1. Definitions & Interpretations

1.1 In these Terms and Conditions, the following terms have the following definitions:

“Claims” means and includes any action, suit, proceeding, Consequential Loss, demand, damage, penalty, cost or expense however arising (including negligence, trespass to the person etc.) in the provision of the Services or Goods;

“Consequential Loss” means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss;

“Contract Price” means the price for provision of the Services or Goods as nominated by Gnarly Tours from time to time, and must be paid in Australian currency;

“Customer” means the customer or recipient of the Goods and Services from Gnarly Tours;

“Force Majeure Event” means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbance, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and disposition or orders of governmental authority, whether new or existing at the date of these Terms and Conditions, involving orders arising as a result of novel coronavirus (COVID-19) and any suspension on gatherings which:

(a) directly or indirectly result in a party being prevented from delayed in performing any of its obligations under these Terms and Conditions; and

(b) is beyond the reasonable control of that party.

“Gnarly Tours” means Gnarly Tours Pty Ltd ACN 624 818 819 (ABN 82 624 818 819), its employees, agents, representatives and assignees;

“Goods” means any products purchased from Gnarly Tours by the Customer;

“GST” has the meaning given to that term in the Goods and Services Tax Act 1999, or its successor;

“Loss” means any judgment, debt, damage, loss, cost, expense, or liability however so arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise;

“Services” means any services provided by Gnarly Tours to the Customer, including (but not limited) to any water sports, surfing lessons, or other activity;

“Supply of Goods and Services” means the supply of Goods and Services by Gnarly Tours to the Customer, including from the Website;

“Terms and Conditions” means these Terms and Conditions, and any amendment by Gnarly Tours to those Terms and Conditions which may be made in Gnarly Tours’ sole and absolute discretion from time to time without notice, with any such amendment effective immediately; and

“Taxable Supply” has the meaning given to it in the Goods and Services Tax Act 1999, or its successor.

1.2 In this document unless the context otherwise requires:

(a) clause and subclause headings are for reference purposes only;

(b) the singular includes the plural and vice versa;

(c) where a word or phrase is defined its other grammatical forms have a corresponding meaning;

(d) references to statutes include all statutes amending, consolidating or replacing such statutes;

(e) $ means the lawful currency of Australia, and is inclusive of GST unless otherwise specified;

(f) any reference to a party to this document includes its successors and permitted assigns; and

(g) the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it.

2. Warranties and Acknowledgements

2.1 Customer Warranties

The Customer warrants and agrees that he/she/it/they:

(a) understand that participating in the Services can be inherently dangerous;

(b) understand the nature and requirements of the Services and acknowledge that serious injuries can and often do happen which may result in he/she/it/they being seriously injured or even killed;

(c) has voluntarily read and understood these warranties and warnings, and accept and assume the inherent risks in participating in the program;

(d) Is of good physical fitness, and does not have any injury, disability, medical or health condition that may impact the ability to participate in the Services, or increase the risk of becoming injured;

(e) has expressly told Gnarly Tours (both in writing and verbally) about any such physical or mental ailment or injury and I will only participate in the Services if Gnarly Tours has expressly authorised me to participate;

(f) they are medically and physically fit and able to participate in the Services and will immediately notify Gnarly Tours of any change to my fitness and ability to participate as soon as it occurs.

(g) will at all times comply with the instructions and safety procedures of Gnarly Tours from time to time;

(h) if reasonably required, that Gnarly Tours crew may arrange medical or hospital treatment (including ambulance transportation) for me, and I authorise such action to take place at my own cost and expense. I acknowledge that any such associated costs are borne by me, and not to be borne by Gnarly Tours at all; and

(i) understands that the information provided in this form is necessary for the operation of the Services. I acknowledge and agree that the information will only be used for the objects of the Gnarly Tours and to provide me with information pertaining to the Services. I understand that I will be able to access my information through Gnarly Tours upon request. If the information is not provided, I might not be able to participate in the Services.

2.2 Acknowledgement

The Customer acknowledges and agrees that he/she/it/they:

(a) consents and agrees that Photographic and visual images taken by Gnarly Tours of my participation in the Services may be used for general promotion of Gnarly Tour’s Services and activities and can be published on the page of Gnarly Tours on Facebook;

(b) will provide proof of identification on request by Gnarly Tours, including a passport, drivers licence, or such other identification as may be required by Gnarly Tours.

2.3 Contract Price and Provision of Services

(a) The Customers agrees it must pay the Contract Price at the times nominated by Gnarly Tours.

(b) The Customer agrees if he/she/it/they fail to pay the Contract Price by the date nominated by Gnarly Tours, then Gnarly Tours may charge interest on overdue amounts at a rate of 5% per month.

(c) All amounts payable under these Terms and Conditions are inclusive of GST.

(d) Gnarly Tours reserves the right to cancel its Services at any time in its sole and absolute discretion (including without limitation for example, inclement weather, staff unavailability, technical error).

3. Release and indemnity

3.1 The Customer releases and forever discharges Gnarly Tours from all liability and Claims that the Customer may have now or in the future arising from or in connection with the Services or Goods, including any cancellation of Services in accordance with these Terms and Conditions..

3.2 To the extent permitted by law, the Customer, indemnifies and keeps Gnarly Tours forever indemnified, against all Claims, costs, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and Consequential Loss (including loss of profit) which may be made by or against Gnarly Tours or the Customer or which any party may sustain, pay or incur as a result of or in connection with the provision of Services or manufacture, sale, export, import or use of the Goods as the case may be..

4. General

4.1 A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address.

4.2 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.

4.3 Gnarly Tours may sub-contract the performance of any performance of the Services to any third party.

4.4 These Terms and Conditions contain the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

4.5 The failure of either party to enforce any previsions under these Terms and Conditions will not waiver the right to such a party therefore to enforce any such previsions.

4.6 If any term or provision of these Terms and Conditions are held by a court to be illegal, invalid or unenforceable under the applicable law, that the term or provision will be served from this agreement to the remaining Terms and Conditions will be unaffected.

4.7 The Terms and Conditions are governed by, and constructed in accordance with the laws of Queensland, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland.

4.8 The Customer must not assign, transfer or otherwise deal with these Terms and Conditions or any right them without the prior written consent of the Gnarly Tours.

4.9 Any warranty, indemnity, or obligation in these Terms and Conditions will survive termination. Any other term which by its nature is intended to survive termination of these Terms and Conditions survives termination of these Terms and Conditions.

4.10 These Terms and Conditions may be varied by Gnarly Tours from time to time and the Customers agrees to any such variation.

4.11 Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

(a) to cancel your service contract with us; and

(b) to a refund for the unused portion, or to compensation for its reduced value.

4.12 You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

4.13 If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

Website

4.14 All material on the Website owned, operated, licensed or controlled by Gnarly Tours, including but not limited to images, illustrations, audio clips, and video clips, are the intellectual property of Gnarly Tours or other parties that have licensed their material to Gnarly Tours.

4.15 Material on any website owned, operated, licensed or controlled by Gnarly Tours is solely for your personal, non-commercial use to the extent permitted by Gnarly Tours in its sole and absolute discretion. Such material may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of Gnarly Tours.

4.16 Use of the materials on any other website or networked computer environment, or use of the materials for any purpose other than personal, non-commercial use is a violation of Gnarly Tours’ intellectual property rights and is prohibited.

4.17 The Website may contain links to external websites that are not operated by Gnarly Tours or related bodies corporate. Gnarly Tours does not make any endorsements, or representations as to the accuracy of information contained within those websites. These links are provided for convenience only and the Customer agrees that:

(a) Gnarly Tours makes no representations or warranties, or have any responsibility or liability for those websites;

(b) these links do not indicate, expressly or impliedly, that Gnarly Tours endorses the site or the products or services that are provided at those sites; and

(c) access and use the products and services made available at those sites solely at your own risk.

4.18 Gnarly Tours does not claim that any information (including any files) obtained from or through the Website is free from viruses or other faults or defects.

4.19 The Customer is responsible for scanning any information for viruses, and agrees that Gnarly Tours has no responsibility or liability to the Customer or any other person for any loss or damage (whether direct, indirect, consequential or economic), regardless of cause, negligence or otherwise, which may be the direct or indirect result of any such information.

4.20 The rights and obligations of the parties under a Contract or the Terms and Conditions do not merge on completion of any transaction contemplated by that deed, contract or Terms and Conditions.

4.21 Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to any contract, or these Terms and Conditions, and any transaction contemplated by it.