WAIVER, RELEASE, DISCHARGE AND INDEMNITY
This document contains provisions which affect the legal rights of the Customer and are to be read in conjunction with the T&C. Where there is any inconsistency between the T&C and this document, the provisions contained within this document will prevail.
The Customer has read and understood the disclosure of risks set out in this Waiver, and voluntarily accepts those risks and agrees to be bound by this Waiver.
1. This Waiver is between Peoples Park and the Customer and applies to the Customer at all times whilst at the Park.
2. In consideration for and as a condition of being permitted access to the Park, the Customer agrees to this Waiver.
3. A reference to Customer shall include all persons that have been included in the Customer’s Booking.
4. The definitions in the T&C apply to this document, together with the following:
“Activities” means the use of the facilities at the Park for the purpose of the Accommodation, sport, enjoyment, relaxation 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 Park or the Activities (as the case may be) 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.
“T&C” means the Terms and Conditions published by Peoples Park as accepted by the Customer at the time of making the Booking.
“Waiver” means this Waiver, Release, Discharge and Indemnity.
5. The Customer represents and warrants that the Customer:
5.1. is over 18 years old (other than any minors accompanying the Customer);
5.2. is medically fit to perform, or engage in the Activities;
5.3. is competent to safely engage in the Activities;
5.4. has not relied on any representations or warranties that may have been made by Peoples Park or its Representatives in relation to the Park or the Activities;
5.5. has taken, or had the opportunity to take, independent medical, legal and other relevant advice as to the nature, effect, meaning and extent of this Waiver; and
5.6. has authority to, and does hereby, enter into this Waiver on the Customer’s own behalf and on behalf of all minors accompanying the Customer.
6. The Customer acknowledges the risks associated with participating in the Activities include, but are not limited to:
6.1. loss or damage to property, injury, illness or death;
6.2. slipping and falling, collisions with fixed objects and or other participants, falling off objects;
6.3. attack or injury from wildlife, polluted or contaminated water, dangerous or inclement weather conditions, contracting illnesses from contact with objects and surfaces within the Park;
6.4. limited mobile telephone reception and access to medical facilities and assistance;
6.5. the behaviour and acts or omissions of other participants;
6.6. equipment failure and improper or inadequate equipment maintenance;
6.7. improper or inadequate instruction or supervision regarding the Activities or use of the Park’ facilities and equipment; and
6.8. first aid, emergency treatment, safety rescues or services rendered or failed to be rendered by Peoples Park or its Representatives.
7. The Customer is aware of the dangers associated with the consumption of alcohol, mind altering substances, drugs (including over the counter or prescribed medication) or other substances which may impair any judgment or physical ability or capacity to safely participate in the Activities and accepts full responsibility for any injury, loss or damage associated with the Customer’s consumption of alcohol, mind altering substances, drugs or other substances which impairs the Customer’s judgment, physical ability or capacity to safely participate in the Activities.
8. The Customer acknowledges and understands:
8.1. the contagious nature of COVID-19 and that the Government and public health authorities still recommend practicing social distancing;
8.2. that even though Peoples Park has put in place preventative measures to reduce the spread of COVID-19, Peoples Park cannot guarantee that the Customer will not become infected with COVID-19; and
8.3. the risk of being exposed to and or infected by COVID-19 may result from the actions, omissions, or negligence of the Customer and others, including, but not limited to Peoples Park’s staff, other guests, venue staff and patrons; and
the Customer warrants that the Customer:
8.4. will comply with all procedures implemented by Peoples Park in order to assist with the prevention of virus spread while participating in the Activities;
8.5. if required, will wear a face mask while in indoor spaces;
8.6. is not experiencing any symptom of illness, such as coughing, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or recent loss of taste or smell;
8.7. has no reason to believe that the Customer has been exposed to someone with a suspected and or confirmed case of COVID-19 (or any variant thereto);
8.8. has not been diagnosed as having COVID-19 (or any variant thereto), or if the Customer has, that the Customer has been cleared as no longer being contagious by state or local public health authorities; and
8.9. is following all Government and public health authority recommended guidelines as much as possible and limiting the Customer’s exposure to COVID-19.
9. The Customer unconditionally and irrevocably acknowledges and agrees that:
9.1. Peoples Park and its Representatives are not responsible for any Claims or Liabilities for:
(a) any injury, illness or death of any person; or
(b) any injury, illness or death that the Customer may sustain; or
(c) any loss, damage or theft of the Customer’s property;
9.2. Peoples Park may, in its sole discretion:
(a) refuse to permit the Customer access to the Park;
(b) require the Customer to leave the Park at any time;
(c) refuse to permit the Customer to engage in the Activities;
(d) require the Customer to cease the Activities; or
(e) change or vary the conditions of entry to the Park or participation in the Activities.
10. The Customer has had the opportunity to consider the risks associated with participating in the Activities and freely and voluntarily accepts:
10.1. all of the risks (foreseeable and unforeseeable) that may result from the Customer participating in the Activities;
10.2. any and all consequences which may result from those risks (whether foreseeable or unforeseeable); and
10.3. that all Implied Warranties are excluded to the fullest extent permitted by law.
11. To the extent any Implied Warranties cannot be excluded, liability for any breach of any Implied Warranty is limited to:
11.1. 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
11.2. in the case of any Implied Warranty relating to services:
(c) the re-supply of those services; or
(d) the cost of re-supply of those services.
12. The Customer has read, understood and agrees to comply with all rules, regulations, procedures, instructional material and other information provided to the Customer or published at the Park or relating to the Activities.
13. While at the Park or participating in the Activities the Customer will, at all times, follow:
13.1. the lawful directions of Peoples Park or any of its Representatives; and
13.2. any signage displayed at or in relation to the Park and the Activities.
14. If the Customer observes any uncontrolled hazard or risk, the Customer will immediately cease any act the Customer undertakes contributing to that hazard or risk, take those steps which are available to the Customer to reduce the hazard or risk and inform the nearest Representative of the hazard or risk and the steps taken by the Customer.
15. To the fullest extent permitted at law, the Customer waives, releases and discharges Peoples Park and its Representatives from and against any and all Claims or Liabilities which the Customer has, or may at any time have, arising out of or in relation to the Park and 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 Peoples Park and or its Representatives (including in relation to COVID-19).
16. The Customer agrees to indemnify, and keep indemnified, Peoples Park and its Representatives from and against any Claims and Liabilities, whether direct or indirect, arising out of or in relation to:
16.1. the Customer being at the Park;
16.2. the Customer observing or participating in the Activities (whether at the Park or elsewhere and whether operated by Peoples Park or a third party); and
16.3. the Customer’s acts or omissions while at the Park or observing or participating in the Activities.
17. The Customer covenants not to sue or commence any proceedings against Peoples Park and or its Representatives in respect of any loss or damage arising out of or relating to any loss, damage, injury or illness the Customer may sustain (whether to the Customer personally or to any of the Customer’s property) which occurs at the Park or in any way relates to the Activities.
18. While at the Park, the Customer will:
18.1. abide by all laws;
18.2. not introduce or create any hazards to persons, property, flora or fauna; and
18.3. not, by the Customer’s acts or omissions, breach any terms of this Waiver.
19. If anything in this Waiver 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 document remains in full force and effect in all other jurisdictions.
20. This Waiver is governed by and shall be construed in accordance with the laws of the State of Western Australia, the parties submitting to the exclusive jurisdiction of the Courts of Western Australia for determination of any dispute claim or demand.