Spark Inflatable Pty Ltd (ABN: 59 654 500 286)
ASSUMPTION OF RISK, WAIVER OF LIABILITY AND INDEMNITY AGREEMENT
Yarra River, 9 December 2023
Acceptance of this agreement is a pre-condition for participation in the 2023 inflatable regatta. This document has legal consequences and will affect your legal rights and may eliminate your ability to bring future legal actions. Please read this document carefully before agreeing to the terms and conditions of participation.
This release, waiver and indemnity (Waiver) is in favour of Spark Inflatable Pty Ltd (ACN 654 500 286) (IR) and its affiliates and their respective directors, officers, employees, agents, contractors, insurers, spectators, co-participants, equipment suppliers, and volunteers; all IR Event sponsors, organisers, promoters, directors, officials, property owners, and advisers; governmental bodies or municipal agencies whose property 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 IR (Affiliates).
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.
This Waiver applies to the 2023 recreational on-water event taking place on the Yarra River in Melbourne Australia on 9 December 2023 held by IR (IR Event).
In consideration of participation in the IR Event, I (the named participant below) confirm the following:
1. Warning of Assumption of Inherent Risks
- I (the named Participant) am aged over 18 years of age. Alternatively, I am the parent or legal guardian of the named participant and give my consent to this waiver and release on behalf of the named participant, who is at least 8 years or over on the date of the IR Event.
- I, and the participants I am purchasing or signing this Waiver on behalf of, will be competent swimmers. I understand that any participant under 18 years of age on the date of the event must be accompanied by an adult who is also a competent swimmer.
- The IR Event is not a race against other participants. The object is to complete the IR Event safely whilst ensuring the amenity and enjoyment of all participants.
- I acknowledge that the IR Event is a hazardous on-water event and that carries with it inherent risks of physical injury. Inherent risks are risks that cannot be eliminated completely (without changing the nature of the IR Event) regardless of the care and precautions taken by IR and its Affiliates.
- I also understand that the IR Event is extremely strenuous and further acknowledge the accompanying risks and dangers generally present in such activities. I understand that these hazards may be magnified due to the fact that the IR Event may be conducted under what may be imperfect weather conditions and circumstances.
- I understand and acknowledge that the inherent risks include, but are not limited to:
- contact or collision with persons or objects (e.g., collision with spectators or IR Event personnel), contact with other participants, and contact with natural or man-made fixed objects or obstacles);
- encounter with obstacles (e.g., natural and man-made water obstacles);
- equipment related hazards (e.g., broken, defective or inadequate equipment, unexpected equipment failure, imperfect IR Event conditions);
- weather-related hazards (e.g. extreme heat, extreme cold, humidity, ice, rain, fog);
- inadequate first aid or emergency measures;
- judgement or behaviour-related problems (e.g. erratic or inappropriate co-participant or spectator behaviour, erratic or inappropriate behaviour by the participant, errors in judgement by personnel working the event; and
- natural hazards (e.g. water hazards, uneven terrain, rock falls, lightning strikes, earthquakes, wildlife attacks, contact with poisonous plants, marine life or ticks).
- I 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.
- Potential minor injuries are common and include, but are not limited to scrapes, bruises, sprains, nausea, seasickness and cuts.
- Potential serious injuries are less common, but do sometimes occur, including: property loss or damage, broken bones, fractures, torn or strained ligaments and tendons, concussions, exposure, dehydration, heat exhaustion and other heat-related illnesses, mental stress or exhaustion, infection, vomiting, dislocations, hyperthermia, hypothermia, anaemia, electrolyte imbalance, loss of consciousness, syncope, dizziness, fainting, seizures, electric shock or injury, and neurological disorders or pain.
- Potential catastrophic injuries are rare; however, we feel that our participants should be aware of the possibility. These injuries can include but are not limited to: permanent disabilities, stroke, single or multiple organ failure or dysfunction, physical damage to organs, spinal injuries, paralysis, heart attack, heart failure, blood cell disorder, brain swelling, and even death.
- I understand that it is my responsibility to inspect the IR Event, facilities, equipment, and areas to be used, and if I believe or become aware that any are unsafe or pose unreasonable risks, I agree to immediately notify appropriate personnel. By participating in the event, I am acknowledging that I have found the IR Event, facilities, equipment, and areas to be used to be safe and acceptable for participation. I accept full and sole responsibility for the condition and adequacy of my equipment.
- I understand fully the inherent risks involved in the IR Event and assert that I am willingly and voluntarily participating in the event. I have read the preceding paragraphs and acknowledge that:
- I know the nature of the IR Event;
- I understand the demands of this activity relative to my physical condition, including swimming abilities; and
- I appreciate the potential impact of the types of injuries that may result from the IR Event.
- I assert and acknowledge that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses, or expenses that I incur as a result of participating in the IR Event.
- In short, I acknowledge that I am participating in the IR Event entirely at my own risk.
2. Initial Waiver of Liability for Ordinary Negligence
- To the extent permitted by law, I agree that under this agreement IR and its Affiliates shall be excluded from liability for ordinary negligence in the conduct of the IR 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 IR and its Affiliates will 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 IR or its officers, servants or agents is reckless or grossly negligent.
- In consideration of being permitted to participate in the IR Event, to the extent permitted by law, I (on behalf of the Releasing Parties) forever waive, release, agree not to sue, and discharge IR and its Affiliates 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, conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to me or others or that may result in harm or disadvantage to me or others resulting from the inherent risks of the IR Event or the ordinary negligence of IR (or its Affiliates) that I may have arising out of my participation in the IR Event.
3. Initial Indemnification Agreement
- To the extent permitted by law, I hereby agree to hold harmless, defend, and indemnify (which for the avoidance of doubt includes defending and paying any judgement, court costs, investigation costs, legal fees, and any other expenses incurred that relate to a breach of this contract) IR (and its Affiliates) 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, 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 IR Event.
This applies both to claims arising from the inherent risks of the IR Event and the ordinary negligence of IR (or any of its Affiliates).
- I further 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, and any other expenses incurred that relate to a breach of this contract) IR and its Affiliates against any and all claims of IR participants, rescuers, and others arising from my conduct in the IR Event of my participation in the IR Event, or that of minors that I am required to accompany in accordance with this Waiver.
4. Agreements for the Protection of Participants
- I am in good health and in proper physical condition to safely participate in the IR Event. I certify that I have no known or knowable physical or mental conditions that would affect my ability to safely participate in the IR Event, or that would result in my participation creating a risk of danger to myself or to others.
- I acknowledge that IR recommends and encourages each participant to get medical clearance from their personal physician prior to participation. 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 IR Event, 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 attest that I am covered by appropriate levels of medical insurance.
- In the event of an injury to me that renders me unconscious or incapable of making a medical decision, I authorise appropriate IR personnel and emergency medical personnel at the event to make emergency medical decisions on my behalf (including, but not limited to applying CPR and Automated External Defibrillator).
- I authorise IR to secure emergency medical care or transportation (i.e. ambulance) when deemed necessary by IR.
- I agree to assume all costs of emergency medical care and transportation for myself or minors for which I am responsible in accordance with this Waiver.
- I acknowledge that IR 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 IR to halt my participation (and, if necessary, have me removed from the premises) if my participation, conduct, or presence endangers myself or my co-participants.
5. Entry and Participation Agreements
- Rules: I agree to become familiar with and abide by all written or posted rules of IR, as well as all written or posted rules of the relevant event venues. I further agree to comply with all directions, instructions and decisions of IR and venue personnel. I further agree not to challenge these rules, directions, instructions, or decisions on any basis at any time.
- Emergency Delay or Cancellation:
- I acknowledge that IR at its sole discretion may delay, modify, or cancel the IR Event if conditions or a natural or man-made emergency makes administering the event unreasonably difficult or unsafe. “Emergency” means any event beyond the control of IR, including but not limited to: high wind, extreme rain or hail, hurricane, tornado, earthquake, flood, acts of terrorism, fire, threatened or actual strike, labour difficulty or work stoppage, insurrection, war, public disaster, and unavoidable casualty.
- In the event of a delay, modification, or cancellation of the IR Event as described in this paragraph, I understand that I will not be entitled to a refund of my entry fee or any other costs incurred in connection with the IR Event.
- Govern Participation: I understand that IR has the authority to issue instructions or directions relating to the manner of my safe participation in the IR Event or related activities and the authority to halt my participation in the IR Event or Related Activities at any time they deem it necessary to protect the safety of participants, spectators, and personnel, or promote fairness and the spirit of IR.
- Removal from IR Event: I understand that IR and venue personnel may immediately cause anyone who disobeys any rules, directions, instructions, decisions, or laws, or whose behaviour endangers safety or negatively affects a person, facility, or property of any type or kind, to be removed from the IR Event.
- Fee Refunds: I understand that all fees and associated costs (including optional product purchases, spectator tickets, and donations), paid in registration for this IR Event are not refundable for any reason under any circumstances, including but not limited to injury, a scheduling conflict, or event cancellation.
- Attitude and Behaviour: I also agree to exhibit appropriate behaviour at all times; demonstrate respect for all people, equipment, and facilities; and participate with a cooperative and positive attitude.
- Alcohol & Drugs: I certify that I am not, and on the date of the IR Event will not be, under the influence of alcohol or any non-prescription drugs that would in any way impair my ability to safely and legally participate in the IR Event on-river. I further understand that the consumption any alcohol and any illicit or illegal drugs or substances during the on-river event is strictly prohibited. IR will only allow the responsible consumption of alcohol after the IR Event to those aged over 18. The consumption of any illicit or illegal drugs or substances before, during, and after the IR Event is strictly prohibited.
- I agree to take full responsibility for my alcohol consumption at the IR Event (if aged over 18).
- Specific Rules: I specifically acknowledge and agree to abide by the following rules at the IR Event:
- a maximum of two persons are permitted per boat, and the total weight per boat cannot exceed 180 kilograms;
- no urination or defecation is permitted outside of designated areas;
- no wheeled conveyances or pets are allowed in the IR Event at any time;
- no clothing, props or equipment that pose an unnecessary risk to participants, spectators or personnel are permitted; and
- to obey civil and criminal laws including traffic laws.
- If a participant is under 18 years of age they must be in a boat carrying two people, one of which is 18 years or over.
- IR may at any time take images and videos of the IR Event and I consent to having my photograph taken for any and all security and promotional purposes.
- I understand and agree that this Waiver is intended to be as broad and inclusive as is permitted by Victorian law 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, subject to 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.
I agree that this agreement supersedes any and all previous oral or written promises or agreements. I understand that this is the entire agreement between me and IR in relation to the IR Event and cannot be modified or changed in any way by representations or statements by any agent or employee of IR. This Waiver may only be amended by a written document duly executed by all parties.
8. Mediation and Arbitration
- I agree to engage in good faith efforts to mediate any dispute that might arise in relation to this Waiver. Any agreement reached will be formalised by a written contractual agreement at that time.
- Should the issue not be resolved by mediation or be otherwise unresolved within 60 days of IR being notified by you of such issue, I agree that all disputes, controversies, or claims arising out of my participation in the IR Event shall be submitted to binding arbitration in Melbourne, Australia accordance with the applicable rules of the Australian Centre for International Commercial Arbitration then in effect, under a single arbitrator in English.
- The cost of mediation or arbitration shall be shared equally by the parties.
9. Venue and Jurisdiction
- I understand that if that if mediation and arbitration prove unsuccessful and legal action is brought, the courts of Victoria have the sole and exclusive jurisdiction.
- The laws applicable in Victoria govern this Waiver.
10. Class Actions
Subject to law, I agree that any arbitration, mediation or legal action will proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. Claims may not be joined or consolidated unless agreed to in writing by all parties.
11. Warning under the Australian Consumer Law and Fair Trading Act 2012
If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 are excluded, restricted or modified in the way set out in this form, if you are killed or injured because the services provided were not in accordance with the statutory guarantees outlined below.
Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you—
- 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.
In accordance with section 22 of the Australian Consumer Law and Fair Trading Act 2012, the exclusion of these statutory guarantees is brought to your attention by 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 2022 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
12. Acknowledgement of Understanding
I have read this Waiver and fully understand its terms. I understand that I am giving up substantial rights, including my right to sue in certain cases. I further acknowledge that I am consenting to the terms of this agreement freely and voluntarily, and intend my consent and participation to act as a complete and unconditional release of all liability due to ordinary negligence of IR (and other Affiliates) or the inherent risks of the activity, to the greatest extent allowed by the laws in force of the Commonwealth of Australia and Victoria.