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Terms and Conditions

Live Ningaloo Terms and Conditions

These Terms and Conditions apply to the services provided by Renlyn Australia Pty Ltd (ACN 162 736 003 t/a Live Ningaloo) (“Live Ningaloo”, “us”, “we”, “our”) and override any and all other terms and conditions previously provided to you.  Please read them carefully.

Special Conditions:

COVID19

Notwithstanding anything to the contrary in the Contract, due to coronavirus (COVID-19), the following conditions currently apply to our services (the capitalised terms used in this section are defined later in these Terms and Conditions):

We reserve the right to reschedule your booking in order to create a minimum of four (4) person guest list. We may ask you in our Booking Form to provide us with your arrival and departure dates so that we can strive to book your tour within such timeframes. However, if we are unable to do so, we may place you with another operator and refund you the difference in fees (if any). If in turn, a placement with another operator is not possible, we will provide you with a full refund of the Fee (this will be your exclusive remedy and we will have no any other liability to you).

You acknowledge and agree that:
you may be subject to a temperature reading;
we reserve the right not to take you on a tour if you are not feeling well (if the temperature reading indicates higher than usual temperature or you otherwise have cold or flu symptoms), in which case our only liability to you will be the provision of a full refund of the Fee; and
we may amend the conditions of the Contract at any time upon notice to you in the event of changes in legislation or government recommendation that may affect performance of the Contract.

Confirmations

When making a booking, either by phone, email or through our automated system (when booking online yourself) you will receive an email with official confirmation from our reservation system with your booking number and detailed information about your booking (“Booking Form”). The Booking Form and these Terms and Conditions (including all annexures) form a contract between us and you with respect to the tour specified in the Booking Form (“Contract”). It is your responsibility to check that the details in the Booking Form are correct (including but not limited to booking date). If changes need to be made, those must be made in writing via email.
You will receive another emailed confirmation through our official reservation system with the changed information. If you do not receive this official confirmation from our reservation system within twenty-four (24) hours, your booking has not been updated. Please get in touch with our office to ensure the details have been transmitted. For the avoidance of doubt, any inaccuracies or corrections will not invalidate the Contract.
Without limiting other methods of accepting the Contract by you (such as signing it or by making a booking and checking the “agree and accept” check-box on our online systems), a confirmation of a proposed tour and payment by you of a deposit will constitute your acceptance of the Contract in its entirety.
The term “Booking Form” also includes, where circumstances require, you placing orders for our gift cards or other goods or services.
“you”, “your” refer to the customer making a booking with us and/or receiving our services.

Special Conditions

The Contract is subject to special conditions that may be specified in the Booking Form or at the beginning of these Terms and Conditions (“Special Conditions”). In the event of any inconsistency between these Terms and Conditions and the Special Conditions, the latter will prevail to the extent of such inconsistency.

Provision of services and fees

We will provide the services specified in the Booking Form (“Services”) in accordance with the Contract and with reasonable care.
You will pay us the price for the services specified in the Booking Form (“Fee”). The Fee is exclusive of GST and is subject to additional charges described in these Terms and Conditions.

Exclusions

The Services and the Fee are subject to exclusions (if any) specified in the Booking Form.

Promotions

From time to time as part of our marketing strategy, we will offer specials and discounts. Unfortunately, these will not apply to the Contract (your existing booking). Whilst we apologise for any disappointment caused, our promotional and special discount offers are never combinable.

Payment Terms

In order to secure your booking we require payment of the Fee in full within seven (7) days after booking the tour and in any event within fourteen (14) days prior to the date of the tour. If this payment is declined, we may make attempts to contact you via the mobile phone and email address you have provided when making the booking to secure the balance owing.  However, if we have been unable to secure the agreed payment of the Fee, your will forfeit your booking and we will then attempt to sell these tickets in the limited time available to us before the tour departs. This is unfortunate, but we simply cannot afford to go out with empty spaces that customers have reserved but not paid for that we could have sold to other customers.

Group & exclusive or private (rent the whole boat) bookings

Notwithstanding anything to the contrary in the Contract, for group bookings, private or exclusive hire:

  • a minimum group number of five (5) people (unless otherwise is permitted by the Special Conditions);
  • payment of the Fee in full must be received by us in full within seven (7) days after booking the tour;
  • we do not accept split payments – we will accept one (1) payment for the entire group from the main contact – this makes it easier for us to track payments;
  • two (2) days cooing-off period applies where full Fees was received by us thirty-two (32) or more days prior to tour date.

Credit Card Fees, Transactions, and Payment Details

You acknowledge and agree to a booking fee when placing a booking online. Live Ningaloo is not responsible for any fees or bank fees (this also includes cancellations).
If you wish to make your booking online, but avoid the online booking fee and pay by bank transfer, please add “banktransfer” (this is not case sensitive) to the promo code line when checking out.
When making booking and use “banktransfer” the bank details will be send separately via email.
Please make payments to Renlyn Australia Pty Ltd on behalf of Live Ningaloo. Please reference your booking number in the payment.

Gift Cards

Gift cards must be presented upon redemption (a unique code must be using in the case of online redemption) and can only be used for the purchase of goods and services from Live Ningaloo.
Lost, stolen or accessed without your authorisation gift cards will not be replaced or refunded. Anyone that has a your gift card can use it. Therefore, you are solely responsible for security of your gift card and your electronic devices where you store your digital gift card. Gift cards will expire thirty-six (36) months from the date of issue. Gift cards are not redeemable for cash, this includes current remaining and expired balances.

No Sighting Policy

This section applies only to our dedicated whale shark swimming tours offered between mid-April and mid-July each year. Whale Sharks and all of the other animals that inhabit Ningaloo Reef are completely wild and are not trained, encouraged or coerced in any way to interact with passengers or crew. They can at times be unpredictable and the location and/or duration of time taken to locate them cannot be guaranteed or predicted by Live Ningaloo crew or management. Some animals are seasonal and we do not guarantee that passengers will see all or in rare cases any of the more sought after animals found on the reef. Example: Humpback Whales, Dugongs, Turtles.
On the rare occasion that we have no sighting of a whale shark, we have a no sighting policy that allows you, if you are a snorkeling passenger to benefit from one (1) of the following options, subject to the restrictions set out in this section (“No Sighting Policy”):

  • A free repeat tour on the next available day which may or may not be the following day; or
  • If you have to leave the next day, we will provide you with a non-transferable voucher valid for two (2) years from the date of issue.

Restrictions: our No Sighting Policy only applies:

  • during the period between 15 April – 15 July; and
  • to snorkeling passengers and does not apply to observers.

Rescheduling & Cancellations

No refund can be given in the event of non-arrival or any unused services due to flight and/or weather disruption. As a small bespoke tour operator operating over a short season, our business depends on maximising occupancy and cancellations often result in empty seats due to booking lead times and limited air capacity.
Cancellations must be made in writing (post or email) and received by Live Ningaloo fourteen (14) days before the date of the booked tour. To avoid any miscommunication, requests for cancellations or amendments over the phone will not be accepted.
A date change (rescheduling) may be made by you in consultation with us up to fourteen (14) days prior to the date of the tour, subject to availability. Any such rescheduling made will incur a $25.00 re-booking fee. If you are making a change within thirteen (13) days or less prior to your booked tour date, you will incur the full rate of the seat cost in addition to the cost of the new seat(s) booked, as will be determined in our sole reasonable discretion.
Any tours purchased through a travel agent or third party will need to be refunded via that agency and they may elect to charge a cancellation penalty over and above Live Ningaloo’s as listed above.
Group & Exclusive or private (rent the whole boat) bookings
Notwithstanding the foregoing, for groups of five (5) or more people and exclusive or private hire, cancellations or rescheduling outside of thirty (30) days prior to tour date will forfeit 30% of the Fee. Cancellations or rescheduling within thirty (30) days of the booked tour date will forfeit 100% of the Fee. This does include group number changes, provided that such changes do not result in a group number being less than five (5) people (unless otherwise is permitted by the Special Conditions).

  • Unused Services
    There will be no discounts or monies refunded to you by us for missed or unused services, bookings or tours, including your voluntary or involuntary termination/departure from a tour.
  • Rescheduling & Cancellations by Live Ningaloo
    Cancelling tours is something we do everything possible to avoid.  However, occasionally due to safety concerns, weather conditions, factors beyond our control, mechanical breakdowns, or minimum passenger numbers required for a tour to depart not being reached, we do have to cancel or reschedule a tour.
    When this occurs, we commit and reserve the right to doing everything we can to deliver some form of enjoyable and substitutable tour experience to you for your money, including but not limited to rescheduling you onto our next available tour, or placing you on another company’s oceanic tour. In those instances, where this is not possible before you leave town, we will give you a tour voucher valid for the next two (2) years for you to use when you are next in town. This voucher is not sell-able or transferable.
    You acknowledge and agree that if we exercise our right to cancel or reschedule your tour, in no event we will be liable for any loss, damage, costs or expense incurred by you relating to cancelation or rescheduling or for your holidays in general (such as, without limitation, any and all costs incurred by you in travelling to and from Exmouth, and any and all accommodation and meal expenses whilst in Exmouth).
  • Travel Insurance
    Unforeseen circumstances may result in you having to change your plans or even cancel at the last moment. To protect non-refundable deposits and payments we strongly recommend you purchase comprehensive travel insurance. This is available from travel agents, some health care and credit card companies and via various websites.
    We STRONGLY recommend that all guests obtain travel insurance including a cancellation policy and emergency medical care. Please be sure to consider pre-existing medical condition clauses, valuable items cover etc to ensure that the policy is right for you.
    For the avoidance of doubt, travel insurance is your responsibility and we are not liable to you for obtaining or failing to obtain a travel insurance.
  • Fully informing us of any and all medical conditions of relevance
    You are required to fully disclose and communicate to us at the time of making a booking any and all medical (including physiological) conditions or history that may impact on their ability to participate in a cruise, snorkeling, any water, boating or any other activity during the tour in a normal and safe manner.

You acknowledge and agree that:

  • the above information is required by us in order for us to consider whether we will be able to assist you during the tour;
  • if we allow you to participate in the tour, you will do so at your own risk and we will not be liable to you or anyone claiming on your behalf or otherwise in connection with the Contract, for any injury, death, damage, loss, cost or expense that you may suffer due to or in connection with your participation in the tour; and
  • we reserve the right to cancel your booking, in which case our only obligation to you will be the refund of the Fee paid by you (if any).

Weather Conditions and events outside of our control

You acknowledge and agree that certain circumstances (including weather) are beyond of our control and we cannot be held responsible nor liable for such circumstances.
You further acknowledge and agree that it may become necessary to alter, reschedule, or change aspects of our tour because of weather or other issues beyond our control.  In this instance, we will do everything we can to ensure our passengers have the best possible time they can whilst on our tour, including providing substitute tours to full or partial value if at all possible.  However, we cannot be held responsible for when such events occur and accept no liability for the impact of such changes or associated issues on passengers.

Live Ningaloo’s Liability

Except to the extent required by law, Live Ningaloo (including its officers, directors, managers, principals, stockholders, related bodies corporate, partners, members, employees, agents and representatives) shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to you for any loss, liability, damage or expense arising out of or in connection with the performance or failure to perform of any services contemplated by these Terms and Conditions, your failure to observe and/or comply with the provisions of these Terms and Conditions, inaccurate booking information, rescheduling or cancellation of the services, personal injury, sickness (including without limitation sea-sickness), loss of use or anticipated benefit or saving, financing costs, or for any delay, additional expense or inconvenience, or for any special, indirect or consequential loss. Otherwise, Live Ningaloo’s (including its officers, directors, managers, principals, stockholders, related bodies corporate, partners, members, employees, agents and representatives) maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to you is limited to the Fee.

You must take reasonable steps to mitigate any loss you suffer or incur under or in connection with the Contract.

You acknowledge and agree that a Waiver and Release appearing as Annexure A to these Terms form part of the Contract.

Indemnity by you

We subscribe to a ‘you break it, you bought it’ mantra. This also includes loss of items. Please be careful and thoughtful with all items on board our vessel or furnished by us. If the unfortunate situation where something is broken or loss occurs, we will notify you of the extra cost and bill accordingly. Live Ningaloo will require you to pay for any lost or damaged gear.
Without limiting the foregoing, you indemnify us against all losses, damages, costs or expenses incurred or suffered by us (including our officers, directors, managers, principals, stockholders, related bodies corporate, partners, members, employees, agents and representatives) arising out of your breach of the Contract or negligent, willful or wrongful act or omission.

Photos and Videos

Unless you advise us to the contrary in writing, you acknowledge and agree that all photos and videos taken by Live Ningaloo’s onboard photographer and videographer will become our property immediately upon creation and you consent to us using such photos and videos may be used by us for advertising, promotional and other business purposes in any medium we choose without the need for further approval from you.
You also agree that any photos created by Live Ninglaoo you use for social media or other marketing purposes must be credited to Live Ninglaoo, using the appropriate social handle and name of the business.
All photos and footage taken inside the national park waters falls under the licensing agreement we have with Parks and Wildlife (“Licensing Agreement”). The requirement of the Licensing Agreement is that as between you and us, all rights to photos and footage taken, even if by you with your own equipment will vest into us immediately upon creation. You hereby acknowledge and agree to comply with the abovementioned requirements of the Licensing Agreement.
Furthermore, no photos or footage taken by you can be sold or used for promotional purposes without Live Ningaloo’s consent.

Correspondence

All correspondence sent by us to you is confidential. It may also be privileged or otherwise protected by work product immunity or other legal rules. If you have received it by mistake, please let us know by e-mail reply and delete it from your system; you may not copy this message or disclose its contents to anyone. Please send a text or phone us with any containing deadlines as incoming e-mails are not screened for response deadlines.

Confidentiality and intellectual property rights

You acknowledge and agree that we own intellectual property rights in all our services, documentation and any other materials provided to you.

You must keep confidential all our intellectual property rights and any other information provided to you which is marked “confidential” or can otherwise be reasonably considered to be confidential.

Customer Reviews & Feedback

Live Ningaloo encourages all guests to provide feedback (we love compliments too!). We are committed to doing the right thing at all times, which includes making good on any mistakes we make or negative impacts we have on any of our customers to the very best of our abilities.
However, because of the significant risks to our brand and reputation, we require each and every guest to agree, prior to boarding any of our vehicles or vessels, to agree to the following Social Media Condition.  Before posting negative reviews or comments about our company on social media sites, or in the public domain, you commit to first raising any and all complaints about any aspect of our operations with the company’s management directly at: [email protected], and providing us with a fair and reasonable opportunity to make good and address any issues raised to you satisfaction.
If you fail to do this prior to placing any form of negative comment on social media sites or into the public domain, you expressly grant Live Ningaloo the right and express authority to have any and all such comments you have posted to be removed on your behalf, without any need for us to first notify you that we will be doing so.  Subsequent to the removal of such comments, Live Ningaloo commits to contacting you to work through the issues raised and addressing any and all issues of concern you have raised to the best of our ability and to make good as appropriate.

Offers by third-party businesses

Qantas Passenger Perks: We are partnering with Qantas to offer a discount with each swimming ticket purchase on our humpback whale swimming and adventure day tour (01 August – 31 October 2020). This offer is only valid for direct guests booking that specific seat (we repeat, swimmers only) and tour. This offer cannot be retroactively applied to a previously-made booking.
In order to get this offer you must supply a valid 6 digit Qantas Booking Reference Number and record this on the booking form under ‘Qantas Code’ and also apply the advised promo code at checkout. This offer cannot be applied later to a booking already made, nor can it be combined with other offers. This offer is only valid at time of booking your Qantas flights.
Pizza & Pint: We are offering a special pizza and pint with each swimming ticket purchase on our humpback whale swimming and adventure day tour (01 August – 31 October 2020). This offer is only valid for direct guests booking that specific seat (we repeat, swimmers only) and tour. This offer cannot be retroactively applied to a previously made booking. In order to get this offer you must make the booking online yourself using the ‘pizzaandpint’ code in the promo code section when prompted on the online booking form.
Notwithstanding anything to the contrary in the Contract, offers made by our third-party partners may be subject to third-party partners’ terms and conditions, in which case third-party partners’ terms and conditions will prevail over the Contract to the extent of inconsistency.

General

Contract post-termination or expiry: the covenants, conditions and provisions of the Contract which are capable of having effect after the expiration of the contract will remain in full force and effect following the expiration of the contract.
Governing law & jurisdiction: this contract is governed by the law in force in Western Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Western Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with the Contract, and waives any right it might have to claim that those courts are an inconvenient forum.
Severability: if any provision of the Contract is held to be invalid, unenforceable or illegal for any reason, the Contract will remain otherwise in full force apart from such provision which will be deemed deleted.

Annexure A – Waiver and Release

Involvement and participation in certain activities conducted by or in association with Renlyn Australia Pty Ltd (ACN 162 736 003 t/a Live Ningaloo) can carry a significant risk of damage to property, personal injury or death.
I understand that I must exercise my own skill and judgement in regard to the risks that may be posed by undertaking such activities and to ensure that I am capable, fit and healthy enough to undertake any activity conducted by or in association with Renlyn Australia Pty Ltd – and that Renlyn Australia Pty Ltd and its directors, officers, agents and staff are not responsible for exercising such skill and judgement on your behalf.
I acknowledge that my participation in any activities conducted by or in association with Renlyn Australia Pty Ltd is at my own risk.
I further acknowledge that I will be in a National Park and that a full brief will be provided by a senior Live Ningaloo Staff member as to the environmental issues and principals of the Cape Range National Park and Ningaloo Marine Park as set out by Parks & Wildlife (PAW) on tour date.
To the fullest extent permitted at law and by reading and acknowledging the detail of this document I:
waive and agree not to assert any claims or causes of action against the Renlyn Australia Pty Ltd and its directors, officers, agents and staff; and
release and indemnify on a full indemnity basis Renlyn Australia Pty Ltd and its directors, officers, agents and staff from all liability arising from my participation in any activity conducted by or in association with Renlyn Australia Pty Ltd.
I acknowledge and agree that:
any photos/video taken can be used by Renlyn Australia Pty Ltd for marketing purposes as Renlyn Australia Pty Ltd owns all rights to all photos/videos taken; and
all photos and footage taken inside the national park waters falls under the licensing agreement Renlyn Australia Pty Ltd has with Parks and Wildlife (“Licensing Agreement”). The requirement of the Licensing Agreement is that as between me and Renlyn Australia Pty Ltd, all rights to photos and footage taken, even if by me with my own equipment, will vest into Renlyn Australia Pty Ltd immediately upon creation and I hereby agree to comply with the foregoing requirements of the Licensing Agreement and to irrevocably assign all intellectual property rights in the said material to Renlyn Australia Pty Ltd.
I acknowledge and agree anything I bring aboard is my responsibility and I release Live Ningaloo (Renlyn Australia Pty Ltd) of any responsibility of loss, damage, or theft of my property.
I certify that I have read, understood and agree to be bound by:
the wording of this disclaimer; and
the Terms and Conditions applicable to the services of Renlyn Australia Pty Ltd.

By signing the following declaration you accept:

  • these Terms and Conditions;
  • The Booking Form; and
  • Annexure A – Waiver and Release: