Tour Terms and Conditions
These terms and conditions (“Terms and Conditions”) apply to any tour provided by Desert Gateway Dirt Bike Tours Pty Ltd ABN 22 655 504 920 (“Desert Gateway”) to you (each a “Tour”), and govern all services provided by Desert Gateway in the provision of the Tour including the booking of tours, and the holding of such tours as well as your attendance at such tours (together the “Services”). Please carefully read these Terms and Conditions before booking a Tour or otherwise attending a Tour. By indicating your acceptance of these Terms and Conditions (such as by ticking a box at the time of booking) or otherwise booking a Tour from Desert Gateway or attending a Tour after being given notice of these Terms and Conditions (subject to the below), you agree to be bound by these Terms and Conditions. You will not be booked on a Tour unless you agree to be bound by these Terms and Conditions. In the event of any inconsistency between these Terms and Conditions and any terms contained on the booking form of the Tour, the terms contained in the booking form will prevail to the extent of such inconsistency. These Terms and Conditions may be updated by Desert Gateway from time to time, and the updated Terms and Conditions will apply from the date they are published on the Website (as defined below). Prior to booking a Tour you should revisit these Terms and Conditions.
Legal
These Terms and Conditions will apply to any tour that you provide. By booking a Tour or otherwise attending a Tour the user agrees to be bound by these terms. Although we have stated these terms automatically apply to anyone who books a Tour, we recommend you still have attendees check a box to confirm that they agree to these terms at the time of placing their booking order. We have included that where there is any inconsistency between these terms and any terms contained on a booking form for a Tour, the terms on the booking form will prevail. This allows you to include special conditions that may apply to specific Tours.
Definitions
Booking & Registrations
Fees
Attendee Conditions
Obligations
Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter:
- “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
- “Applicable Laws” means any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you are located or which in any way govern or affect your participation in a Tour and/or our Services;
- “Consent, Waiver and Release Form” means the consent waiver and release form that we provide to you;
- “Force Majeure Event” means events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i) strikes, lockouts or other industrial action;
(ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19 and variants), health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks); and
(vi) the acts, decrees, legislation, regulations or restrictions of any government agency (including a health direction). “Intellectual Property” means all intellectual property rights, including without limitation inventions, patents, copyright, trademarks, know-how, processes, concepts, including the Website and any other platform developed by Desert Gateway and the source code for those systems and any application or right to apply for registration of any of these rights throughout the world whether registered or unregistered and whether developed before or after the date of these Terms and Conditions;
“Loss” means any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
“our”, “us” and “we” means Desert Gateway;
“State” means Queensland; and
(i) “Website” means the website www.desertgatewaydirtbiketours.com.au and its related services, products, websites, tools and applications.
Booking & Registrations
- You may book a Tour either by using the booking form on our Website or by other methods as approved by us from time to time, in accordance with these Terms and Conditions.
- Whether you are booking on the Website or manually submitting a request, these Terms and Conditions will apply to you.
- Any Tour booking placed with us is an offer by you to book a place on the Tour for the price specified at the time you placed the order. You acknowledge that by placing your order, you are agreeing to pay for and accept the booking order to the Tour selected which will be subject to any limitations shown at the time you place your order. All bookings of Tours are subject to availability. Your order will not be confirmed until we have provided written notice of such (such as by providing a receipt), after payment of the deposit is received in cleared funds in accordance with clause 3.
- We reserve the right to accept or reject your booking order (or any part thereof) at any time and for any reason. You may not cancel your order once it is placed other than as expressly provided for in these Terms and Conditions.
- In the event that you book a Tour on behalf of a third party, you represent and warrant that you have made that third party aware of these Terms and Conditions and you acknowledge and agree that actions of that third party shall also be attributed to you for the purposes of these Terms and Conditions.
- In the event that a third party books a Tour on your behalf, by attending any Tour or using the Services you are taken to have agreed to be bound by these Terms and Conditions, regardless of whether you were provided with notice of them.
Legal
Bookings placed either through the website or manually will be subject to availability. Any booking placed will only be an offer, which you may accept or reject (this is common in commercial terms so as to reduce any risks from pricing errors or other errors in booking forms i.e. surplus bookings accidentally becoming available). Bookings will not be confirmed until you provide written notice of such, and after payment of the deposit is received. Any bookings are subject to any limitations as specified at the time that the attendee places their order.
Fees
- The fees for the Tour selected will be as specified on the booking order form at the time you book your Tour. Please note that any prices quoted are subject to change. Prices are subject to availability and can be varied without notice. Prices may change by reason of matters outside our control which may increase the cost of a particular product or service connected with the Tour. We will inform you of any price changes as soon as we are aware.
- The fees for the Tours are inclusive of all items specified on the Website at the time the Tour is booked. Unless otherwise specified, this includes food, accommodation and fuel.
- You must make payment of an upfront non-refundable deposit at the time you place your booking, which will be used by us to cover pre-bookings and costs. If we do not receive your deposit at this time, then we may in our absolute discretion terminate these Terms and Conditions. The amount of the deposit will be as set out on the Website at the time you place your booking. In the event you cancel your booking, this deposit will not be refunded (to the extent permitted by laws).
- The balance of the payment of fees is due 30 days prior to your departure date for the relevant Tour. Some service providers require payment in full at the time of booking, if this is the case, we will let you know. The due date for such payments are determined by third parties and not us.
- You must make payment of all fees via a method accepted by us as stated on the order form.
- The methods of delivery of the booking order confirmation will be through the electronic methods as specified on the Website at the same time as placing your order for the Tour.
- Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card may attract a small surcharge). You agree to pay such fees at the same time as you make payment to us, even if such fees are not explicitly disclosed on the Website or otherwise.
- If you fail to make payment when due to us, we may in our absolute discretion terminate these Terms and Conditions.
- You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
- Prices shown on the Website are in Australian Dollars (AUD) and exclude GST, unless otherwise stated.
- Prices and all other details for the Tours are subject to change without notice.
Legal
The fees will be as specified on the booking order form at the time the user places their order. Payment methods are also as specified on the website. Prices are subject to availability and can be varied without notice. Fees for Tours are inclusive of all items specified on the Website at the time the booking is placed (for example food, accommodation and fuel).
Attendee Conditions
- You must be at least 18 years of age to place a booking order and attend a Tour (you may be requested to provide photographic ID as proof of your age or identity). On entry to the Tour you must present your booking order receipt granting you admission to the Tour. All bookings are non-transferable and the resale of bookings is prohibited.
- You must on or before the departure date of a Tour, provide us with a signed copy of the Consent, Waiver and Release Form. If you fail to provide us with a copy then you will be denied entry to the Tour.
- You may be denied entry into the Tour, or removed from the Tour if you fail to follow these Terms and Conditions or where we have reasonable grounds to do so including (without limitation) where we believe that you have engaged in any illegal or disruptive activities, you cause damage to someone else or the property of someone else, you are intoxicated, under the influence of illicit substances, represent a security risk, are not complying with our reasonable directions or have acted in a manner which affects the enjoyment of the other attendees at the Tour or the public. If you are removed or denied entry from the Tour you will not be entitled to any refund and you will need to arrange your own transport back at your cost.
- You acknowledge at all times you are solely responsible and liable for your own behaviour and wellbeing.
- All unauthorised photography and/or recording or transmitting of audio or visual matter that is used for commercial purposes is expressly prohibited at the Tour. For the avoidance of doubt you may take photos and videos for non-commercial purposes such as on Instagram.
- Unfortunately, depending on the service providers of the Tour we may not be unable to guarantee disabled access to the Tour due to our limited control of adding facilities.
- You may be required to submit to a search of your person and/or possessions before entering parts of the Tour.
Legal
We have included conditions which apply to the attendee during the Tour which includes:
- We have given you the right to deny an attendee entrance or remove them where they do not follow these terms or where you have reasonable grounds to do so.
- The attendee must provide a signed copy of the Consent, Waiver and Release Form on or before the departure date.
- Prohibition of video recording for commercial purposes on Tour.
The attendee is liable for their own behaviour and wellbeing. Please review the conditions set out in this clause and ensure they reflect your intentions. If you have other conditions you wish to include here please let us know and we can include these for you.
Obligations
- Motorbike and Equipment
(a) You are required to bring your own equipment for the Tour, including a suitable motorbike, helmet and other safety devices required, sleeping bag and goggles (unless otherwise agreed with us prior). You must ensure that your motorbike is in good condition. Any breakdown and/or mechanical work needed on your motorbike during the Tour will be at your expense. In the event that you are unable to complete the Tour as a result of damage and/or loss to your motorbike, then no refund will be provided. We also provide hiring facilities for equipment. Please see clause 17.
(b) You must have and maintain during the Tour a valid motorbike licence, for operation of the motorbike which you will be riding during the Tour. You must present us with a copy of your (a) motorbike licence on the first day of the Tour. If you fail to do so, or do not have a valid motorbike licence then you will be unable to participate in the motorbike riding and no refund is applicable. If there are any changes to your licence during the Tour you must immediately notify us. - Travel and other documents
You are responsible for providing us with all information, documentation and assistance reasonable required to enable you to participate in the Tour. This includes without limitation, obtaining and having the necessary documents, passport and licence details (as required) and approving any additional booking terms. You are solely responsible for ensuring you have a valid passport, visa, and re-entry permit (as required) and any fines, penalties, payments or expenditures incurred as a result of failure to comply will be your sole responsibility. - Health requirements
(a) You must ensure that you are aware of any health requirements and recommended precautions relevant to travel. We will not be responsible for providing any information and accept no liability for any loss or damage suffered as a result of failure of being aware of health requirements.
(b) It is your obligation to ensure that you are in good health before embarking on a Tour. You are responsible for providing your own prescribed medical requirements including medicine. You must ensure that you are aware of any health requirements and recommended precautions relevant to your travel and ensure you carry all necessary vaccination documentation having regard to the destination of the Tour. We will not be responsible for expenses, loss or damage resulting in you being precluded from completing the Tour for any health reason (including failure to provide the right documents). - Travel and health insurance
We recommend that you take out appropriate travel and health insurance. You are solely responsible for ensuring that you have adequate insurance policies in place. We are not responsible for any failure by you to acquire adequate insurance. - Personal property
Please note that all baggage and personal belongings is solely at your risk. You are solely responsible for the safe keeping and security of your personal belongings. We will not be liable to you for any loss or damage to any of your personal belongings.
Legal
This clause sets out the obligations on the attendee. It includes relevantly:
- Obligations with respect to bringing a motorbike in good condition with suitable equipment (or hiring from you)
- Responsibility for providing travel documents
- Responsibility for being aware of health requiremrents
- Responsibility for ensuring they have adequate travel and health insurance in place.
Tour Arrangements
- We will build an itinerary for the Tour, and make all decisions with respect to the planning of the Tour. We reserve the right to vary or amend the itinerary at any time on giving you notice.
- Where the Tour includes travel services provided by third party operators (Operators) (such as accommodation or flights), then in such circumstances we act as an agent in providing such travel services provided by those Operators. The Services facilitate those bookings of such travel services provided by Operators, we do not provide, manage and/or control such travel services.
- When booking on a Tour that includes us arranging airline travel, all airline tickets must be issued in the name of the passport holder. An incorrect name on a booking may result in an inability to use that booking and the booking being cancelled. You must review your travel documentation carefully.
- Each booking is subject to any additional terms and conditions of any Operators. You acknowledge that you are solely responsible for reading and understanding such applicable Operator terms and conditions. We will not be liable for any loss or damage suffered by you in connection with such Operator terms and conditions. Admission to the Tour is subject to any of the Operator terms and conditions.
- The relevant Operator and not us is responsible for honouring any confirmed bookings and making available any travel services from Operators.
- You agree to comply with all reasonable instructions issued by us or by the Operator. Your legal rights in connection with the provision of travel services provided by Operators is against the relevant Operator and not us (except to the extent caused by our fault).
- If you have any special requirements for bookings, such as disability access requests, seatings requests or food allergy requests, you should inform us prior to the booking. We will use reasonable endeavours to ensure the booking includes such requests, however cannot guarantee that the relevant Operator will comply with the request.
Legal
You have the right to vary the itinerary at any time on giving notice. Bookings are subject to any additional terms provided by third party operators. Admission to a Tour is subject to such terms.
You have the right to vary the itinerary at any time on giving notice. Bookings are subject to any additional terms provided by third party operators. Admission to a Tour is subject to such terms.
Cancellation, Variations And Refunds
Intellectual Property
Photos & Filming Consent
Force Majeure
First Aid
Cancellation, Variations And Refunds
- General terms
Once a booking is placed or confirmed, Tour bookings may not be cancelled, exchanged or refunded except in accordance with these Terms and Conditions, or to the extent otherwise required by law. In the event that you are entitled to a refund, you must apply for a refund within the timeframes set out in these Terms and Conditions. For the avoidance of doubt, in the event that the Tour date is revised, the time periods and reimbursement terms set out in these Terms and Conditions apply based on the revised Tour date. You acknowledge that you have been given the opportunity to take out travel insurance that may cover cancellations. - Cancellations by attendees
If you wish to cancel your booking of a Tour, please notify us as soon as possible. Cancelling after your booking confirmation and deposit, but prior to your final payment will forfeit your deposit paid. If you cancel after final payment has been received, our refund policy is as follows:
(a) if you notify us more than 21 days prior to departure of the Tour then 75% of the total fees are refunded;
(b) if you notify us between 21 and 14 days prior to departure of the Tour then 50% of the total fees are refunded;
(c) if you notify us between 14 and 7 days prior to departure of the Tour then 25% of the total fees are refunded;
(d) if you notify us less than 7 days prior to departure of the Tour then you are not entitled to a refund.
We will only offer you a refund for cancellation if you notify us before the date for cut off as specified above. Flights booked in your name are non-refundable. Refunds are subject to these Terms and Conditions and any applicable laws. Subject to the other terms of these Terms and Conditions, non-attendance of any Tour by you for any reason does not give you the right to a refund, or an exchange. Please note that cancellations may also incur supplier fees, which can be up to 100% of the cost of the booking, regardless of whether the Tour has commenced. Supplier fees may also apply to variations. If we incur any liability for a supplier fee for any booking which you change, transfer or cancel, you agree to indemnify us for the amount of that fee (to the extent that we have not been reimbursed as set out under these Terms and Conditions). - Cancellations by Desert Gateway
(a) At any time prior to the date of the Tour, we reserve the right to cancel your ticket order and/or the Tour without cause on giving written notice. Without limitation to such rights, if we believe that there is an error in any booking order placed, such as an error in the price of the booking or if the Tour is not available, we reserve the right to cancel that booking.
(b) Other than in circumstances where we cancel under clause 10, if your booking or a Tour is cancelled:
(i) we will not be in breach of these Terms and Conditions by virtue of the cancellation; and
(ii) we will notify you and provide you with a full refund of any fees paid for such booking or Tour or offer you an exchange for an alternative Tour or credit.
(c) Where there is a pricing error, we will endeavour to contact you to give you the option to purchase the booking at the correct price. - Variations to the Tour
(a) We reserve the right, at any time, on giving you notice to vary or alter the Tour, including the destination, or departure date of the Tour, or changes to routes, length or dates of the Tour. Any itinerary is subject to change without notice and intended as a guide only. We provide no guarantee as to the exact arrival and departure times of Tours, and will not be liable for failure to make any connections (as required).
(b) Other than in circumstances where we vary the Tour under clause 10, in the case where the variation is significant (being where the date of the Tour changes or the location changes to a different location that is outside of a 100km radius of the original Tour location), you shall have the right to request a refund within 5 business days of our notification of the variation. If you fail to provide us with notice that you would like a refund within such period, you expressly accept the variation to the Tour and your ticket will automatically transfer to the new Tour.
(c) If you wish to reschedule your booking, please get in touch with us as soon as possible. Any amendments are subject to our agreement and may incur additional fees. - Limitation of liability
To the extent permitted by law, where we are required to cancel a booking order or Tour our liability to you is limited to the amount for which the booking order for the relevant Tour was purchased. We will not be liable for any other Losses incurred by you as a result of such cancellation including without limitation the costs of any travel or accommodation. You incur such expenses at your own risk. - Force Majeure (including inclement weather)
Notwithstanding any other provision of these Terms and Conditions, where a Force Majeure Event (as defined above) prevents us from providing a Tour to you, we reserve the right to change or cancel any Tour in accordance with clause 10. In the event of inclement weather we may decide to continue the Tour at our discretion.
Legal
Once confirmed, bookings are not able to be cancelled, exchanged or refunded except as set out in these terms. This includes relevantly the tiered refund approach provided to us for where the attendee cancels after final payment has been made. Where the attendee cancels after the deposit but prior to the final payment then they forfeit their deposit. We have given you the right to cancel a Tour at any time without cause on giving written notice. We have also given you the right to vary or alter a Tour at any time on giving notice. Other than in circumstances where you vary the Tour due to Force Majeure Event (such as inclement weather) then if the variation is significant (for example if the location changes), we have included that you will give the attendee a 5 business day window to request a refund. We consider this fair and reasonable. Please let us know if this reflects your intentions, or if you prefer an alternative approach.
Intellectual Property
You acknowledge and agree that:
- we (or the relevant licensor) own all rights, title and interest in and to all material associated with a Tour (including any material developed during the course of providing you with the Services and the Intellectual Property contained therein), such as the content of marketing materials, brochures and itineraries (Materials); and
- you will not copy, reproduce, alter, modify, create derivative works, make available online or electronically transmit, publish, adapt, distribute, transmit, broadcast, display, sell, license, or otherwise exploit the Materials except with our prior written permission or the relevant third party authorised to grant such permission and when doing so you must adequately acknowledge us or the relevant third party.
Legal
You and your licensors retain all rights, title and interest in all material associated with a Tour, this includes relevantly any brochures and itineraries.
Photos & Filming Consent
- You acknowledge and agree that we (or an authorised agent of ours) may take photos and/or videos of you in connection with the provision of the Services (including your participation or attendance at a Tour).
- You authorise and consent to us using any photograph or video of you taken during the provision of the Services
including relevantly any Tour, for any purpose including for promotional and marketing purposes of future events and tours. You warrant that you have the permission of all attendees who you arrange to attend the Tour to take and use such photos and videos.
Legal
The attendee authorises and consents to your use of any photograph or video taken during the Tour for your promotional and marketing purposes.
Force Majeure
Force Majeure Event
- We will not be in breach of these Terms and Conditions or liable to you for any loss incurred by you as a direct result of us failing or being prevented, hindered or delayed in the performance of our obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
- If a Force Majeure Event occurs, we reserve the right to cancel or vary the Tour, at our discretion (including for example postponing the Tour to a later date). In the event that we reschedule the Tour, we will use all reasonable efforts to meet your preferred dates, however we are unable to guarantee that.
- In the event of variation, you shall have no right to cancel your booking or obtain a refund. In the case where the variation is significant (as contemplated in clause 7.4(b)) and you do not want to attend the Tour, please contact us and in that case we may in our sole discretion (however are not required to except to the extent required by law) provide you with a refund. Please note that in certain circumstances, where it is necessary to protect our legitimate commercial interests, we may retain any fees paid and will not be required to make any refunds.
- In the event of termination, we may, in our sole discretion (however are not required to except to the extent required by law), offer you a refund. Please note that in certain circumstances, where it is necessary to protect our legitimate commercial interests, we may retain any fees paid and will not be required to make any refunds.
Legal
Where a Force Majeure Event occurs, you will not be liable to the attendee for any loss that occurs. You will have the right to cancel or vary the Tour at your discretion (including postponing the Tour to a later date). In the event of variation as a result of a Force Majeure Event, then the attendee has no right to a refund (except at your discretion). In the event of termination then you may offer a refund at your discretion.
First Aid
Our guides are trained in first aid and carry mobile telephones and a satellite locators and communicators. In addition, our support vehicle is equipped with a first aid chest. You will be briefed on conditions daily.
COVID -19
- You must provide us with notice, prior to the departure date and at any time during the Tour if you:
(a) have been directed by a government agency or a medical professional to self-isolate due to COVID-19;
(b) have any symptoms of COVID-19 including without limitation fever, respiratory symptoms (coughing, sore throat, shortness of breath, runny nose, loss of taste or loss of smell);
(c) have recently returned from overseas (within the last 14 days);
(d) have been in close contact in the last 14 days with someone who has been diagnosed with COVID-19, or has recently travelled overseas, or has undertaken a COVID-19 test;
(e) have undertaken a COVID-19 test and are awaiting results;
(f) have tested positive to COVID-19; or
(g) otherwise feel unwell. - Where you provide notice of the above, or we reasonably believe one of the above items applies, then we may cancel your booking.
Legal
The attendee must immediately inform you of any covid related matters as set out here.
Disclaimer
Exclusion And Limitation Of Liability
Indemnity
Third Party Providers
Motorbike Hire
Disclaimer
- You acknowledge and agree that your use of the Services (including relevantly your participation and attendance at a Tour) is at your own risk. We provide the Services and each Tour on an “as-is” basis and whilst every effort is made to ensure the information provided through the Services is accurate, we make no representations and give no warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of anything contained in the Services and each Tour for any purpose.
- To the maximum extent permitted by law, the Services and each Tour are provided without any warranties, representations, or conditions of any kind, whether express, implied or statutory. You acknowledge and agree that:
(a) we are not responsible for any information provided through the Services and each Tour;
(b) you are solely responsible for following or not following, or undertaking research of, or making an assessment of any information given through the Services and each Tour;
(c) you are solely responsible for your behaviour and wellbeing at the Services and each Tour; and
(d) we do not guarantee any specific results.
Legal
We have included that you will provide the Tour on an as-is basis and without any warranties.
Exclusion And Limitation Of Liability
- Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
- Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual fees paid by you to us under these Terms and Conditions for the relative Tour.
- Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
- If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired. - Without limitation to the other terms of this clause, we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
- Notwithstanding anything else in this clause, our liability will be reduced to the extent the loss or damage is caused by or contributed to by you or any members of your staff.
Legal
We have limited your liability to the extent permitted by law here. Where we are unable to exclude your liability, we have limited it to the amounts paid by the attendee under these Terms and Conditions for the relative Tour. Although we have included disclaimers and limitation of liability provisions to help reduce any risks associated with your Tours, there are certain circumstances which we cannot exclude or limit your liability through law (such as the ACL) as such you should ensure that you have adequate insurance in place to protect you.
Indemnity
- Except to the extent caused or contributed to by the negligent act or omission, wilful misconduct or breach of these Terms and Conditions by us, you indemnify us against, and hold us harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:
(a) your breach or negligent performance of these Terms and Conditions;
(b) the enforcement of these Terms and Conditions;
(c) your conduct during a Tour or participation at any Tour (including without limitation any conduct towards other persons at a Tour or any damage to other persons or their personal property);
(d) any claim made against us by a third party arising out of or in connection with the provision of the Services and each Tour, to the extent that such claim arises out of your breach, negligent performance or failure or delay in performance of these Terms and Conditions;
(e) the conduct of other persons at any Tour;
(f) your reliance on the Services and each Tour (including any information obtained from a Tour);
(g) your violation of any law (including intellectual property rights); or
(h) any negligent, fraudulent or criminal acts or omissions by you or your personnel. - You must make payments under this clause immediately on demand:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds. - Our liability under this clause is limited in accordance with clause 14.
- The indemnities in this clause 15:
(a) are continuing obligations on you, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
Legal
The attendees indemnify you and hold you harmless for those events set out here. This includes relevantly any breach by them of these terms.
Third Party Providers
To the extent permitted by law, neither we nor any of our directors or employees are liable in in contract, tort (including negligence) or otherwise for any injury, damage, loss (including consequential loss), delay, additional expense or inconvenience caused directly or indirectly by the acts, omissions or default, whether negligent or otherwise, of third party Operators over whom we have no direct control.
Motorbike Hire
- We offer the ability for you hire out a motorbike from us, subject to these Terms and Conditions (Motorbike). If you are hiring a Motorbike from us then the terms of this clause will apply to you.
- In addition to the amount payable for the Tour, you must pay us a security deposit of $1000 prior to the departure date of the Tour. The security deposit is to cover any damage to the Motorbike (as set out below). Without limitation to any other rights, we may in our discretion have resource to the security deposit on account of any amounts payable by you under this agreement for any damage, loss or theft to the Motorbike (which is deemed your responsibility under these Terms and Conditions).
- We will make the Motorbike available for pickup at the collection point as advised by us. At the completion of the Tour, you must return the Motorbike to us in the same condition as it was at the date of collection. For the purposes of this clause ‘same condition’ means the same state (excluding wear and tear) and complete with all equipment and in the same state of cleanliness and repair as at the collection date.
- You must ensure that the Motorbike is only used:
(a) for a permitted use and for the purpose for which it is intended for;
(b) in a proper and skilful manner (by you only);
(c) in accordance with any instructions provided by us; and
(d) in accordance with all applicable laws, rules and regulations. - You must not, and must not allow any third party to:
(a) use the Motorbike for any dangerous or illegal purpose, contest or performance test;
(b) allow any other person to use it, that has not been authorised by us;
(c) use, or allow the Motorbike to be used while under the influence of alcohol or drugs;
(d) make any alterations to the Motorbike;
(e) affix or install any accessories. - You must:
(a) maintain the Motorbike in accordance with your obligations under these Terms and Conditions;
(b) hold and maintain a valid motorbike licence as required to use the Motorbike;
(c) immediately report any changes to your driving licence;
(d) promptly report any incident involving loss, theft or damage to the Motorbike, or any accident;
(e) keep the Motorbike secure at all times. - You acknowledge that you will be responsible for all statutory expenses including tolls and traffic infringement and other charges, penalties and fines relating to your use of the Motorbike.
- You must maintain the Motorbike in good condition and mechanical order.
- You will be fully responsible for any loss or damage to the Motorbike during the term of your hire, or otherwise when the Motorbike is in your possession.
- Within 30 days of the date of the completion of the Tour, we will refund the balance of the security deposit not otherwise applied by us in accordance with these Terms and Conditions, to your nominated bank account.
Legal
This clause governs the hire of motorbikes to attendees. The attendee will be required to pay a security deposit upfront prior to departure which may be used by you to cover any damage to the Motorbike. The attendee will be responsible for any damage that occurs to the motorbike during their hire period.
Food And Drinks
- You must provide us with information of any allergies that you have. No information we provide on allergies or nutritional information should be considered a guarantee, but simply a good faith effort to serve our customers. We will not be liable for any adverse reactions to food consumed or other items an individual may come into contact with during the Services.
- Where food or drink items is provided:
(a) actual nutrient values, information and serving sizes labelled on the items are provided by a third party unrelated to us and we are not liable for such;
(b) any information provided by a third party is approximate and intended to be used as a guide only;
(c) although we take reasonable attempts to identify the ingredients that may cause allergic reactions or adverse effects:
(i) allergen information provided is based on information provided by third party suppliers and as such there is a risk that their information is incorrect or they change their formulation without notice; and
(ii) no allergen or nutritional information provided by a third party should ever be considered a guarantee, and we will not be liable for any Loss arising in connection with adverse reactions to food or drink consumed or other items you may come into contact with in connection with the Services;
(d) given the nature of ingredients we do not guarantee that any food or drink is safe to consume, and you consume such at your own risk. - Whilst we will use reasonable efforts to accommodate you, you should bring your own food or medication.
Legal As allergen or nutritional information is provided by third party suppliers we have included that such information is not a guarantee, and that you do not guarantee that any food or drink is safe to consume.
General Provisions
Interpretation
General Provisions
- Variation
An amendment or variation of any term of these Terms and Conditions must be in writing and signed by each party. - No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 19.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel. - Assignment, Novation and Other Dealings
(a) Any rights of Desert Gateway that arise out of or under these Terms and Conditions are assignable and capable of novation by that party in its discretion and without notice or the prior written consent of the other parties.
(b) Any rights of any other party that arise out of or under these Terms and Conditions are not assignable or capable of novation by the party without the prior written consent of the other parties. - Severability
If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not. - No Merger
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force. - Survival
Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry. - Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions. - Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money. - Relationship of the Parties
Nothing in these Terms and Conditions gives a party authority to bind any other party in any way. Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party. - Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions. - Entire Agreement
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter. - No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions. - Governing Law and Jurisdiction
These Terms and Conditions are governed by the law in force in the State. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(a) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 0 on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 0 do not have jurisdiction.
Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter:
- Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
- References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
- References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
- Words denoting the singular include the plural and words denoting the plural include the singular. Words denoting any gender include all genders.
- The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
- A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
- A reference to a law includes legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
- Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally and is for the benefit of them jointly and each of them severally.
- No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
- A reference to time or day is a reference to time in the capital city of the State.
- A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless otherwise specified.
- Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
- Where these Terms and Conditions are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
- A reference to writing or written includes email.