In this Agreement:
• “Activity” means the Jarramali Rock Art Tours which involves a 4WDriving, Bush Walking, Bush Cooking, Sightseeing, Camping and Indigenous Touring.
• "Australian Consumer Law" means schedule 2 of the CCA and any equivalent state or territory legislation.
• "CCA" means the Competition and Consumer Act 2010 (Cth).
• "Consumer Guarantee" means right or guarantees a participant may have under the Australian Consumer Law or other rights in relation to the supply of goods or services that cannot lawfully be excluded or limited.
• “Consequential Loss” means any loss or damage suffered by aparticipant or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.
• "Excluded Recreational Liabilities" means liabilities described in section 139A(3) of the CCA which, without limitation, includes liability for death, physical or mental injury, or contraction or aggravation of any disease.
• "Reckless Conduct" has the meaning set out in section 139A(5) of the CCA; and
• "Recreational Services" has the meaning set out in section 139A(2) of the CCA.
1. Rules, Terms and Conditions
These are the Terms and Conditions under which you book your tour with Jarramali Rock Art Tours . Once you make a payment towards your tour, you become bound by these Terms and Conditions, so it is important that you read them carefully.
Certain laws such as the Competition and Consumer Act 2010 (Cth) and any applicable state-based consumer legislation (from here known as ‘consumer laws’), are in place for your protection. They are designed to ensure our services are provided with due care and skill and are reasonably fit for a tour holiday. These Booking and Tour Conditions do not alter any protection given to you by consumer laws.
Tour itineraries are not guaranteed
We will do everything we reasonably can to make sure everything goes according to plan; however, sometimes changes can happen that may affect your holiday experience. Many factors may affect our ability to provide any particular itinerary. These include weather, mechanical difficulties, civil unrest or other unforeseen circumstances. We agree to use reasonable endeavours to provide a tour in accordance with our published schedules and itineraries. However, we do not guarantee itineraries and they do not form part of your contract with us.
In addition, we may charter all or part of the tour vehicle or remove the vehicle from service where this becomes necessary. We may change the itinerary, vehicle or cancel the tour due to operational or commercial requirements. We will notify you of these changes as soon as we can. If we are forced to cancel your tour for any reason prior to departure we will provide a full refund. Since your itinerary is not guaranteed, please do not make any important arrangements or meetings based on the proposed itinerary.
Changes within our control
Where we make a significant change to your itinerary prior to departure and this is due to a circumstance within our control, for example for operational or commercial requirements you will have the choice of:
1. the new itinerary;
2. an alternative tour of comparable standard, if available; or
3. cancelling the tour for a full refund of your fee paid.
For the purposes of this clause, 'significant change' means the date or location of departure.
Changes outside our control
If it is necessary to change the itinerary due to safety, law, severe weather, to protect human life or health or other factors outside our control, we will attempt to offer a revised itinerary as close as possible to the original itinerary. We will not provide any compensation in connection with the revised itinerary unless consumer laws require otherwise.
Your Health and Fitness
You must ensure that you are medically and physically fit for the activities that form part of the tour, and that such activities will not endanger yourself or anyone else. At the time of booking (or as soon as possible after booking), you must advise us if you have any medical or physical condition that will or may require medical attention, medication or special treatment during your tour. We may also ask you to complete a health questionnaire.
If a participant has a condition that we decide may seriously affect the enjoyment, health or safety of themselves or any other person on the tour, we can refuse or cancel a booking. Such decisions will be made giving reasonable consideration to your circumstances and we will advise you of our decision as soon as possible. Where your booking is cancelled and you have provided us with a completed health questionnaire with all relevant information about your condition, you will be entitled to a full refund.
Participants with restricted or limited mobility, and those with medical conditions must be self-sufficient or travel with a carer or someone who can assist with activities. Our staff are unable to act as personal carers.
Please note that some locations on the tour may not be accessible to participants confined to a wheelchair or with significant mobility impairments.
Participants who are pregnant during their tour are required to supply a physicians ‘fit to travel’ note, including your estimated due date, prior to commencing the tour. We are unable to accept any participants who will have entered their 24th week or later of pregnancy, at the date of the tour.
Children & Teenagers
Parents/Legal guardians are responsible for children and teenagers at all times. If a child or teenager displays dangerous or disruptive behaviour, the ‘Rights of the Operator’ will be applied to both parent/legal guardian and child/teenager.
Illicit and prohibited items
To ensure a safe and enjoyable tour for all our participants items which may pose a risk to the safety of participants and staff are not allowed to be brought on the tour: Alcohol, illegal drugs, illicit substances, flammable liquids, and weapons (including knives of any kind).
Any prohibited items found will be confiscated and, if appropriate, will be available for collection at the end of the tour. We can deny embarkation or disembark at any point of the tour any person in possession of any weapons or illicit substances. We may also hand these items over to law enforcement agencies.
Smoking is permitted on the tour as long as all butts are put in bins provided.
Lost or damaged personal belongings
Please make sure that all valuable and important items, such as jewellery, medicines, fragile items, and camera/computer/electrical equipment are carried on your person and not left unsecured in the tour vehicle or elsewhere. Any personal belongings left behind and not claimed within 3 weeks of the tour return may be donated to charity or destroyed.
Where consumer laws and other laws permit us to exclude our liability, we will not be liable for loss of, or damage to, any personal belongings, unless caused by our proven negligence or failure to provide services with due care and skill and that are reasonably fit for purpose.
Rights of the Operator
Once the tour has commenced, if a participant seriously affects the safety, well-being or enjoyment of themselves or any other person, the Operator has the right to confine, sedate or disembark the participant. In such cases, we are not responsible for any expenses including your return home. In addition, you will not be entitled to any refunds. While the Operator will always act reasonably in these circumstances, you accept that the safety, well-being and enjoyment of everyone on the tour comes first.
Leaving the tour early
If you are required, or choose, to leave the tour for any reason (unless caused by our proven negligence or failure to provide services with due care and skill and that are reasonably fit for purpose), we are not responsible for any expenses, including your return home. This also applies if you do not return to the tour vehicle in time for departure after visiting a location on foot. If we assist with any costs, you will need to repay us on your return. In addition, you will not be entitled to any refunds.
During the booking process and your tour, we ask for personal information about you. By providing this information, you authorise us to handle your personal information in the ways indicated below:
• to collect personal information within the meaning of the Privacy Act 1988 (Cth) about you:
• from any third party making a booking on your behalf for tour administration purposes;
• if you are travelling as part of a group – from any person in the group for tour administration purposes;
• from any third party where it is necessary to provide a health service to you (including a medical disembarkation) and you are unable to provide the information directly;
• for security purposes;
• for accident/incident reporting, investigation and management purposes;
• Where lawful and reasonably necessary to perform our functions or activities, we may be required to collect sensitive information including, information about health, race and criminal record.
• to disclose your personal information:
• to your travel agent for tour administration purposes, including any information relating to travel bans;
• where you book as part of a group – to every participant in your group (excluding credit card details);
• to an emergency contact person you have nominated for emergency management purposes;
• to government departments/agencies/bodies including police In Australia.
Note: Where lawful we may also be required to disclose sensitive information about you to the entities listed above.
• to use and disclose your personal information, and, where lawful, your sensitive information:
• for reporting, assessing, investigating, processing and otherwise managing accidents/incidents, including disclosures to lawyers and insurers;
• for public health and quarantine purposes;
• for medical treatment purposes, including disclosures to health service providers, medical evacuation assistance companies and, where you are unable to consent, next of kin.
• where we need to disclose your personal information to someone who is not in Australia – to transfer your personal information outside Australia;
• where we need to disclose your health information to someone who is not in Queensland or to a Commonwealth agency – to transfer your health information outside Queensland or to the Commonwealth agency;
• in the event that you lodge a complaint or claim about any matter with or in relation to us – to use and disclose your personal information for the purpose of reporting, assessing, investigating, processing, responding to and resolving your complaint or claim, including disclosures to relevant government departments/agencies/bodies, courts/tribunals, your travel agent, any authorised representative acting on your behalf and lawyers. You also authorise us to collect from any third party sensitive information about you within the meaning of the Privacy Act 1988 (Cth), and for any third party to disclose personal information about you to us, for the above-mentioned purpose.
Permission to use photos and video
You consent to your image being taken and used and reproduced in any format. You understand that your image may be used for the purposes of display, publicity and in promotional materials by Jarramali Rock Art Tours and its photographer(s)/videographer(s). You understand that any intellectual property, including copyright and image rights, which arises in the visual images(s) belongs to Jarramali Rock Art Tours.
3. Acknowledgement and Assumption of Risk
Risks of the Activity
The Risks of the Activity:
• Risk of being hit by vegetation or debris while in a motor vehicle;
• Risk of being involved in a motor vehicle accident including but not limited to falling out of the tour bus wholly or in part and suffering injury as a result;
• Risk of being injured or killed by wild animals including, but not limited to, buffalo, crocodiles, snakes, goannas and spiders;
• Risk of food poisoning and allergic reactions;
• Risk of consuming food containing stones or metal fragments;
• Risk of slipping and falling due to the surface of the tracks;
• Risk of injury through use of Indigenous tools and implements.
Acknowledgment and warranty
You hereby acknowledge that:
a) You have been supplied access to, and the opportunity to read, a copy of our Booking and Tour Terms and Conditions and voluntarily enter into this Agreement with us in accordance with those Terms and Conditions.
b) The Activity constitutes the supply of a Recreational Service by us to you.
c) The natural conditions in which the Activity is conducted may vary without warning.
d) The Activity is a dangerous activity which involves a significant risk of physical harm.
e) You have been warned of the risks associated with the Activity and that the Activity may also involve other risks not included in the risks listed above.
f) You are aware that you may be injured in performing the Activity.
g) Your being under the influence of drugs, alcohol or other mind-altering substances is likely to increase the risk to you of being injured or killed while undertaking the Activity and you accept full responsibility for any injury, loss or damage associated with your consumption of alcohol, drugs or other mind-altering substances.
h) The Booking and Tour Terms and Conditions exclusively records the entire agreement between you and us in relation to the Activity and your participation in it.
i) In addition to the Booking and Tour Terms and Conditions you have been provided with written and oral warnings regarding the Risks of the Activity as disclosed in the Booking and Tour Terms and Conditions as well as other, additional risks.
You hereby warrant that:
a) Your participation in the Activity is voluntary and you have not been required by us to participate in the Activity.
b) You have accurately disclosed to us all relevant information, including about pre-existing medical conditions, that may affect the risk that you or any other person will suffer injury, loss or damage.
c) You are not under the influence of drugs, alcohol or other mind-altering substances.
d) You will report all accidents and injuries sustained during the Activity to a representative of Jarramali Rock Art Tours.
e) You will comply with all rules and directions made or given by any representative of Jarramali Rock Art Tours in connection with the Activity. You understand that if you fail to comply with the rules and/or directions of representatives of Jarramali Rock Art Tours you may be injured or injure someone else and you will not be permitted to continue the Activity and no refund will be given.
f) Despite the risks that have been disclosed to you by the Booking and Tour Terms and Conditions, oral and written warnings you wish to participate in the Activity at your own risk.
4. Waiver, release and indemnity
You agree to release and hold harmless Jarramali Rock Art Tours, our agents, servants and employees from and against liability arising out of any physical or mental injury arising out of any voluntary or unauthorised act by you, negligence, breach of this agreement, failure to follow our directions or heed our warnings (including those contained in the Booking and Tour Terms and Conditions).
Limitation of liability for Recreational Services
Save for liability for significant personal injury caused by Reckless Conduct by us or our servants or agents, we exclude liability for all Excluded Recreational Liabilities arising out of the supply of Recreational Services.
Our liability will be reduced in proportion to any negligence or fault on your part.
Notification of Claims
You agree to use all reasonable efforts to report any complaints or claims during the tour, or otherwise bring the matter to our attention as soon as possible. You acknowledge that failure to bring any matter to our attention whilst on the tour will limit our ability to investigate the matter following your tour.
No Contra Proferentum
The rules of construction will not apply to the disadvantage of a party because that party was responsible for drafting these Booking and Tour Terms and Conditions or any part of them.
Choice of law and jurisdiction
This contract is governed by the laws in force in Queensland. You agree that any action you bring against us will be brought in Cairns in the State of Queensland. If you have a claim against us, you agree only to bring action against us and not any of our related bodies corporate as defined in the Corporations Act 2001 (Cth).
• If it is held by a court of competent jurisdiction that:
• a part of this Agreement is void, voidable, illegal or unenforceable; or this Agreement would be void, voidable, illegal or unenforceable unless a part of it were severed,
that part is severed from and does not affect the continued operation of the rest of this Agreement unless to sever that part would change its principal commercial purpose.