McCrae Yacht Club Conditions of Entry
THIS IS AN IMPORTANT DOCUMENT AND YOU SHOULD READ IT CAREFULLY. BY AGREEING TO THIS ENTRY, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
IN CONSIDERATION OF MY ENTRY BEING ACCEPTED I ACKNOWLEDGE AND AGREE TO THE FOLLOWING:
- In this Event application and declaration: “Club” means and includes: “McCrae Yacht Club Inc.” and its directors, officers, members, servants or agents. "Claim" means and includes any action, suit, proceeding, claim, demand, damage, penalty, cost or expense however arising including but not limited to negligence BUT does NOT include a claim against the Club by any person expressly entitled to make a claim under a Club insurance policy or a claim against the Club under any right expressly conferred by its constitution or bylaws.
- Approval to enter: I hereby declare that I am aware of no reason why I should not be issued with the entry to the Event requested. I assume exclusive liability for the entry and for the use that I shall make of the entry to the Event.
- Rules of competition and participation: I hereby undertake to be bound and abide by the Racing Rules of the ISAF; the prescriptions and Racing Regulations of Yachting Australia (copies of which are available from Yachting Australia). Attention is drawn to RRS Fundamental Rule 4, which states: “The responsibility for a boat’s decision to participate in a race or to continue racing is hers alone”. I will participate in the Event in a fair and sporting manner. I will submit to disciplinary measures taken against me and will take any protects and litigation before the authorities provided for in the Racing Rules of the ISAF.
- Risk Warning: I acknowledge that the Event can be inherently dangerous and may involve risk. I recognise and understand that there are risks specifically associated with the Event which include, but are not limited to, physical exertion and injury, bodily contact, falls, equipment failure and unpredictable weather conditions. I acknowledge that accidents and injuries can and often do occur which may result in me being injured or even killed, or my property being damaged. Prior to undertaking the Event, I acknowledge I should ensure I am aware of all of the risks involved, including those risks associated with any health condition I may have.
By signing this form, I acknowledge, agree and understand that participation in the recreational services provided by the Club may involve risk. I agree and undertake any such risk voluntarily and at my own risk. I acknowledge that the assumption of risk and warning above constitutes a 'risk warning' in accordance with relevant legislation.
- 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 the supplier named on this form, the Club, is required to ensure that the recreational services supplied 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.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the supplier is entitled to ask you to agree that these conditions do not apply to you. 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 (Vic) if you are killed or injured because the services were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in 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 2012 (Vic) and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
Exclusion of rights under the Australian Consumer Law (Victoria): By signing this form, you agree that the liability of the Club for any death or personal injury (as defined in the Australian Consumer Law and Fair Trading Act 2012) that may be suffered by you (or a person from whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services is excluded.
- Waiver: I acknowledge that it is possible for a supplier of recreational services or recreational activities to ask me to agree that statutory guarantees under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) do not apply to me (or a person for whom or on whose behalf I am acquiring the services or activities). I acknowledge that If I sign this form, I will be agreeing that my rights (or the rights of a person for whom or on whose behalf I am acquiring the services) to sue the supplier in relation to recreational services or recreational activities that I undertake because the services or recreational activities provided were not in accordance with the guarantees are excluded, restricted or modified as set out in 'Risk Warning' above. To the extent of any liability arising, the liability of the Club will, at the discretion of the Club, be limited in the case of goods, to the replacement, repair or payment of the cost of replacing the goods and in the case of services, the resupply of the services or payment of the cost of having the services supplied again.
- Release and indemnity: In consideration of the Club accepting my application for entry to the Event I, to the extent permitted by law:
(a) release and will release the Club from all Claims that I may have or may have had but for this release arising from or in connection with my participation in the Event;
(b) release and indemnify the Club against any Claim which may be made by me or on my behalf for or in respect of or arising out of your death whether caused by the negligence or breach of contract by the Club or in any other manner whatsoever; and
(c) indemnify and will keep indemnified the Club to the extent permitted by law in respect of any Claim by any person:
(i) arising as a result of or in connection with my participation in the Event; and
(ii) against the Club in respect of any injury, loss or damage arising out of or in connection with my failure to comply with the club's rules and/or directions,
save that the above releases and indemnities shall not apply to the extent that the loss, damage or injury that is the subject of the Claim is caused or contributed to by the grossly negligent act or omission of the Club.
I agree and acknowledge that, to the extent permitted by law, the Club shall not be liable for any injury, loss or damage I suffer or by any other person arising from or in connection with my participation in the Event, whether such injury, loss or damage was caused directly or indirectly by the negligence of the Club or otherwise, or by the Club's servants or agents.
If I suffer any injury or illness, I agree that the Club may provide evacuation, first aid and/or medical treatment at my expense and that my acceptance of these terms and conditions constitutes my consent to such evacuation, first aid and/or medical treatment.
- Disclosure: I declare that I am and must continue to be medically and physically fit and able to participate in the Event. I acknowledge that I must, and I agree that I will, disclose any pre-existing medical or other condition that may affect the risk that either I or any other person will suffer injury, loss or damage. I acknowledge that I must immediately notify the Club in writing of any change to my fitness and ability to participate. I understand and accept that the Club will continue to rely upon this declaration as evidence of my fitness and ability to participate.
I declare that prior to competing in the Event I am or will be registered with a Yacht Club in Australia.
- Use of image: I acknowledge and consent to photographs and electronic images being taken of me during my participation in the Event. I acknowledge and agree that such photographs and electronic images are owned by the Club and the Club or other third parties may use the photographs for promotional or other purposes without my further consent being necessary.
- Bar to proceedings: The Club may plead this contract as a bar to proceedings now or in the future commenced by or on behalf of me or by any person claiming through me. I acknowledge that where I commence proceedings against the Club, I:
- will commence those proceedings in the courts of the jurisdiction in which any incident occurs;
- waive any right to object to the exercise of such jurisdiction;
- will, where I seek to commence proceedings in another jurisdiction from where any incident occurs, consent (if required by the Club) to move those proceedings to the jurisdiction in which any incident occurs including consenting to any application made by the Club to remove the proceedings to the jurisdiction in which any incident occurs;
- will pay the costs of any application made by the Club under paragraph 11 (c) and will consent to any application for security of costs made at any time by the Club; and
- consent to paying the Club's legal defence costs of the proceedings (on a solicitor client basis) where the Club successfully defends the proceedings.
- Governing law: The governing law of this agreement is the law of Victoria (‘Jurisdiction’). I irrevocably and unconditionally consent and submit to the jurisdiction of the courts of the jurisdiction in which any incident occurs and waive any right to object to the exercise of such jurisdiction.
- Entire agreement: This agreement (and the documents to which it refers) constitutes the entire agreement between the parties and supersedes all other agreements, understandings, representations and negotiations in relation to the Event.
- To the extent that any clause of this agreement is void or unenforceable it is severable and does not affect the remaining provisions of the agreement.
- I warrant that my boat complies with the safety prescriptions of Yachting Australia Inc and Yachting Victoria and that it my responsibility to ensure all equipment required under these prescriptions and my declared safety category are operational at all times.
I have read, understood, acknowledge and agree to the above declaration including the warning, exclusion of implied terms, release and indemnity. I warrant that all information provided in my Event application is true and correct. I acknowledge that this Event application declaration cannot be amended. If I do amend it my application will be null and void.