Terms and Conditions
1 Definition and interpretation
(a) Words used in these terms and conditions that are in bold face have the following meaning:
(i) ACL means the Australian Consumer Law and FairTrading Act 2012 (Vic);
(ii) Act means the Competition and Consumer Act 2010 (Cth);
(iii) Carrier means Prom Tourism Pty Ltd (ABN 68 612 789 894), of 19 Ferres Road EMERALD VIC 3782, trading as Refuge Cove Cruises;
(iv) Child Passenger means any passenger under the age of 14 years;
(v) Contract of Carriage means:
(A) these terms and conditions; and
(B) the Ticket;
(vi) Crew means any employee, agent or contractor of the Carrier near or onboard the Vessel during or in relation to the Cruise;
(vii) Cruise means the carriage of the Passenger on the Vessel by sea on the terms contained in the Contract of Carriage;
(viii) Custom Itinerary means an itinerary planned by the Carrier specifically for the Passenger or a Group Passenger.
(ix) Departure Time means the time and date, as notified by the Carrier, on which the Cruise is to commence;
(x) Excluded Events means the death and other injury and harm described in section 139B(3) of the Act;
(xi) Fare means the price paid or payable by the Passenger for the Cruise;
(xii) Firearms means pistols, rifles, shotguns, spear guns, fishing spears, bows, spears and any items of a similar nature and related ammunition;
(xiii) Group means a Group referred to in the definition of Group Passenger in clause 1(a) (xv);
(xiv) Group Cruise means a Cruise provided to a Group;
(xv) Group Passenger means a Passenger who undertakes the Cruise or any part of the Cruise as a member of a group of other passengers (Group) and where one Ticket is issued with respect to the Group;
(xvi) Itinerary means the itinerary selected by the Passenger at the time the Passenger pays the Fare and where applicable includes a Custom Itinerary;
(xvii) Passenger means any person who undertakes the Cruise or any part of the Cruise;
(xviii) Prohibited Goods means:
(A) all items listed as Dangerous Goods under the International Dangerous Goods Code;
(D) flammable materials (however stored);
(E) LPG/propane cylinders;
(F) Weapons; and
(G) any item which the Carrier, in its absolute discretion, considers to be dangerous;
(xix) Recreational Activities means:
(A) stand-up paddle boarding;
(B) swimming; and
(C) hiking to a vantage point overlooking Refuge Cove (approximately 10-minute walk over steep and uneven (rocks) in terrain);
(xx) Ticket means any document (electronic or otherwise) issued by or on behalf of the Carrier that:
(A) acknowledges receipt of the Fare;
(B) confirms the Itinerary; and
(C) contains terms and condition (if any) other than these terms and conditions, that apply specifically to the Itinerary referred to in clause 1(a)(xx)(B).
(xxi) Unforeseen Event means any act, circumstance or event beyond the control of the Carrier caused or arising from but not limited to acts of God, public enemies, government restraint, riots, strikes, lockouts, labour troubles, epidemic, civil disturbances, perils of the sea, harbours, rivers or other navigable waters, fuel shortages or abrupt and unexpected increases in fuel costs, collisions, stranding, fire, lightning, storm, rough and adverse sea conditions, tidal waves, cyclones, inclement or bad weather, theft, barratry or any other crime by any person, faults or errors of navigation or management of the Vessel or any other vessel, explosions, breakage of shafts or any defect or unseaworthiness in hull, machinery or appurtenances, equipment, furnishings or supplies of the Vessel or launches or vehicles or any defect of the Carrier’s premises, fault or neglect of pilots, tugs, crew, agents or independent contractors, port closures, delays in allocation and permits to berth the Vessel at ports on arrival and seizure of the Vessel under legal process;
(xxii) Vessel means any vessel, ship or other craft used in connection with the Cruise and includes any vessel owned, chartered, hired, used, operated or managed by the Carrier;
(xxiii) Weapons means any object, instrument or device used or designed for attack or defence, including but not limited to knives and any other weapons defined in the Maritime Transport and Offshore Facilities Security Regulations 2003.
(b) In interpreting these terms and conditions, unless the subject or context requires a different interpretation:
(i) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(ii) the singular includes the plural and vice versa;
(iii) a reference to an individual or person includes a corporation, firm partnership, joint venture, association, authority, trust, state or government and vice versa;
(iv) a reference to any gender includes all genders;
(v) a reference to a condition is to a condition of these terms and conditions;
(vi) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(vii) a reference to a matter being written includes that matter being in any mode of representing or reproducing words, figures or symbols in written form; and
(viii) a reference to dollars or $ is to Australian currency.
(ix) headings are inserted for convenience only and do not affect the interpretation of this deed;
(x) a reference to the word “include” or “including” is to be interpreted without limitation.
2 The conditions of the Cruise
(a) In consideration of the Fare the Carrier will provide the Cruise on terms of the Contract of Carriage.
(b) The Carrier may, at its discretion and without being required to give any reason or notice, provide the Cruise or any part of the Cruise through a subcontractor or agent.
(c) The Carrier is not a common carrier and may, at its discretion and without being required to give any reason or notice, refuse to provide the Cruise or any part of the Cruise to any person.
(d) The Carrier may refuse to provide the Cruise or any part of the Cruise to the Passenger, if the Carrier, in its absolute discretion, believes the Passenger presents an unacceptable risk to themselves, other Passengers, Crew or the Vessel, including if the Passenger:
(i) is suffering from any disease or affliction and is unfit to take the Cruise or any part of the Cruise or is likely to endanger the general health or safety of other Passengers, Crew or the Vessel; or
(ii) is or is likely to prove undesirable to the Crew or to the authorities at any port of destination by reason of alcohol, drugs or otherwise; or
(iii) is likely to conduct himself or herself in such a manner as to cause annoyance or injury to other persons on the Vessel, the Passenger may be restrained or confined by the Crew without notice and without liability to the Carrier for any consequential damage, loss, expense, loss of time or inconvenience and the Carrier will not be required to repay any portion of the Fare paid by the Passenger; or
(iv) is a child under the age of 14 (unless accompanied by a Passenger who is an adult).
(e) The Carrier may change or otherwise vary the Itinerary for an Unforeseen Event.
(f) The Carrier will not be responsible for any expenses resulting from the Passenger being precluded from undertaking or completing the Cruise under any of the provision of this condition 2.
(g) If a Ticket is issued to a Group Passenger, that Group Passenger is deemed to have entered into the Contract of Carriage as agent for and on behalf of all the other Group Passengers in the relevant Group. The other Group Passengers in the relevant Group, by accepting the Cruise or any part of the Cruise, confirm that the Group Passenger to whom the Ticket is issued authorised to act as their agent in relation to the Contract of Carriage. The Group Passenger to whom the Ticket is issued is deemed to have warranted to the Carrier he or she has authority to contract on behalf of all of the other Group Passengers in the relevant Group.
(h) The Passenger must at all times follow and carry out all lawful directions of the Crew in relation to any matter including the Passenger’s personal safety, or the safety of the Crew, other Passengers or the Vessel.
(i) The Passenger must be seated when requested to do so by the Crew, for any reason.
(j) The Passenger must, at all times, take all reasonable precautions for the Passenger’s own safety and the safety of any person in the Passenger’s care, including Child Passengers, including by:
(i) properly using hand and guard rails at all times;
(ii) restraining and properly supervising Child Passengers and ensuring that Child Passengers are, at all times, accompanied by the Passenger;
(iii) being duly attentive to any safety briefing given by the Crew; and
(iv) securing and not leaving any luggage or personal effects unattended.
(k) Without limiting anything contained in this condition 3, the Passenger must take all reasonable precautions for the Passenger’s own safety and the safety of any person in their care including Child Passengers in conditions of inclement, rough or heavy weather or as otherwise directed by the Crew.
(l) The Passenger must not take onto the Vessel or otherwise have in the Passenger’s possession or person any Prohibited Goods. The Carrier may seize any Prohibited Goods from the Passenger and, at the Carrier’s absolute discretion, either destroy seized Prohibited Goods or securely store them until the conclusion of the Cruise. The Passenger indemnifies the Carrier against any costs associated with either the destruction or the storage of seized Prohibited Goods.
(m) Neither the Carrier nor the Crew will be liable for any loss or damage (including personal injury) suffered by the Passenger, as a result of breach of the Passenger’s safety obligations under this condition 2.
(a) If the Cruise is cancelled by the Carrier, the Passenger may elect to:
(i) receive a refund of the Fare; or
(ii) accept another Cruise as is offered by the Carrier at its discretion.
(b) The Carrier may cancel the Cruise or any part of the Cruise for an Unforeseen Event.
(c) The Carrier may, without notice, change the Itinerary or the Recreational Activities for an Unforeseen Event.
(d) If the Passenger cancels the Cruise:
(i) less than 24 hours before the Departure Time, the Passenger will not be entitled to any refund of the Fare;
(ii) more than 24 hours but less than 48 hours before the Departure Time, the Passenger will be entitled to a refund of 50% of the Fare.
(iii) more than 48 hours before the Departure Time, the Passenger will be entitled to a refund of 100% of the Fare.
(e) If a Group Passenger cancels the Group Cruise less than 5 days before the Departure Time, the Group Passengers will not be entitled to any refund of the Fare.
4 Recreational Activities
(a) The Carrier is not liable to the Passenger for any injuries or other loss or damage which occur either directly or indirectly as a consequence of the Passenger participating in any Recreational Activities.
(b) The Passenger acknowledges and agrees that:
(i) the Passenger has a full understating of all the Recreational Activities;
(ii) the Recreational Activities involve a significant degree of physical exertion or physical risk; and are undertaken for the purposes of recreation, enjoyment or leisure;
(iii) the Passenger assumes all risks associated with the Recreational Activities and fully releases and discharges the Carrier from any and all claims, demands, damages, causes of action, present or future, resulting from or arising out of the Passenger’s participation in the Recreational Activities; and
(iv) there may be insufficient equipment, used for Recreational Activities, for all Passengers and Passengers will be required to share the available equipment.
(c) The Passenger acknowledges and agrees that:
(i) the Crew may prior to, during and after the Cruise, take photographic and video graphic images of the Passenger (including images of the Passengers participating in the Recreational Activities (Images);
(ii) the Passenger irrevocably consents to the Crew taking the Images;
(iii) the Carrier owns the copyright and all other intellectual property and rights attached to or arising from the Images (IP Rights);
(iv) the Passenger will make no claim in respect to the IP Rights; and
(v) the Carrier may, at its absolute discretion and without any restrictions whatsoever, sell, license or otherwise deal with the Images, and the Passenger releases the Carrier in relation to any loss, damage suffered by the Passenger or any claim or action to which the Passenger may be subject, as a result, either directly or indirectly, of the Carrier’s sale or any other dealings with the Images.
5 Passenger comfort and health
(a) The Passenger assures and undertakes to the Carrier that the Passenger:
(i) is in good health and well able to undertake the Cruise and the Recreational Activities;
(ii) accepts the risk that they may suffer from sea sickness; and
(iii) has disclosed any physical or mental disability requiring special attention (including the use of a wheelchair) or treatment, at the time of paying the Fare;
(b) The Carrier may require the Passenger to provide a medical certificate certifying fitness for travel if the Passenger has had surgery less than 12 months prior to the Departure Time.
(c) Without limiting the operation of condition 3, the Carrier may, in its absolute discretion:
(i) refuse to provide the Cruise or any part of the Cruise to any Passenger who requires care and attention (including facilities and equipment) which the Carrier cannot adequately provide; and
(ii) refuse to provide any of the Recreational Activities to any Passenger who has a past or present medical condition that may present risks if the Passenger participates in the Recreational Activities.
(d) Any charges incurred by Passengers for medical reasons including but not limited to physicians, surgeons, hospitals, off Vessel accommodation, medication, diagnostic facilities, air ambulance evacuation or ground ambulance shall be the sole responsibility of the Passenger.
(e) For the safety and comfort of passengers smoking is not permitted in the Vessel;
(f) The Passengers agree to indemnify the carrier from and against all claims, costs, charges, fines or penalties arising as a result of any claim made against the carrier in this respect.
6 Limitation of liability
(a) Subject to the ACL, but otherwise to the full extent permitted by law:
(i) any term, condition or warranty that may otherwise be implied by law is excluded; and
(ii) the Carrier is not liable for any loss, damage, delay or detention of the Passenger or the Passenger’s property, from any cause, including, contract, tort, negligence, breach of statutory duty or otherwise of the Carrier, the Crew, its servants, employees or agents.
(b) Subject to the Act, the Carrier is not liable for Excluded Events.
(a) All communications given or made to the Carrier must be by email to email@example.com. Proof of receipt is upon receipt by the Carrier.
(b) All communications given or made to the Passenger must be either by email to the email address stated on the Ticket or otherwise provided by the Passenger to the Carrier or by telephone to the number stated on the Ticket or otherwise provided by the Passenger to the Carrier. Proof of receipt is, in relation to:
(i) an email communication, upon receipt by the Passenger; and
(ii) a telephone communication, upon oral communication with the Passenger or by leaving a recorded message for the Passenger.
7.2 Whole agreement
The Contract of Carriage contains the whole of the agreement between the parties and no understanding, arrangement or provision not expressly set forth in this agreement is binding upon the parties.
No variation, modification or alteration of any of the terms of the Contract of Carriage is effective unless in writing and signed by each of the parties.
The failure of either party at any time to enforce any of the terms or provisions of the Contract of Carriage or to exercise any right under the Contract of Carriage does not constitute a waiver of any such right or affect the party’s privilege to enforce that right.
If any provision of the Contract of Carriage is deemed to be or is adjudicated to be unlawful or unenforceable, such provision is to be severed from the Contract of Carriage and all other remaining provisions remain in force.
7.6 Proper law
This agreement shall be governed by and construed in accordance with the law of the State of Victoria. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to oust the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.