Executive Brains- Liability Waiver
Last updated: August 2018
By ticking this box you (“you” or “your”) confirm that you have read the terms of this Waiver of Liability and Indemnity Agreement (“Waiver”) and understand and agree to them. Ticking this box is the same as signing a contract or agreement.
WAIVER OF LIABILITY AND INDEMNITY AGREEMENT
PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE SIGNING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
NOTE TO MINORS: IF YOU ARE UNDER THE AGE OF 18 YOUR PARENT OR GUARDIAN MUST REVIEW AND AGREE TO THE TERMS BELOW IN ORDER FOR YOU TO PARTICIPATE IN AN EXECUTIVE BRAINS PROGRAM.
NOTE TO PARENTS/GUARDIANS OF MINORS: YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREED TO THE TERMS BELOW (SUCH TERMS BEING INTERPRETED AS IF THEY APPLIED TO BOTH YOU AND YOUR MINOR CHILD/WARD) AND HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR MINOR CHILD/WARD.
Released Parties include: Sheryl Batchelor trading as Executive Brains (ABN 99 036 553 744) (hereafter “Executive Brains”) and Executive Brains’ respective employees, agents, representatives, contractors and licensees.
Releasing Parties include: you as well as your spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on your behalf.
Executive Brains Programs are dependent on participant numbers and the availability of a consultant. Executive Brains reserves the right to cancel a program at any time and will refund the full amount of any monies paid by you.
If you are unable to make a scheduled appointment with Executive Brains we request the common curtesy of a phone call or message. We charge a cancellation fee equal to the cost of the scheduled appointment for failure to cancel an appointment with at least 24 hours notice.
Variation of Executive Brains Programs
Executive Brains reserves the right at any time to cancel or vary any Executive Brains program. To the extent permissible at law, Executive Brains will not be liable to you or to any third party for any cancellation or variance of the Service.
Other Conditions of Use
The Releasing Parties agree that they are solely responsible for their interaction with other participants during the Executive Brains Programs. The Releasing Parties agree that Executive Brains is not responsible or liable for your conduct. Executive Brains reserves the right, but has no obligation, to monitor or become involved in disputes between you and other third parties using and engaging the Service.
The Releasing Parties agree that they:
will listen and follow any lawful instructions by a consultant (i.e. Released Parties), including safety or emergency instructions; and
are solely responsible for their personal health and safety and acknowledge that they are physically and mentally capable of participating in and completing the Executive Brains program, as described on the Executive Brains Website and the Executive Brains Terms of Service .
Executive Brains’ Responsibilities
The Released Parties agree that they will:
Provide quality brain health and training programs; and
provide adequate facilities and safety procedures.
Nature of Executive Brains Service
The Releasing Party acknowledges that they understand that the programs offered by Executive Brains are solely educational in nature. The Releasing Parties are not medical professionals and are not providing medical advice or medical or healthcare services.
While Executive Brains endeavours to ensure that the content of their Executive Brains Programs are accurate, adequate and complete, we do not represent or warrant its accuracy, adequacy or completeness.
The Releasing Party acknowledges and agrees that no warranties or representations have been made regarding the results that the Releasing Party will achieve from an Executive Brains program. The Releasing Party understands that results are individual and will vary.
Warning of Assumption of Inherent Risks
The Releasing Parties acknowledge that Executive Brains Programs carry with them inherent risks of injury (physical and / or mental). Inherent risks are risks that cannot be eliminated completely regardless of the care and precautions taken by Executive Brains.
The Releasing Parties understand and acknowledge that the inherent risks include, but are not limited to:
falls, tripping, contact or collision with persons or objects;
the actions and behaviour of other third parties attending the Executive Brains Programs; and
any other risk that is out of the control Executive Brains or unreasonable to expect Executive Brains to counteract.
The Releasing Parties acknowledge that they understand that risks involved in Executive Brains’ programs could lead to injuries, including risks not specifically named, and that the Releasing Parties are participating in Executive Brains’ program entirely at their own risk.
Waiver of Liability for Ordinary Negligence
To the extent permitted by law, the Releasing Parties agree that under this agreement Executive Brains and the other Released Parties shall be excluded from liability for ordinary negligence in the conduct of the Executive Brains and the application of any of the provisions of Subdivision B, Division 1, Part 3-2 of the Australian Consumer Law and further, the Released Parties shall be excluded from liability under any civil liability or consumer law applicable to the State of Queensland subject to the exception that this exclusion of liability will not apply in circumstances where the conduct of Executive Brains or any of the Released Parties is reckless.
In consideration of being permitted to participate in an Executive Brains program, to the extent permitted by law, the Releasing Parties waive, release, covenant not to sue Executive Brains and the other Released Parties from any and all claims, actions, suits, demands, losses and other liabilities in relation to any of death, physical or mental injury, the contraction, aggravation or acceleration of a disease or the coming into existence, aggravation, acceleration or occurrence of any other condition, circumstance, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to the Releasing Parties (and/or participating minor child/ward) or the community or that may result in harm or disadvantage to the Releasing Parties (and/or my participating minor child/ward) or the community resulting from the INHERENT RISKS of an Executive Brains program or the ORDINARY NEGLIGENCE of Executive Brains (or other Released Parties) that the Releasing Parties (and/or participating minor child/ward) may have arising out of the Releasing Parties participation in an Executive Brains program. This Waiver does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of Executive Brains or a Released Party.
This Agreement shall be governed by and construed in accordance with the laws of Queensland, and the parties submit to the exclusive jurisdiction of the Queensland courts for any matter arising under or relating to this Agreement.
Mediation and Arbitration
In the event of a legal issue, the Releasing Parties agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation within sixty (60) days of Executive Brains being notified by the Releasing Parties of such issue, the Releasing Parties agree that all disputes, controversies, or claims arising out of my participation in an Executive Brains program shall be submitted to binding arbitration. The seat of arbitration shall be Queensland, Australia. The language of the arbitration shall be English and the number of arbitrators shall be one (1). The cost of such action shall be shared equally by the parties.
I understand and agree that this Waiver is intended to be as broad and inclusive as is permitted by the laws of Australia and Queensland and that if any provision shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions. Furthermore, notwithstanding anything to the contrary contained within this Agreement, this Agreement will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any services pursuant to this Agreement of any provision of any Act of the Commonwealth of Australia or of the State of Queensland which by law cannot be excluded, restricted or modified.