the Activity.
  • Equipment. You understand and agree that it is Your responsibility to inspect the 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 The Kite Hub. By participating in the Activity, You are acknowledging that You have found the facilities, equipment, and areas to be used or entered to be safe and acceptable for participation. You accept full and sole responsibility for the condition and adequacy of Your equipment as well as the Equipment.
  • Insurance and Physical Condition. You agree and understand that no medical or accident insurance will be provided to you by the Released Parties or any third party during Your participation in the Activity. You certify that you have sufficient health, accident, and personal liability insurance to cover any injury to You or another person or damage to any property that You may incur during the Activity. You acknowledge that the Activity requires significant physical exertion and that you are in good physical and mental health and not suffering from any condition or disease or disablement that could in any way affect your participation in the Activity.
  • Waiver. You agree and understand that there are dangers and risks associated with the participation in the Activity and the use of the Equipment and that INJURIES AND/OR DEATH may result from participating in the Activity (including, but not limited to the acts, omissions, representations, carelessness, and negligence of the Released Parties). By signing this Waiver Agreement or participating in the Activity, You recognise and accept that property loss, injury and death are all possible while or at any time following participation in the Activity. RECOGNISING THE RISKS AND DANGERS, YOU UNDERSTAND THE NATURE OF THE ACTIVITY AND VOLUNTARILY CHOOSE FOR THE MEMBER TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE PARTICIPATION IN THE ACTIVITY, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT, OR OTHERWISE.
  1. Minor Acknowledgment.

In the case of a Member under the age of 18 years (“Minor”), You as a parent or legal guardian acknowledge that You are not only signing this Waiver Agreement on Your behalf, but that You are also signing on behalf of the Minor and that the Minor shall be bound by all the terms of this Waiver Agreement. Additionally, by signing this Waiver Agreement as the parent or legal guardian of the Minor, the parent or legal guardian understands that he/she is also waiving rights on behalf of the Minor that the Minor otherwise may have. You as a parent or legal guardian agree that, but for the foregoing, the Minor would not be permitted to participate in the Activity. By signing this Waiver Agreement without a parent or legal guardian’s signature, the Member, under penalty of fraud, represents that he/she is at least 18 years of age. If signing as the parent or guardian of a Minor, signing adults represent that they are a legal parent or guardian of the Minor.

  1. Medical Care.

You authorise the Released Parties and/or their authorised personnel to call for or administer medical care for the Member or to transport the Member to a medical facility or hospital if, in the opinion of the Released Parties or such personnel, medical attention is needed. You agree to immediately pay all costs associated with such medical care and related transportation.

You further agree and understand: (a) You will not engage in any activities prohibited by any applicable laws, statutes, regulations and ordinances; (b) this Waiver Agreement shall be governed by the laws of Western Australia and any dispute or claim shall be subject to this jurisdiction; (c) this Waiver Agreement supersedes any and all prior contracts, arrangements, communications, or representations, whether oral or written, between the parties relating to the subject matter hereof; (d) You understand and acknowledge that this Waiver Agreement is a contract intended to be as broad and inclusive as Western Australian law will allow and shall be binding to the fullest extent permitted by law. If any part of this Waiver Agreement is deemed to be unenforceable, the remaining terms shall be an enforceable contract between the parties. It is Your intent that this Waiver Agreement shall be binding upon Your assignees, heirs, next of kin, executors and personal representatives.