Terms and Conditions of Equipment Hire and Provision of Services

1. These terms and conditions apply to the hire by YMCA Camping Ltd ACN 606 062 793 (YMCA) of the equipment described on the front of this document (Equipment), and the supply by YMCA of the services described on the front of this document (Services), in each case to the person named on the front of this document (you or your) and to any child whom you accompany and who uses the Equipment or participates in the Services (accompanied child),

2. You represent and warrant to YMCA that you are:

(a) 18 years of age or older;

(b) the parent or legal guardian of any and each accompanied child and are authorised to enter into this agreement on behalf of the accompanied child.

3. To the best of your knowledge, neither you nor the accompanied child is not suffering from a condition that would prevent and/or render you or the accompanied child unfit from using the Equipment for its intended purpose or from participation in the Services.

4. It is your sole responsibility to determine whether or not you and the accompanied child are sufficiently fit and healthy enough to use to use the Equipment and to participate in this Services. You are solely responsible for your and the accompanied child’s own safety and wellbeing at all times and circumstances while using the Equipment and participating in the Services.

5. The use of the Equipment and participating in the Services may involve a real risk of serious injury or even death from various causes including but not limited to over exertion, dehydration, falling down or tripping over and accidents, collisions or contact with other persons or spectators.

6. You voluntarily assume all risks associated with your and the accompanied child’s use of the Equipment and participation in the Services or any associated activity. You will take all measures to protect yourself and the accompanied child from the risks of participation. You accept all responsibility for travel and medical insurance and for payment and/or reimbursement of medical/surgical expenses incurred by you or the accompanied child due to your use of the Equipment or participation in the Services.

7. You hereby consent to receiving and the accompanied child receiving medical treatment that may be deemed advisable in the event of injury, accident and/or illness.

8. There is an inherent risk in skiing, snowshoeing and tobogganing and associated activities.

9. To the extent permitted by law, you unconditionally and irrevocably:

(a) agree that you will not make any claims against YMCA; and

(b) release YMCA (and its directors, officers, employees, representatives, volunteers, sponsors, contractors, subcontractors (and their respective employees) or agents) (individually and collectively, the “Released Parties”) from and against any liability, claims, causes of action, suits or proceedings, including claims for costs or expenses of any nature for any loss, injury, damage of any description whatsoever (including but not limited to injury, death or property damage, and indirect or consequential damage) (“Claim”) arising out of or in connection with your and the accompanied child’s use of the Equipment and participation in the Services, howsoever caused, including due to any negligent or wilful acts or omissions by the Released Parties or any of them; and

(c) indemnify the Released Parties from and against all claims (including negligence) whatsoever and howsoever caused arising as a result of or in connection with your and the accompanied child’s use of the Equipment and participation in the Services including any injury, death or property damage suffered by a third party. 100717

10. Provisions of the Competition and Consumer Act 2010 (Cth) and Australian Consumer Law and Fair Trading Act 2012 (Vic) imply into contracts for the supply of certain goods and services, warranties that services will be rendered with due care and skill and that goods supplied will be reasonably fit for purpose. Those provisions do not apply to these terms and conditions to the extent that they can be excluded insofar as they relate to liability for death, personal or mental injury, a disease or something that is harmful or disadvantageous to an individual or the community. In particular:

(a) the application of sections 60 and 61 of the Australian Consumer Law (Victoria) and the provisions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) are excluded and all rights under the relevant provisions are excluded and all liability of YMCA is excluded in relation to the supply of recreational services and in relation to a breach of any warranty implied by the relevant provisions in relation to the supply of recreational services under these terms and conditions to the extent the exclusion, restriction and modifications is limited to liability for death or personal injury;

(b) you acknowledge that the supply of the Equipment and Services constitutes recreational services within the meaning of section 139A of the Competition and Consumer Act 2010 (Cth) and section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) as the supply of the Equipment and Services are:

(i) a sporting event or similar leisure time pursuit; and/or

(ii) other activity that involves a significant degree of physical exertion or physical risk and is undertaken for the purpose of recreation, enjoyment or leisure.

Warning under the Australian Consumer Law and Fair Trading Act 2012 (Vic): Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that YMCA is required to ensure that the recreational services its supplies to you and the accompanied child:

(a) are rendered with due care and skill; and

(b) are reasonably fit for any purpose which you, either expressly or by implication, make known to YMCA; and

(c) might reasonably be expected to achieve a result you have made know to YMCA.

Under section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), YMCA is entitled to ask you to agree that these statutory guarantees do not apply. If you sign this document, you will be agreeing that your rights to sue YMCA and other parties under the Australian Consumer Law and Fair Trading Act 2012 (Vic) if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in these terms and conditions and to the extent permitted by law. Note: the changes to your rights as set out in these terms and conditions, do not apply if your death or injury is due to gross negligence on YMCA’s part. ‘Gross negligence’ in relation to an act or omission, means doing the act or omitting to do any 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 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.

11. No warranties, implied or express, have been made to you and the accompanied child that the Equipment or Services will be provided with due care and skill or that any materials provided in connection with the Equipment or Services will be fit and proper for the purpose for which they are supplied.

12. Without limiting any other provision of this document, you shall compensate YMCA for the loss of and for any damage (other than fair wear and tear) caused to Equipment whilst on hire to you. You shall be responsible for all losses and / or damages which may arise and for all costs and other expenses relating thereto founded upon or resulting from any breach by you of this condition and you shall hold and keep YMCA indemnified from and against liability in respect thereof.

13. You shall not remove deface or cover up or cause to be removed defaced or covered up any identifying marks of ownership on the Equipment.

14. You agree not to dry boots in any form of oven or stove or leave in front of an open fire or in a drying room at a temperature over 100 degrees. Any breach of this term which causes damage to Equipment will constitute damage referred to in condition 13.

15. You agree to return all Equipment by 4.00pm on the return date specified on the front of this document. If all Equipment is not returned by 4.00pm, another day’s hire will be due and payable and continue to be due and payable at 4.00pm on each and every day that the Equipment is not returned. Also any cost incurred in the return of the Equipment will be your responsibility and you agree to make every reasonable effort to return the Equipment by the quickest available means.

16. You agree to only use the Toboggan in the designated area set aside by the Falls Creek Resort Management for the purpose of the toboggan activity. You will need to familiarise yourself with the Snow Safe toboggan warnings and suggestions to increase toboggan awareness to minimise risk.

Privacy and Collection of Personal Information

COLLECTION STATEMENT

Your personal information is being collected by YMCA for the purposes of communications and marketing of YMCA’s goods and services. YMCA may disclose your personal information to third parties such as the Falls Creek Resort Management who provide their services to YMCA for marketing goods and services. Please contact YMCA if you do not wish YMCA to use or disclose your personal information to provide your information, updates or news about other goods and services. YMCA is bound by the Australian Privacy Principles under the Privacy Act 1988 (Cth). You can access YMCA’s privacy statement online for more information about YMCA’s privacy practices.

17. You acknowledge that your and the accompanied child’s personal information will be collected by YMCA for the purpose of marketing including communicating with you and the accompanied child about Cross Country Skiing.

18. You understand that by supplying YMCA with your and the accompanied child’s email address you consent to receiving and the accompanied child receiving marketing material from YMCA. You and the accompanied child can opt-out of receiving marketing material at any time by contacting fallscreekxc@ymca.org.au.