1.1 The Alba (Pty) Ltd, Registration Number 2015/366674/07 (“the Company”) conducts the “Activity” as defined in Clause 4.
1.2 The Undersigned/minor child under the control of the Undersigned (“the Participant/s”) hereby contracts with the Company to participate in the Activity, subject to the terms and condition of this indemnity.
2. Waiver and Indemnity – The Participant/s acknowledge and accept that:
2.1.1 Notwithstanding that the Activity may be supervised by a trained guide/s, the Participant will be exposed as a result of participating in the Activity, to the risks and dangers inherent in or associated directly or indirectly with the Activity (“the Risks”), including but not limited to those Risks and dangers described in Clause 4.
2.1.2 The Participant is obliged to exercise his/her own independent judgement in familiarizing himself/herself with the nature of the Risks;
2.1.3 It is not possible for the Company or its directors, shareholders or employees or agents or principals to give an undertaking or warranty, whether expressed, implied, tacit or otherwise, that the Risks will not materialise, even when the Activity is undertaken with the supervision of a trained guide/s;
2.1.4 In the event of any accident or injury arising from participating in the Activity, the Company or its directors, shareholders or employees or agents or principals shall provide the immediate first aid treatment of the Participant and the evacuation/transfer of the Participant to the nearest available medical care center/doctor, which medical care center/doctor may be remote and while awaiting evacuation, medical assistance may be limited or non-existent.
2.2 The Participant undertakes the Activity entirely at the Participant’s own risk, in full knowledge of the Risks and the factor set out in Clause 2.1 above.
2.3 The Undersigned accordingly waive all claims of any nature whatsoever which the Participant or his/her Estate may have against the Company or its directors, shareholders or employees or agents or principals arising from the death of or injury to the Participant or the loss of or damage to any property occasioned during the participation in the Activity, notwithstanding that such death or injury or loss or damage has been occasioned by any lack of care or skill, negligence or other omission on the part of the Company or any of its directors, shareholders or employees or agents or principals.
2.4 The Undersigned hereby indemnify and hold harmless the Company, its directors, shareholders and employees, or agents or principals against all loss or damage arising from any claim which may be brought against any one of them by any of the Participant’s dependants and/or family members and/or any minor child (on whose behalf the Participant have signed this form) in respect of any death, injury, loss or damage as is referred to in Clause 2.3.
3. Acknowledgement – The Undersigned in his/her personal capacity/capacity as parent or guardian of the Participant acknowledge by his/her signature hereto:
3.1 to have read and understood this agreement and its implications in law;
3.2 agree in his/her personal/representative capacity to be bound by the above waiver and indemnity and that the above waiver and indemnity will be binding on the Undersigned’s Estate;
3.3 warrants that the Participant is in a sufficiently good physical and mental condition to take part in the Activity having regard to the Participant’s general state of health, fitness and medication requirements.
3.4 agrees that each term or provision of this agreement is entirely separate and separately enforceable from the other terms and provisions herein, and shall in no way be limited or restricted by reference to or inference from any other terms or provisions. If any term or provision of this agreement shall be found to be illegal or unenforceable then, notwithstanding, the remaining terms and provisions hereof shall be and remain binding.
4. Activity and Risks Inherent
4.1 The Participant shall participate in a boat cruise in the V & A Waterfront, which activity is subject to the risk of the cruise boat capsizing, sinking or running aground, or being caught in dangerous sea conditions (whether as a result of engine failure, or general adverse ocean conditions), or the Participant falling overboard, resulting directly/indirectly in injury, death or drowning.
5.1 All matters arising from or in connection with this agreement, its validity, existence and termination shall be determined in accordance with the laws of the Republic of South Africa.
5.2 Should any dispute of any nature whatever arise from or in connection with this agreement and the Activity, then at the election of any party, such dispute shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA. The Participant by his/her signature hereto expressly consent to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency and irrevocably authorizes the Company to apply, on behalf of all parties to such dispute, in writing, to the secretariat of AFSA in terms of Article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.