NOR’EASTER PTY LTD, trading as BALMORAL WATER SPORTS CENTER ABN 20 688 721 477 (BWSC)

SAFETY DECLARATION and EQUIPMENT HIRE WAIVER & AGREEMENT

ADULT PARTICIPANT FORM (18 YEARS AND OVER)

Each participant aged 18 or over must complete and sign their own form before hiring or using equipment. This form must not be used for a participant under 18.

In this form, Customer means the person completing and signing this form; participant means the Customer;  and BWSC means Nor’Easter Pty Ltd trading as Balmoral Water Sports Center.

BWSC collects personal information to administer equipment hire, assess safety requirements, contact emergency services or emergency contacts where necessary, process payments and meet its legal obligations. BWSC will handle personal information in accordance with its Privacy Policy, available at https://www.balmoralwatersportscenter.com.au/privacy-policy. The Customer confirms that any personal information supplied about another person has been provided with that person’s knowledge or as otherwise permitted by law. The Customer consents to BWSC collecting health information about the Customer for these purposes, and to BWSC disclosing that information to emergency services, medical providers and BWSC’s insurers where reasonably necessary. Information submitted through this form may be stored or processed by BWSC’s service providers outside Australia. BWSC will retain this information for the term of this agreement and afterwards only for as long as reasonably required for legal, insurance or record-keeping purposes.

Safety Checklist

The Customer confirms that each of the following statements is true at the date of signing and will be true at the time of each hire during the term of this agreement:

• I can swim at least 25 metres unassisted*

• I am fit and healthy enough to participate*

• I will receive and understand BWSC’s safety briefing and instructions and will be given an opportunity to ask questions about the activity, equipment and relevant risks before going on the water *

• I will be provided with and will wear at all times a correctly fitted buoyancy aid or other required safety equipment *

• I am aware of designated sailing/paddling zones and NO GO areas*

• I will comply promptly with all reasonable directions given by BWSC staff and will stop the activity if BWSC reasonably considers that continued use is unsafe or contrary to this agreement*

• I will return equipment in good condition, subject to fair wear and tear*

• I have disclosed every medical condition, injury, disability, medication or other circumstance that may materially affect safe participation *

• I am not affected by alcohol, illegal drugs or any medication that impairs safe participation *

Waiver & Key Terms

Important Risk Warning

The activities offered by BWSC are recreational activities that involve significant risks. Those risks may result in serious personal injury or death. The risks include, but are not limited to:

1. drowning or near drowning;

2. falling, capsizing, collision or impact with equipment, vessels (including ferries and other commercial vessels), people, rocks, structures or other objects;

3. strong or offshore winds, waves, currents, tides, cold water, heat, sun exposure and sudden changes in weather;

4. equipment malfunction, breakage or incorrect use;

5. cuts, abrasions, sprains, fractures, head injuries and other physical injuries;

6. delayed rescue or limited access to medical assistance while on the water;

7. encounters with marine life, including sharks, stingrays and stinging jellyfish, which may cause serious injury or death;

8. the conduct, inexperience or error of the participant or another person; and

9. risks that cannot be eliminated even when reasonable care is taken.

Exclusion of Liability and Statutory Rights

Under section 139A of the Competition and Consumer Act 2010 (Cth), BWSC is entitled to ask the Customer to agree that certain statutory guarantees do not apply to the recreational services BWSC supplies. To the extent permitted by section 139A, the Customer agrees that BWSC excludes all liability for death, physical or mental injury (including the aggravation, acceleration or recurrence of such an injury), the contraction, aggravation or acceleration of a disease, or any other harmful condition or circumstance described in section 139A, resulting from a failure by BWSC to comply with a guarantee under sections 60, 61 or 62 of the Australian Consumer Law in supplying recreational services. This exclusion does not apply to significant personal injury caused by BWSC’s reckless conduct, within the meaning of section 139A(5).

Nothing in this agreement excludes, restricts or modifies:

(a) any consumer guarantee, right or remedy under the Australian Consumer Law that cannot lawfully be excluded, restricted or modified;

(b) liability for significant personal injury caused by BWSC’s reckless conduct; or

(c) any other liability that cannot lawfully be excluded or limited.

If this agreement is inconsistent with BWSC’s Terms & Conditions, this agreement prevails to the extent of the inconsistency.

In this agreement, Released Persons means BWSC and its officers, employees, contractors and volunteers. BWSC accepts the benefit of each release and exclusion in this agreement for itself and as agent and trustee for each other Released Person.

Term of this Agreement

This agreement takes effect on the date it is signed and applies to each hire or use of BWSC equipment by the Customer until 11:59 pm on 31 December 2027 (Expiry Date). A new form is not required for each hire during that period unless circumstances relating to any statement in the Safety Checklist have changed. After the Expiry Date, a new form must be completed and signed before any further hire or use of equipment.

Before each hire, the Customer must notify BWSC of any change to the information in this form, including any new or changed medical condition, injury, disability or medication, and any change to the Customer’s contact details or emergency contact.

If any Safety Checklist statement is not true on the day of hire, the Customer must not use the equipment unless BWSC has been notified and agrees.

This agreement covers only the Customer. Each other person who hires or uses equipment must complete their own form or, for a person under 18, the Parent/Guardian Form for Minors.

BWSC may require a new form to be completed before any hire, including where BWSC has updated this form. Expiry of this agreement, or replacement of it by a new form, does not affect any right, release, exclusion, limitation or obligation in respect of a hire or use of equipment that occurred before then.

Equipment Use and Return

The Customer agrees:

1. to inspect the equipment before use and promptly report any visible damage or defect;

2. to use the equipment only for its intended purpose and in accordance with BWSC’s instructions;

3. not to alter, transfer, sub-hire or permit unauthorised persons to use the equipment;

4. to keep the equipment secure and under appropriate control;

5. to return the equipment to BWSC at the end of the hire period and to notify BWSC immediately of any accident, loss, damage or equipment malfunction.

The Customer is responsible for the reasonable cost of repairing or replacing equipment that is lost, stolen or damaged as a result of misuse or unauthorised use, failure to follow instructions, negligent or deliberate conduct, or any breach of this agreement. The Customer is not responsible for fair wear and tear, pre-existing damage recorded before hire, or equipment failure not caused or contributed to by the Customer or a participant.

By signing below, I confirm that the information I have provided is accurate and complete, that I have read and understood this agreement, and that I agree to be bound by this agreement. To the maximum extent permitted by law:

• I understand that water sports carry risks, including those listed above. I acknowledge that the nature and severity of these risks may vary according to the activity, location, weather, water conditions, the participant’s experience and the equipment used.

• I agree to participate and/or hire equipment at my own risk.

• Subject to the clause headed “Exclusion of Liability and Statutory Rights”, I release BWSC and the other Released Persons from all liability for harm resulting from participation in the recreational activities, including harm caused by negligence, to the extent permitted by the Civil Liability Act 2002 (NSW).

• I confirm that the emergency contact is not participating in the activity and has agreed to their contact details being provided to BWSC.

• I understand that if BWSC reasonably considers that a participant requires urgent medical or rescue assistance, BWSC may contact emergency services and provide reasonable assistance (including first aid), and that the Customer remains responsible for ambulance, medical, rescue or evacuation charges to the extent permitted by law and not otherwise covered by the Customer’s insurance.

• I accept responsibility for securing personal belongings, and understand that BWSC is not responsible for loss of or damage to personal belongings, except items that BWSC has expressly agreed to hold for safekeeping, or loss or damage caused by BWSC’s negligence.

• I agree to follow all rules, use equipment safely, and return it promptly, subject to fair wear and tear.

• I understand that returning equipment after the agreed return time may incur additional charges at the rates displayed at reception and on BWSC’s booking page.

I have read and agree to Balmoral Water Sports Center’s full Terms & Conditions (available at reception or online) as in force at the date of signing. If BWSC updates its Terms & Conditions before the Expiry Date, the updated version applies to a later hire only if BWSC has notified the Customer of the update before that hire.