I recently had to sign an agreement to participate in an activity, and it included these terms.
The requirement to give up my right to sue for ANY reason seems unreasonable. Wasn’t all that keen on the wide permission to use images of minors either. Is it just me, or is this a bit much?
Whilst this forum is not for providing legal advice on the legitimacy of such waivers, there are many websites that provide some information on the matter. Such can be found here.
I would also be surprised if it was not possible to ‘sue’ should the operator be proven to be negligent such as equipmenf not properly maintained etc or they contravened workplace safety laws.
I suspect that such is required by their insurance/legal counsel to reduce the likelihood of malicious, frivilous or vexatious complaints.
If I may be the devil’s advocate ~ You didn’t HAVE to sign, you CHOSE to sign to participate in an activity.
You do not have to accept the terms and conditions (T&Cs) as written. You are can cross parts out you do not agree with. The vendor may or may not accept your changes. If they don’t they may refuse you entry. You never know till you try. It is up to you to decided if you feel strongly enough about the offending T&Cs to be willing to miss out if your changes are not accepted.
You’re dead right on this one @atang2048. It’s likely to be considered an unfair contract term under the Australian Consumer Law.
I’ll be sure to flag this with colleagues who work in this area.
Hey, I agree this looks very much like an unfair contract term. Section 25 of the Australian Consumer Law actually provides a non-exhaustive list of terms that may be unfair, and terms that limit one party’s right to sue another party are explicitly included.
There was also an ACCC case a few years ago on a similar matter, where it was found that a term that required the consumer to indemnify the business was unfair - http://www.mondaq.com/australia/x/256394/Consumer+Trading+Unfair+Trading/ACCC+v+ByteCard+ACCC+Cracking+Down+on+Unfair+Contract+Terms
You can report issues like this to the ACCC via this link - https://www.accc.gov.au/contact-us/contact-the-accc/report-a-consumer-issue
The ACCC won’t resolve individual disputes, but it may take action if it receives a substantial number of complaints about the same business or industry, or if the issue is one that has been identified as a priority for enforcement action.
Such unfair clauses are routinely added into contracts although they might or might not stand up in court, but they often dissuade the aggrieved from even investigating a suit through the dodgy clause, let alone going ahead and instilling fear the defendant will win and be awarded full costs.
It is a bully tactic that will not easily go away.
Here is a recent story from Gizmodo regarding a similar clause in Amazon Alexa. I can’t help but notice all the legal experts talked to here were foreign. Would the ban against unfair contract terms have a similar impact here?
Unfair Contract terms are not allowed under Australian Law and from a document from ConsumerLaw.gov.au is this "If a court finds a term is unfair, that term is void (treated as if it never existed). If the contract can operate without the unfair term, it will still be binding on all parties.A term of a consumer contract is unfair if it:
• would cause a significant imbalance in the parties’ rights and obligations arising under the contract
• is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
• would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
In deciding whether a term is unfair, a court may take into account the matters that it considers relevant but must take into account:
• the extent to which the term is transparent; and
• the contract as a whole
&
In deciding whether a term in a standard form consumer contract is unfair, the court or tribunal will apply the three–limbed test for unfairness. The test for unfairness, states that a term of a consumer contract is unfair if it:
• would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
• is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
• would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
All three limbs of the unfairness test must be proven to exist, on the balance of probabilities, for a court to decide that a term is unfair"
Section 24 of Australian Consumer Law states
" (1) A term of a consumer contract is unfair if:
(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c ) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c ) presented clearly; and
(d) readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise"
