Terms and conditions

PARTICIPANT DECLARATION

Foiling Contract – Foil Boarding is Dangerous

This is an important document and you should read it carefully before accepting it.  Upon accepting this form and declaration, you acknowledge that you have read and understand the terms and conditions.

The following terms and conditions must be read carefully:

You, hereby agree to be bound by the terms of this contract with The Foiling Project and yourself, jointly and severally as, the Providers in the definitions at clause (a) below. The Providers agree to permit you to use their premises, surf craft and facilities for Foil Boarding Activities and to instruct you in Foil Boarding Activities upon and subject to the following terms and conditions:

A. Definitions – in these terms and conditions:

  • “Claim” means and includes any action, suit, proceeding, claim, demand, damage, penalty, cost or expense however arising from or in connection with any Foil Boarding Activities.
  • “Foil Boarding Activities” means performing or participating in any capacity, including as a member, in any authorised or recognised Surf Related Activities, including but not limited to foil boarding, training to foil board, use of a foil board, and the surroundings connected with Foil Boarding Activities and related activities.
  • “The Providers” means, jointly and severally, in addition to The Foiling Project, the following providers:

The staff (whether paid or volunteers), instructors, foil masters, coaches, surf control assistances, safety officers, jet ski operators including but not limited to: (i) The Foiling Project and its directors, officers, members, servants or agents.

B. Risk Warning and Waiver – Your participation in the recreational activities supplied by the Providers is inherently dangerous and may involve risk.  There are risks specifically associated with participation in the recreational activities and accidents can and often do happen which may result in personal injury, death or property damage.  Prior to undertaking any such recreational activity, you should ensure you are aware of all of the risks involved, including those risks associated with any health condition you may have.  By accepting this form, you acknowledge, agree, and understand that participation in the recreational services provided by the Providers may involve risk.  You agree and undertake any such risk voluntarily and at your own risk.  You acknowledge that the assumption of risk and warning above constitutes a ‘risk warning’ in accordance with relevant legislation, including the Civil Liability Act 2002. 

C. Waiver – A supplier of recreational services or recreational activities can ask you to agree that statutory guarantees under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) do not apply to you (or a person for whom or on whose behalf you are acquiring the services or activities).

If you accept this form, you will be agreeing that your rights (or the rights of a person for whom or on whose behalf you are acquiring the services) to sue the supplier in relation to recreational services or recreational activities that you undertake because the services or recreational activities provided were not in accordance with the guarantees are excluded, restricted or modified as set out below.

D. For recreational services or recreational activities to which the Australian Consumer Law (Commonwealth) and (New South Wales) and (Queensland) applies: By accepting this form, you agree that the liability of the Providers in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law) and the recreational activities (as that term is defined in the Civil Liability Act 2002 (NSW)) for any:

  • Death;
  • Physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
  • The contraction, aggravation or acceleration of a disease;
  • The coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:
            - That is or may be harmful or disadvantageous to you or the community;
            - That may result in harm or disadvantage to you or the community, that may be suffered by you (or a person for whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services or recreational activities
    Is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.

E. Release and Indemnity – You, to the extent permitted by law:

  • Release and forever discharge the Providers from all Claims that you may have or may have had but for this release arising from or in connection with your undertaking the Foil Boarding Activities; and
  • Release and indemnify the Providers from against any Claim which may be made by you or on your behalf for or in respect of or arising out of your death or injury whether caused by the negligence or breach of contract by the Providers or in any other manner whatsoever; and
  • Indemnify and will keep indemnified and hold harmless the Providers to the extent permitted by law in respect of any Claim by any person:
    - Arising as a result of or in connection with your undertaking the Foil Boarding Activities; and
    - Against the Providers in respect of any injury, loss or damage arising out of or in connection with your failure to comply with the Providers rules and/or directions, save that the above releases and indemnities shall not apply to the extent that the loss, damage or injury that is the subject of the Claim is caused or contributed to by the grossly negligent act or omission of the Providers.

F. Insurance – You acknowledge and agree that the fee for undertaking the Foil Boarding Activities does not include personal accident insurance cover.  You agree that you are responsible for your own personal accident, medical and/or life insurance and any and all expenses in the event of injury or death. 

G. Disclosure of Medical Conditions – You warrant that you:

  • Are and must continue to be medically and physically fit and able to undertake and participate in the Foil Boarding Activities;
  • Are not a danger to yourself or to the health and safety of others;
  • Have not at any time suffered any blackout, seizure, convulsion, fainting, or dizzy spells; and
  • Are not presently receiving treatment for any condition, illness, disorder or injury which would render it unsafe for you to take part in Foil Boarding or Surfing including undertaking the Foil Boarding Activities

    You acknowledge that you must, and you agree that you will, disclose any pre-existing medical or other condition that may affect the risk that either you or any other person will suffer injury, loss or damage.  You acknowledge that the Providers rely on information provided by you and that all such information is accurate and complete.  You must inform the Provider if any such medical or other condition arises after you agree to this Foil Boarding Contract and prior to undertaking Foil Boarding Activities.  You agree to report any accidents, injuries, loss or damage you suffer during any Foil Boarding Activities to the Providers before you leave any relevant venue/place of business.  You acknowledge that if any of the warranties you make under this clause (i) can no longer be made by you on the date you undertake the Foil Boarding Activities, you must inform the Provider on arrival and before you participate in any Foil Boarding Activities.

H. Inherent Physical Contact – You acknowledge and accept that close physical contact with the Providers is inherent in undertaking Foil Boarding Activities.  You accept such close physical contact is necessary to undertake Foil Boarding Activities.

I. Exclusion of Applicant – You warrant that you have not at any time been excluded from Foil Boarding by a medical practitioner.  You acknowledge and agree that the Providers may demand a medical certificate or opinion as to your fitness from a qualified medical practitioner PRIOR to your undertaking the Foil Boarding Activities.  You acknowledge that if the warranty you make under this clause (i) can no longer be made by you on the date you undertake Foil Boarding Activities, you must inform the Provider on arrival and before you participate in any Foil Boarding activities.

J. Safety – You understand and acknowledge the dangers associated with the consumption of alcohol or any mind-altering substance before or during your involvement in undertaking the Foil Boarding Activities, and you accept full responsibility for injury, loss or damage associated with the consumption of alcohol or any other mind-altering substance. You agree to follow any rules set by the Provider in connection with any Foil Boarding Activities.  If you fail to comply with the Providers riles and/or directions, you will not be permitted to participate or to continue to participate in the Foil Boarding Activities and no refund will be given.  If you suffer any injury or illness, you agree that the Providers may provide evacuation, first aid and/or medical treatment at your expense and that you acceptance of these terms and conditions constitutes your consent to such evacuation, first aid and/or medical treatment.

K. Foil Boarding done at Foil Boarders own Risk – Any person Foil Boarding, training to Foil Board, Surfing or participating in any activity carried on by the Providers may only do so on the distinct understanding that they do so entirely at their own risk.

L. Acceptance – Performance of the Providers’ obligations under the contract may be affected by any one or more of the Providers either jointly or severally.

M. Bar to proceedings – The Providers may plead this contract as a bar to proceedings now or in the future commenced by or on behalf of you or by any person claiming through you.  Where you seek to commence proceedings against the Providers or any of them, you:

  • Will commence those proceedings in the courts of the jurisdiction in which any incident occurs;
  • Waive any right to object to the exercise of such jurisdiction;
  • Will, where you seek to commence proceedings in another jurisdiction from where any incident occurs, consent (if required by the Providers) to move those proceedings to the jurisdiction in which any incident occurs including consenting to any application made by the Providers to remove the proceedings to the jurisdiction in which any incident occurs;
  • Will pay the costs of any application made by the Providers under paragraph (iii) above and will consent to any application for security of costs made at any time by the Providers; and
  • Consent to paying the Providers’ legal defence costs of the proceedings (on a solicitor client basis) where the Providers successfully defend the proceedings.

N. Governing Law – The governing law of this agreement is the law of the state of Queensland (‘Jurisdiction’).  You irrevocably and unconditionally consent and submit to the Jurisdiction of the courts of the Jurisdiction in which any incident occurs and waive any right to object to the exercise of such jurisdiction.

O. Statement of Understanding – You have read, or have had read to you the above conditions and having understood the same, you consent to the activities proposed.

P. Prevailing Conditions – You acknowledge and agree that:

  • Foil Boarding and the Foil Boarding Activities can and will be affected by weather which can change without warning; and
  • There is often an element of the “luck of prevailing conditions” when undertaking the Foil Boarding Conditions over which the Providers or any of them have no control;
  • The Foil Board may take off abruptly (ie experience a hard take off) and the Foil Boarder may suffer an injury (including injuries sustained from a hard landing); and
  • Unintended incidents may occur in flight, in the descent or upon landing on the Foil.

Q. Use of Image – You acknowledge and consent to photographs and electronic images being taken of you during your undertaking the Foil Boarding Activities.  You acknowledge and agree that such photographs and electronic images are owned by the Providers and the Providers may use the photographs for promotional or other purposes without your further consent being necessary.

R. Privacy – You understand that the personal information you have provided in your application is necessary for the conduct and management of the Foil Boarding Activities and for the administration of Foil Boarding in Australia generally, and that it is collected in accordance with the Privacy Policy.  You acknowledge that the Providers may share your information with third parties such as affiliates and other organisations involved in Foil Boarding in Australia; companies engaged by the Providers to carry out functions and activities on the Providers behalf including direct marketing; the Providers professional advisers, including the Providers accountants, auditors and lawyers and the Providers insurers; however your information is not generally disclosed to anyone outside Australia.  If you do not wish to receive promotional material from the Providers and third parties you must advise the Providers in writing or via the opt-out procedures provided in the relevant communication.

S. Entire Agreement – This agreement (and the documents to which it refers) constitutes the entire agreement between the parties in respect to the Foil Boarding Activities and supersedes all other agreements, understandings and representations and negotiations with the Providers or any of them in relation to the Foil Boarding Activities. To the extent that any clause of this agreement is void or unenforceable it is severable and does not affect the remaining provisions of the agreement.

PLEASE NOTE THE FOLLOWING:

If the Competition and Consumer Act 2010 or similar state law operates so as to prevent the exclusion, restriction or modification of warranties otherwise implied by those laws then the liability of the Provider for breach of warranties is limited to:

  • The re-supply of the Foil Boarding instruction and related activities; or
  • The payment of the cost of having the Foil Boarding and related activities supplied again.