Terms of service

Tour Terms and Conditions

Basis of Agreement

SMITH, VICKI SUZANNE trading as W.I.N.E. Adventure Group ABN 67 840 064 955 (W.I.N.E. Adventure Group, we, us, or, our) carries on the business of providing tours and adventure experiences (Tours). W.I.N.E. Adventure Group has agreed to provide the Tour to you or the company that you represent (the Client), and the Client has agreed to procure the Tour from W.I.N.E. Adventure Group in accordance with the terms and conditions on the following pages (which form this “agreement”).

The Client will be taken to have accepted these terms and conditions if they click the tick box to accept this agreement, or if through other means the Client orders, accepts or pays for the Tour provided by W.I.N.E. Adventure Group after receiving or becoming aware of this agreement.

The Client warrants that they have read and accept W.I.N.E. Adventure Group’s Waiver Agreement provided to them with this agreement.

DISCLAIMER

Participating in the tours and adventure experiences offered by W.I.N.E. Adventure Group is potentially dangerous and may expose you to risks, including accidents, muscle and tendon strains or injuries from some of the experiences provided by W.I.N.E. Adventure Group. Some activities, such as hiking and mountain biking, may lead to serious injury, or even death. W.I.N.E Adventure Group uses its best endeavours to protect you in these activities, but there remains a possibility of an accident causing injury, illness, disability, death or property damage. You participate in the experiences at your own risk and acknowledge that you have read clauses 5.5, 10 and 11, which describe your rights under Australian Consumer Laws, and how W.I.N.E. Adventure Group limits its liability to you.

Terms and Conditions

HOW TO READ THIS AGREEMENT
- Capitalised words and phrases used in this agreement have the meaning given:
  - by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
  - in the definitions in clause 17 of this agreement.
- BOOKING AND PERFORMANCE OF THE TOUR
  - BOOKING
    - This agreement will apply to all the Client’s dealings with W.I.N.E Adventure Group, including being incorporated in all agreements, quotations, orders and reservation requests under which W.I.N.E Adventure Group is to provide Tours to the Client, including via the Website, email correspondence or through interaction on a web platform such as Facebook (each a Booking Form) together with any additional terms included in such Booking Form (provided such additional terms are recorded in writing).
    - In the event of any inconsistency between this agreement and any Booking Form, these Terms will prevail to the extent of such inconsistency.
    - In submitting a Booking Form, the Client represents and warrants that:
      - the Client has the legal capacity and is of sufficient age to enter into a binding contract with us;
      - if the Client is making a booking on behalf of another individual, company or organisation the Client warrants that they have the necessary authority from that individual, company or organisation to do so; and
      - the Client is authorised to use any debit or credit card the Client provides with their Booking Form.
    - This agreement and the Booking Form are not agreed between the Client and W.I.N.E Adventure Group until W.I.N.E Adventure Group have approved the payment of the amount payable up front (as specified in the Booking Form) and the Client receives an email from W.I.N.E Adventure Group’s Payment Provider or W.I.N.E Adventure Group confirming that the Client’s payment has been received (Confirmation Email).
    - Once W.I.N.E Adventure Group sends a Confirmation Email, this agreement, together with the Booking Form, will become legally binding on both parties.
  - TOUR PERFORMANCE AND DATE
    - In exchange for the Fees set out in the Booking Form, W.I.N.E. Adventure Group will provide the Tour to the Client on the date and time as stated in the Booking Form that has been agreed on by the parties (Tour Date).
  - THIRD PARTY TERMS AND CONDITIONS
    - The Client acknowledges and agrees that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to any part of the Tour.
    - I.N.E. Adventure Group will endeavour to notify the Client of Third Party Terms that apply to the Tour, in which case:
      - the Client must immediately notify W.I.N.E. Adventure Group if they do not agree to the Third Party Terms; and
      - if W.I.N.E. Adventure Group does not receive a notice in accordance with clause 2.3(b)(i), the Client will be taken to have accepted those Third Party Terms, and W.I.N.E. Adventure Group will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
    - The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect W.I.N.E. Adventure Group’s ability to provide the Tour.
  - CLIENT OBLIGATIONS
    - PROVIDE INFORMATION
      - The Client must provide W.I.N.E. Adventure Group with all documentation, information and assistance reasonably required by W.I.N.E. Adventure Group to perform the Tour.
    - CLIENT CONDUCT
      - The Client agrees that during the Tour, they will:
        
        behave respectfully and with consideration to all other people on the Tour;
        
        follow the reasonable instructions of W.I.N.E. Adventure Group and its Personnel; and
        
        not take any actions that may put themselves or any other person on the Tour in any kind of danger.
      - INSURANCE
        
        The Client acknowledges that travel insurance is not included in the trip price and must be acquired separately.
        
        It is solely the Client’s responsibility to obtain any insurance that will cover their travels and participation in the Tour.
        
        I.N.E. Adventure Group strongly recommends that tour cover extends to cancellation, curtailment, personal liability and loss of luggage and personal effects.
      - FEES AND PAYMENT
        
        FEES
        
        The Client must pay the Fees in the amounts set out in the Booking Form immediately upon submitting the Booking Form.
        
        Subject to clause 13, to the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
        
        INVOICES
        
        I.N.E. Adventure Group will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.
        
        SUSPENSION OF TOUR
        
        I.N.E. Adventure Group reserves the right to suspend all or part of the Tour indefinitely where the Client fails to pay the Fees in accordance with clause 4.1.
        
        EXPENSES
        
        Any third party costs incurred by W.I.N.E. Adventure Group in the course of performing the Tour may be billed to the Client, unless specifically otherwise provided for in the Tour’s description on the Website and the Booking Form.
        
        GST
        
        Unless otherwise indicated, amounts stated on the Website do not include GST. In relation to any GST payable for a taxable supply by W.I.N.E. Adventure Group, the Client must pay the GST subject to W.I.N.E. Adventure Group providing a tax invoice.
        
        CARD SURCHARGES
        
        W.I.N.E. Adventure Group reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
        
        PRICING
        
        The price of a Tour is that stated in the Booking Form at the time of the Client’s booking.
        
        The Client acknowledges and agrees that:
        
        the prices are set by W.I.N.E. Adventure Group and subject to availability, and changes based on factors such as currency fluctuations, fuel and accommodation and venue price variations;
        
        W.I.N.E. Adventure Group may vary or withdraw a price at any time without prior notice to the Client before agreeing to a Booking Form;
        
        prices quoted are based on the information which the Client submits to W.I.N.E. Adventure Group, and W.I.N.E. Adventure Group may vary the prices, if that information is incorrect; and
        
        the price W.I.N.E. Adventure Group quotes to the Client is only guaranteed once the Client pays for a booking in full and W.I.N.E. Adventure Group confirms the Client’s booking and the price in writing.
        
        In the event that W.I.N.E. Adventure Group discover an error or inaccuracy in the price at which the Client’s Tour was purchased, W.I.N.E. Adventure Group will attempt to contact the Client and inform them of this as soon as possible. The Client will then have the option of purchasing the Tour at the correct price or cancelling the Tour. If the Client chooses to cancel the Tour and payment has already been debited, the full amount will be credited back to the Client’s original method of payment.
        
        TOUR ACTIVITIES
        
        SAFETY

The Client acknowledges and agrees that the nature of the Tours may expose the Client to environmental hazards, including but not limited to uneven and steep surfaces and wet weather as well as risks inherent in dangerous physical activity and being far away from emergency services. While W.I.N.E. Adventure Group endeavour to ensure the Client’s safety while on a Tour, such environmental hazards are beyond W.I.N.E. Adventure Group’s reasonable control. The Client accepts responsibility for avoiding environmental hazards and minimising harm to themselves and other Tour participants while on a Tour.

FITNESS TO PARTICIPATE
- By accepting this agreement, the Client acknowledges and warrants that they:
  - understand the risks and requirements of the activities that they will participate in as part of the Tour;
  - possess the necessary fitness to participate in the Tour and all activities that are part of the Tour; and
  - are physically able to participate in the Tour and all activities that are part of the Tour.
- WI.N.E. Adventure Group may, at their discretion, refuse to allow the Client to participate in the Tour if W.I.N.E. Adventure Group does not believe that the Client is fit to participate in the Tour.
- If W.I.N.E. Adventure Group refuses the Client’s participation in the Tour due to clause 5.2(b), the Client will be provided a full refund of the Fees.
INSTRUCTIONS

The Client agrees to follow any reasonable instruction given by W.I.N.E. Adventure Group and its Personnel while on the Tour. The Client acknowledges that any failure to follow instructions may result in harm, injury or death, and that W.I.N.E. Adventure Group will not be liable for any such failure of the Client to follow instructions.

POSSESSIONS

The Client acknowledges and agrees that the nature of the Tours may expose the Client’s possessions to risk of being damaged, lost or stolen. While W.I.N.E. Adventure Group will endeavour the ensure that the Client’s possessions are safe from harm and are not accessible by other parties, the Client accepts that this is beyond W.I.N.E. Adventure Group’s reasonable control. The Client accepts full responsibility of keeping their possessions safe and secure at all times while on a Tour and the risk of such possession being lost, damaged or stolen.

RISK
- The Client assumes all risks and liability for injuries to or deaths of persons or damage to property arising in connection with the Client’s participation in the Tour.
EXCLUSIONS
- The Client acknowledges and agrees that, unless otherwise agreed, services included in the Tour do not include air, land or water travel costs or procurement of visas to or from any locations that the Tour’s location. Unless otherwise agreed in writing, it is the Client’s responsibility to arrange and pay for these if necessary. W.I.N.E. Adventure Group will not be held responsible for any delays, cancellations or costs associated with travel or visas.
CONFIDENTIALITY & PRIVACY
- PRIVACY
  - The parties must comply with:
    - if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
    - I.N.E. Adventure Group’s privacy policy as in force from time to time.
  - I.N.E. Adventure Group will keep the Client informed of any changes to its privacy policy during the Term.
- CONFIDENTIALITY
  - For the purposes of this clause 2, ‘Confidential Information’ means information of or provided by a party to the other party under or in connection with this agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
  - Except as contemplated by this agreement or otherwise in written agreement, the Client must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by W.I.N.E. Adventure Group without its prior written consent.
  - This clause does not apply to:
    - information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
    - information required to be disclosed by any law; or
    - information disclosed by W.I.N.E. Adventure Group to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Tours or its obligations under this agreement.
  - PHOTOGRAPHS OF PARTICIPANTS
    - The Client acknowledges and agrees that W.I.N.E. Adventure Group may take photographs and video footage of the Client during the Tour and publish such photographs on its social media accounts and/or Website for the purpose of marketing and professional advancement.
  - SUBCONTRACTING
    - I.N.E. Adventure Group may subcontract any aspect of providing the Tour and the Client hereby consents to such subcontracting.
  - WARRANTIES
    - To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
    - Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
  - WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012
    - 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 is required to ensure that the recreational services it supplies 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, the supplier is entitled to ask you to agree that these statutory guarantees 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 2012if 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 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 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
  - LIABILITY
    - (Liability) To the maximum extent permitted under applicable law, and without limiting any of the Member’s rights under the Competition and Consumer Act 2010 (Cth) W.I.N.E. Adventure Group’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement is limited, insofar as it concerns other liability, to the total money paid to W.I.N.E. Adventure Group under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
    - (Indemnity) The Client agrees at all times to indemnify and hold harmless W.I.N.E. Adventure Group and its officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’, agents’ or contractors’:
      - breach of any term of this agreement; or
      - negligent, fraudulent or criminal act or omission.
    - (Consequential loss) W.I.N.E. Adventure Group will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by W.I.N.E. Adventure Group, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
  - DISPUTE RESOLUTION
    - A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause 12.
    - A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause 12.
    - Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
  - - - CANCELLATION AND TERMINATION
        
        CANCELLATION BY W.I.N.E. Adventure Group
        
        W.I.N.E. Adventure Group may terminate this agreement at any time by providing 72 hours’ written notice to the Client.
        
        CANCELLATION BY THE CLIENT
        
        The Client may terminate this agreement at any time by providing written notice to W.I.N.E. Adventure Group.
        
        If the notice under clause 2(a) is organised solely by W.IN.E. Adventure Group :
        
        72 hours or more prior to the Tour Date, W.I.N.E. Adventure Group will provide the Client with a full refund of any Fees paid;
        
        Less than 72 hours prior to the Tour Date, W.I.N.E. Adventure Group will not provide the Client with a Credit for a future Adventure.
        
        After or on the Tour Date, the Client will not be entitled to any refund, unless the Tour is not of an acceptable quality in accordance with the Australian Consumer Law.
        
        If the notice under clause 13.2(a) is organised by W.I.N.E. Adventure Group and involves a Third Party company to book Tour Event/Adventure:
        
        14 days or more prior to the Tour Date, W.I.N.E. Adventure Group will provide the Client with a full refund of any Fees paid;
        
        Less than 14 days prior to the Tour Date, W.I.N.E. Adventure Group will not provide the Client with any refund of the Fees paid.
        
        After or on the Tour Date or Event, the Client will not be entitled to any refund, unless the Tour is not of an acceptable quality in accordance with the Australian Consumer Law.
      - ACCRUED RIGHTS AND LIABILITIES
        
        The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
      - CONSEQUENCES OF EXPIRATION OR TERMINATION
        
        Upon expiration or termination of this agreement:
        
        Subject to clause 13.2, W.I.N.E. Adventure Group will refund any amounts paid by the Client for the Tour if it is not provided as at the date of termination;
        
        the Client must pay all amounts owed for any Tour already provided or as set out in any invoice issued to the Client by W.I.N.E. Adventure Group as at the date of termination; and
        
        each party must return all property of the other party to that other party.
        
        SURVIVAL
        
        Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
        
        FORCE MAJEURE
        
        If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
        
        reasonable details of the Force Majeure Event; and
        
        so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
        
        Subject to compliance with clause 14(a), the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
        
        The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
        
        For the purposes of this agreement, a ‘Force Majeure Event’ means any:
        
        act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
        
        strikes or other industrial action outside of the control of the Affected Party;
        
        war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
        
        any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
        
        NOTICES
        
        A notice or other communication to a party under this agreement must be:
        
        in writing and in English; and
        
        delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
        
        Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
        
        24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; or
        
        when replied to by the other party,

whichever is earlier.

GENERAL
- GOVERNING LAW AND JURISDICTION
  - This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
- BUSINESS DAYS
  - If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
- AMENDMENTS
  - This agreement may only be amended in accordance with a written agreement between the parties.
- WAIVER
  - No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
- SEVERANCE
  - Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
- JOINT AND SEVERAL LIABILITY
  - An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
- ASSIGNMENT
  - A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
- COUNTERPARTS
  - This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
- COSTS
  - Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
- ENTIRE AGREEMENT
  - This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
- INTERPRETATION
  - (singular and plural) words in the singular includes the plural (and vice versa);
  - (currency) a reference to $; or “dollar” is to Australian currency;
  - (gender) words indicating a gender includes the corresponding words of any other gender;
  - (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  - (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
  - (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
  - (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
  - (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
  - (headings) headings and words in bold type are for convenience only and do not affect interpretation;
  - (includes) the word “includes” and similar words in any form is not a word of limitation; and
  - (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
- DEFINITIONS
  - In this agreement, the following words and phrases have the following meaning:

Term	Meaning
Booking Form	Has the meaning given in clause 2.1.
Business Day	A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Victoria, Australia.
Confidential Information	Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
Fees	The fees set out on the Website.
Laws	Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Tour is performed or received and includes any industry codes of conduct.
Personnel	Employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.
Tour	Has the meaning given on the first page of this agreement.
Tour Date	Has the meaning given in clause 2.2.
Website	Means the W.I.N.E. Adventure Group website located at www.wineadventuregroup.com.au

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