Risk description / liability regime

It is known to the participant that participating in an outback day along tour can be associated with certain dangers and risks, which can result in injury, illness or an inconvenience. Likewise, the property carried as well as the vehicle can suffer damage.

The participant expressly confirms that he holds the organizer Otto Tours Australia free of any liability. Participation is entirely at your own risk.

By registering, the participant confirms that he agrees to this liability regulation.

STANDARD TERMS AND CONDITIONS, INCLUDING WAIVER FOR TOURS & ATTRACTIONS

1                 General

1.1             These Terms and Conditions (“T&C”) apply to the Booking made by the Customer with the Provider.

1.2             By making a Booking (directly or through a third party), the Customer agrees to these T&Cs for themselves and all persons included in the Booking and each such person shall be jointly and severally bound by these T&Cs.

1.3             By making a Booking, the Customer has read and understood the disclosure of risks set out in these T&Cs, voluntarily accepts those risks and agrees to be bound by these T&Cs.

2                 Definitions

“Activity” means any tour, event, or attraction and incidental-related activities.“Authority” means:

• a government or government department or other body;
• a governmental, semi-governmental or judicial person, including a statutory corporation; or
• a person (whether autonomous or not) who is charged with the administration of a law.

“Booking” means booking the Activity.“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.“Cost” means the total amount payable to the Provider by the Customer for the Activity.“Customer”, “You”, or “Your” means the person making the Booking (and includes all persons included in the Booking.”Deposit” means a non-refundable and non-transferable payment [in the amount of [$amount] / equivalent to [amount]% of the Cost] payable to the Provider at the time of Booking, or such other amount as stipulated by the Provider from time to time.  “Force Majeure Event” means any occurrence or non–occurrence as a direct or indirect result of which a party is prevented from or delayed in performing any of its obligations and that is beyond the reasonable control of that party, including:

• inability to obtain goods, supplies or services, including fuel, accommodation or access to an attraction;
• forces of nature (including fire, earthquake, storm, flood or other casualty or accident);
• war, civil strife or other violence;
• industrial action, or any action or inaction by an Authority;
• any law, order, proclamation, regulation, ordinance, action, demand or requirement of any Authority; and
• epidemic or pandemic to the extent that any Authority imposes restrictions (including lockdown and quarantine restrictions).

“Goods” means all property, equipment of any nature, facilities, chattels, fixtures and fittings, and goods of any description.”Implied Warranties” means all warranties of any nature concerning the Activities (as the case may be) that are implied by law (whether according to the Competition and Consumer Act 2010 (Cth) or otherwise).”including” is deemed to be followed by the words “without limitation”.”Liabilities” mean any liabilities, debts or obligations, whether actual or contingent, present or future, quantified or unquantified or incurred jointly or severally with any other person.”Provider“, “We“, “Us“, or “Our” means [the business entity], its Representatives and assigns.”Representatives” means the Provider’s agents, directors, officers, contractors, volunteers or employees.“Waiver” means the Waiver, Release, Discharge and Indemnity published by the Provider and accepted by the Customer when making the Booking.

3                 Bookings

3.1             The Booking is subject to availability.

3.2             The Provider reserves the right to decline any Booking or request at its discretion.

3.3             Unless otherwise determined by the Provider before or at the time of Booking, the following provisions apply:

• The deposit shall be paid at the time of Booking;
• payment of the balance of the Cost is required [30] days before commencement of the Activity;
• if the Booking is made within [30] days of the commencement of the Activity, full payment of the Cost is required at the time of Booking;
• a list identifying all persons participating in the Activity is to be provided at the time of Booking;

Specials / Packages:

• The Provider reserves the right to promote/offer the Activity on terms and conditions different to the T&C (including as to Cost, Deposit, payment terms and cancellation terms) at its discretion and for each Booking therein made, those terms and conditions shall prevail over the T&C concerning any inconsistency.
  • A valid credit card is required at the time of Booking. The Customer’s credit card will be held as security for the Booking and utilised for any payments, outstanding charges, Cancellation Fees, no-show fees, damage and any breach of these T&Cs.
  • Failure by the Customer to make payment as required following the T&C, or as otherwise requested by the Provider, may result in the Booking being cancelled and the Provider making available the Activity, or any part thereof, to other persons.
  • Suppose the Customer makes the payment using a credit card. In that case, the Customer warrants that the information provided to the Provider is accurate and complete, that the Customer is authorised to use the credit card to make payment and that the Customer’s payment will be honoured by the credit card issuer.

4                     Cancellation

4.1             All cancellations must be in writing and sent to the Provider. The Customer is responsible for ensuring the Provider has received notice of any booking cancellation.

4.2             Subject to these T&Cs, where the Customer cancels the Booking:

• More than [30] before the commencement of the Activity, the deposit will be forfeited, and any remaining monies paid will be returned to the Customer;
• [30] days or less before the commencement of the Activity (including on the day of the Activity and no-shows), all monies paid by the Customer will be forfeited.

4.3             If the Customer requests an amendment to the Booking [30] days or less before the commencement of the Activity, such request will be deemed a cancellation by the Customer, and the provisions in clause 4.2(b) will apply.

4.4             Where the Booking is cancelled following clauses 4.2(b) or 4.3, the Provider shall have the right to re-book the Activity or any part thereof.

5                 Costs

5.1             Costs are in AUD and inclusive of GST.

5.2             Costs are subject to change. The Provider reserves the right to change the Cost without notice provided that the Cost will not be varied for Bookings that have been paid in full or for which a Deposit has been paid.

6                 Changes to Activity

6.1             The Customer acknowledges that the nature of the Activity is likely to require considerable flexibility. The itinerary/program provided for each Activity is representative of the types of activities contemplated. The Customer acknowledges that routes, schedules, itineraries, amenities, activities, modes of transport and other inclusions may be subject to alteration without prior notice due to local circumstances or events. As such, the Provider reserves the right to:

(a)              cancel or modify any routes or any other aspect of the Activity;

(b)              substitute different or equivalent routes or elements of the Activity or

(c)              postpone, cancel or delay (concerning the departure or arrival times or the duration of the itinerary) any such aspect of the Activity if, at the absolute discretion of the Provider, it is necessary.

6.2             In the event of any change, modification, cancellation, postponement or delay to the Activity as contemplated under this clause, the Customer acknowledges that the Customer will have no right to refund and no right to claim compensation for any loss and or Cost incurred because of the change, modification, cancellation, postponement or delay.

7                 Property in Goods

7.1             All Goods supplied by the Provider remain the property of the Provider.

7.2             The Customer shall not alter, change, replace or otherwise interfere with any Goods.

7.3             The Provider takes no responsibility for the suitability of the Goods for the Customer’s specific requirements, and it is the Customer’s responsibility to ensure that all Goods are suitable for the Customer’s particular needs.

7.4             Any damage to Goods is the Customer’s liability. The Customer will be responsible for any repairs required to damaged Goods.

7.5             The Customer shall ensure that any Goods are not damaged or destroyed and shall return all Goods in the same condition as provided, fair wear and tear excluded.

7.6             The Provider has the right to inspect any Goods at any time.

8                 Behaviour Policy

8.1             Anti-social behaviour (including behaviour of a sexual or discriminatory nature) and intoxication during the Activity and or creating a disturbance to other customers and or Representatives will not be tolerated. It may result in immediate termination of the Activity for the Customer.

8.2             Where the Activity is terminated according to this clause, the Customer shall forfeit any monies paid to the Provider.

9                 Customer’s Warranties

9.1             The Customer represents and warrants that the Customer:

(a)              is over 18 years old (other than any minors accompanying the Customer);

(b)              is medically fit to perform or engage in the Activity;

(c)              is competent to engage in the Activity safely;

(d)              has not relied on any representations or warranties that the Provider or its Representatives may have made concerning the Activity;

(e)              has taken, or had the opportunity to take, independent medical, legal and other relevant advice as to the nature, effect, meaning and extent of these T&Cs; and

(f)               has authority to, and does at this moment, enter into these T&Cs on the Customer’s behalf and behalf of all minors accompanying the Customer.

9.2             The Customer warrants that:

• The Customer has and will comply with all applicable laws;
• the Customer has and will comply with all lawful directions of the Provider;
• The Customer has not relied on any representations or warranties that the Provider or its Representatives may have made, and
• The Customer will report any hazards immediately to the Provider.

10              Termination

10.1          The Provider may terminate the Booking immediately if there has been a breach of the T&C.

10.2          Any termination of the Booking following this provision will result in all monies paid by the Customer to the Provider being forfeited and retained by the Provider.

10.3          The Provider’s accrued rights, obligations, and remedies will not be affected by the termination of the T&C.

11              Liability and Waiver

11.1          The Customer has read and understood the disclosure of risks set out in these T&Cs, voluntarily accepts those risks and agrees to be bound by these T&Cs.

11.2          The Customer acknowledges the risks associated with participating in the Activity include, but are not limited to:

(a)              loss or damage to property, injury, illness or death;

(b)              slipping and falling, collisions with fixed objects and or other participants, falling off objects;

(c)              drowning, polluted or contaminated water;

(d)              attack or injury from wildlife, dangerous or inclement weather conditions, contracting illnesses from contact with objects and surfaces while participating in the Activity;

(e)              limited mobile telephone reception and access to medical facilities and assistance;

(f)               the behaviour and acts or omissions of other participants;

(g)              equipment failure and improper or inadequate equipment maintenance;

(h)              improper or inadequate instruction or supervision regarding the Activities or use of the Provider’s facilities and equipment; and

(i)               first aid, emergency treatment, safety rescues or services rendered or failed to be rendered by the Provider or its Representatives.

11.3          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 that may impair any judgment or physical ability or capacity to participate in the Activity safely 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 participate in the Activity safely.

11.4          To the extent any Implied Warranties cannot be excluded, liability for any breach of any Implied Warranty is limited to:

(a)              In the case of any Implied Warranty relating to goods:

(i)           the replacement of those goods or the supply of equivalent goods or

(ii)          the Cost of replacing those goods or supplying equivalent goods; and

(b)              In the case of any Implied Warranty relating to services:

(i)           the re-supply of those services; or

(ii)          the Cost of re-supply of those services.

11.5          The Customer has read, understood, and agrees to comply with all rules, regulations, procedures, instructional material, and other information provided or published by the Provider relating to the Activity.

11.6          While participating in the Activity, the Customer will, at all times, follow:

(a)              the lawful directions of the Provider or any of its Representatives; and

(b)              any signage displayed at or concerning the Activity.

11.7          While participating in the Activity, the Customer will:

(a)              abide by all laws;

(b)              not introduce or create any hazards to persons, property, flora or fauna; and

(c)              not, by the Customer’s acts or omissions, breach any terms of this T&C.

11.8          To the maximum extent permitted by law, the Customer releases, waives, discharges and indemnifies the Provider and its Representatives from any Claims and Liabilities which may be made by the Customer, or on the Customer’s behalf, for loss, in any way arising out of or related to the Activity or the T&C, including but not limited to property loss or damage, bodily injury or death. This waiver, release and discharge extends to all acts, omissions, defaults, failures or errors on the part of all or any of the Provider and or its Representatives.

11.9          The Provider and their Representatives shall not, in any event, be liable for contingent, consequential, indirect, unique, and punitive or any other similar damages, howsoever caused, for any damage, injury or loss arising out of or in connection with the Activity or the T&C, whether arising under breach of contract, negligence (commission, omission or advice), statute or otherwise. The Customer agrees to indemnify and keep indemnified the Provider and its Representatives from and against any Claims and Liabilities, whether direct or indirect, arising out of or concerning:

(a)              the Customer observing or participating in the Activity (whether operated by the Provider or a third party); and

(b)              the Customer’s acts or omissions while participating in the Activity.

11.10       The Customer has had the opportunity to consider the risks associated with participating in the Activity and freely and voluntarily accepts:

• all of the risks (foreseeable and unforeseeable) that may result from the Customer participating in the Activity and
• any consequences resulting from those risks (whether foreseeable or unforeseeable).

11.11       The Customer covenants not to sue or commence any proceedings against the Provider 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 while participating in the Activity.

11.12       This clause:

• applies notwithstanding that any such claim, action or loss may come about, either wholly or in part, due to the negligence of or breach of a contractual term by the Provider;
• is intended to be as broad and inclusive as is permitted by law and
• Do not exclude, restrict or modify the application of the Competition and Consumer Act 2010 (Cth), as amended occasionally.

12              GST

12.1          Unless otherwise stated, all amounts payable by the Customer include GST.

12.2          The Customer agrees to pay GST concerning any goods or services that the Provider supplies to the Customer and/or are supplied to the Customer on behalf of the Provider.

13              Insurance

The Customer must obtain comprehensive travel and medical insurance, including (but not limited to) coverage for medical expenses, evacuation charges, trip cancellation and force majeure events.

14              Force Majeure Event

14.1          If any Force Majeure Event results in the Provider being prevented from, or delayed in, performing any of its obligations to the Customer:

(a)              then such a delay or prevention of performance shall not be deemed to be a breach of contract or these T&Cs;

(b)              no loss or damage shall be claimed by the Customer from the Provider by reason thereof; and

(c)              The Provider shall use its best endeavours to minimise and reduce any period of restriction or interference occasioned by the Force Majeure Event.

14.2          In the event of a Force Majeure Event, the Provider, in its absolute discretion, may:

(a)              Substitute a different or equivalent Activity in place of cancelled or modified Activity;

(b)              postpone, cancel or delay (either concerning the departure or arrival dates) any aspect of the Activity if, at the absolute discretion of the Provider, it is necessary to do so;

(c)              offer a transfer of the Activity, or part thereof, to an alternative date within 24 months (or such more extended period as is reasonable and determined by the Provider in the circumstances), which transfer option is subject to availability;

(d)              offer a credit, to the value of any monies paid, which credit will be valid for travel within 24 months from the issue date (or such other more extended period as determined by the Provider in its absolute discretion), provided that:

(i)           any additional costs payable on the new Booking will be payable by the Customer in full;

(ii)          additional costs may apply for the Activity in future seasons;

(iii)        credit terms and conditions are final;

(iv)        credits are not able to be extended beyond their expiry date, and

(v)          the credit, or any balance on a partially used credit, is not redeemable for cash.

15              Personal Information

15.1          The Provider may use the Customer’s personal information, which may be disclosed to the Provider’s Representatives, agents, service providers, suppliers, or other third parties for any purpose associated with the Booking. Any use or disclosure of the Customer’s personal information by the Provider will follow the Privacy Act 1988 (Cth).

15.2          The Customer acknowledges that the Provider or its Representatives may take photos or video of the Customer. These images may be used in any promotional materials, website, or all social media platforms (i.e. Instagram), etc., unless the Customer expressly requests in writing to the Provider not to use the Customer’s image. Otherwise, the Provider is granted a perpetual, royalty-free, worldwide, irrevocable licence by the Customer to use such images for publicity and promotional purposes.

16              Severance

Suppose any part of the T&C is wholly or partly invalid, unenforceable, illegal, void or voidable. In that case, the T&C must be construed as if that provision or part of a provision had been severed from the T&C and the parties remain bound by all of the requirements and part provisions remaining after severance.

17              Governing laws

17.1          The T&C are governed by and shall be construed following the laws of the State of Western Australia.

17.2          The parties irrevocably:

(a)              Submit to the exclusive jurisdiction of the Courts of Western Australia and the Courts competent to determine appeals from those Courts:

(i)           for determination of any dispute claim or demand; or

(ii)          with respect to any proceedings which may be brought at any time relating to these T&C,

(b)              waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum.