A. West Coast Trail Bike Safaris is a business that provides recreational services to motor bike riders (‘rider’) through the provision of guided tours and trail bike safaris for beginner to experienced riders.
B. As West Coast Trail Bikes Safaris do not lease, rent or hire any bikes to its customers, all riders bring their own bikes and are solely responsible for the mechanical soundness and suitability of the bikes for the purpose of attending and participating in the Event.
C. The Rider wishes to engage the recreational services of West Coast Trail Bike Safaris on the Terms and Conditions as outlined herein.
The Parties agree as follows:
INTERPRETATION AND DEFINITIONS
Bike means any motorbike, motorcycle, trail bike etc as used by the Rider during the Event.
Event means such recreational services offered by West Coast Trail Bike Safaris to its customers, from time to time, and include guided tours, trail bike safaris and the use of 3rd Party facilities.
Obvious Risk is as defined in section 5F of the Civil Liability Act 2002 (WA) which provides that:
(1) An obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Recreational services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of a recreational activity.
Rider means the person listed in Item 1 of the Schedule.
West Coast Trail Bike Safaris means KRISHAM PTY LTD as trustee for the KP HAMILTON FAMILY TRUST trading as “West Coast Trail Bike Safaris” ABN 54 646 018 322 and includes its employees, servants, agents, contractors;
All words used in the masculine gender shall be construed as including the feminine gender and all words used in the singular number shall be construed as including the plural number
EFFECT OF TERMS AND CONDITIONS
These terms and conditions apply to entering the Premises to attend to the Event and payment for participation in the Event is deemed acceptance of these terms and conditions.
3.1 Subject to clause 3.2, the Rider entering into this Agreement must be at least 18 years of age and who has read and agreed to all of the terms and conditions of this Agreement before completing registration for the Event.
3.2 In an Emergency, the Rider authorises and requests that West Coast Trail Bike Safaris notifies the person listed as the Emergency Contact in Item 2, where possible, of the nature of the emergency.
3.3 West Coast Trail Bike Safaris may, in its absolute discretion, without giving reasons for its decision, accept, refuse or withdraw an application for an Event in whatever manner it sees fit.
4.1 The Rider consents to and authorises West Coast Trail Bike Safaris to debit the Total Amount Due as referred to in Item 7 of the Schedule from its credit card details as provided in Item 7 of the Schedule.
HEALTH & SAFETY
5.1 The Rider warrants to West Coast Trail Bike Safaris that at all times during the Event:
(a) the Rider is adequately and appropriately prepared both physically and mentally for the Event;
(b) the Rider is not intoxicated, affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person’s capacity to exercise reasonable care and skill is impaired;
(c) the Rider is not aware of any illness, injury, physical disability or impairment which may cause them injury or death; and
(d) If the Rider has any health issues, becomes ill, is injured or has any doubts prior to or during the Event, the Rider will immediately cease participation in the Event and seek appropriate medical professional advice.
COMPLIANCE WITH STATE LAWS.
6.1 At all times during the Event, the Rider will comply with all traffic and road laws in the jurisdiction that they are participating in and any directions issued by officers of the law in the State of Western Australia.
6.2 At all times during the Event, the Rider is to abide by all road and safety rules including wearing appropriate safety equipment, such as but not limited to, helmets (minimum standard AS1698), appropriate clothing such as goggles, gloves, off-road boots, long sleeve shirt and sturdy pants.
WAIVER AND ACKNOWLEDGMENT.
7.1 The Rider acknowledges and agrees that riding a bike is inherently dangerous and that they participate in the Event at their own risk. The obvious risks associated with participating in Event include but are not limited to the risk that:
(a) the Rider may be involved in a collision with people, animals, vehicles and/or other objects;
(b) the Rider may suffer harm from physical exertion;
(c) the Rider’s bike may malfunction and the Rider may fall;
(d) the Rider may for some reason lose control of the bike and otherwise fall from their bike;
(e) the Rider may suffer from the effects of heat, cold, wind, rain and other weather conditions;
(f) the Rider may lack the level of skill or experience to effectively manoeuvre or negotiate a situation at hand or around an obstacle safely;
(g) the Rider may meet another rider exhibiting any of the situations referred to in clauses (a) to (f) above.
7.2 Each of these obvious risks may result in the Rider suffering harm including but not limited to death, physical or mental injury, disability, property damage and economic loss.
7.3 There may be other risks to which the Rider may be exposed, including injury caused to or by other parties or damage caused to the property of other parties.
7.4 Due to the obvious and inherent risks associated with and the severity of an injury or injuries which may arise from participating in the Event, the Rider undertakes to West Coast Trail Bike Safaris that prior to entering the Event, the Rider (the person listed in Item 1 of the Schedule) has private health insurance, ambulance cover and any other insurance which the Rider sees fit.
RelEase, Indemnity and Liability Exclusions
8.1 The Rider releases West Coast Trail Bike Safaris including all persons claiming an interest in the Premises from all claims (including those arising out of negligence), loss, damage, liability, cost and expense arising out of the Rider’s participation in the Event and the Rider indemnifies West Coast Trail Bike Safaris and all persons claiming an interest in the Premises against any claim (including but not limited to those arising in negligence), loss, damage, liability, cost and expense that may be incurred or sustained by West Coast Trail Bike Safaris and all persons claiming an interest in the Premises in connection with any act, matter or thing done, permitted or omitted to be done by the Rider or those for whom the Rider is held responsible for, or which was in any way connected with the Rider’s involvement in the Event.
8.2 Nothing in these terms and conditions excludes, restricts or modifies any term, condition, warranty, guarantee, right or remedy (including but not limited to a guarantee under the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified.
8.3 The Australian Consumer Law contains guarantees that give consumers certain rights in relation to goods and services they acquire. These guarantees cannot be excluded, restricted or modified except in certain circumstances. Section 139A of the Competition and Consumer Act (2010) (Cth) (“CCA”) permits a term of a contact for the supply to a consumer of recreational services, to exclude liability of the supplier for death and personal injury arising from the failure to comply with a guarantee provided in sections 60 to 62 of the Australian Consumer Law.
8.4 In the supply of recreational services provided by West Coast Trail Bike Safaris, the Rider acknowledges and agrees that West Coast Trail Bike Safaris is not held liable for and shall be excluded from liability for:
(b) physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of an individual);
(c) the contraction, aggravation or acceleration of a disease of an individual; or
(e) 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 in relation to an individual, that is or may be harmful or disadvantageous to the individual or community, or that may result in harm or disadvantage to the individual or community,
resulting from a failure of West Coast Trail Bike Safaris to comply with a guarantee in sections 60-62 of the Australian Consumer Law.
8.5 This exclusion of liability does not apply where significant personal injury is caused by the reckless conduct of West Coast Trail Bike Safaris in accordance with s139A of the ACL.
8.6 The Civil Liability Act 2002 (WA) (“CLA”) permits a term of a contact for the supply of recreation services to exclude liability of the supplier for damages for harm resulting from a breach of an express or implied warranty that the services will be rendered with reasonable care and skill. To the extent permitted by law, the Rider acknowledges and agrees that West Coast Trail Bike Safaris excludes all liability for damages for any harm (including but not limited to personal injury or death, damage to property and economic loss and whether direct, indirect, special or consequential) from a failure to exercise reasonable care and skill, regardless of whether the claim is brought in tort (including in negligence), in contract, under statute or otherwise, where such liability results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.
8.7 Except as expressly included in these terms and conditions, all implied terms, conditions, warranties, rights or other additional obligations that can be lawfully excluded are excluded from these terms and conditions.
variation OR amendment OF THE SCHEDULE
9.1 For the purpose of a Rider returning to the Premises for additional recreational services provided by West Coast Trail Bike Safaris, the parties have agreed that the information provided by the Rider in the Schedule may be varied or amended, provided that such variation or amendment is signed and dated by all the parties to this Agreement and the parties agree that the terms and conditions of this Agreement shall continue to apply and be binding on the parties, save and except such variations or amendments.