Indemnity Agreement
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1. The Participant hereby acknowledges and agrees that he or she is fully aware of and accepts any and all risks that may be involved in or may arise from participation in activities taking place during the FMS, FNS & MCCARROLL'S Activity listed above and:
(a) releases and forever discharges FMS, FNS & MCCARROLL'S, its directors, officers, servants, and its agents or any of them; and
(b) indemnifies and holds FMS, FNS & MCCARROLL'S, its directors, officers, servants, and its agents or any of them harmless;
against all actions, claims, demands, losses, damage, expense, injuries (including death or bodily injury), costs (including legal costs), or other liabilities suffered or incurred by the Participant arising out of or in connection with the Participant's involvement in the FMS & MCCARROLL'S Activity. The Participant acknowledges and agrees that this release and indemnity extends to any damage that may occur to the Participant's vehicle, and further acknowledges and agrees that the Participant has elected to use its own vehicle in the FMS, FNS & MCCARROLL'S Activity fully aware of and in acceptance of all risks that are involved in or may arise from participation in activities taking place during the FMS, FNS & MCCARROLL' Activity.
2. Where applicable, the Participant indemnifies FMS, FNS & MCCARROLL'S, its directors, officers, servants, and its agents or any of them from all fines or penalties which may be occasioned by the Participant's operation of the vehicle used in the FMS & MCCARROLL'S Activity in breach of any road, motor vehicle, parking or other applicable laws.
3. The Participant indemnifies and holds FMS, FNS & MCCARROLL'S its directors, officers, servants, and its agents or any of them harmless against all claims, actions or proceedings that may be brought in respect of the death or bodily injury to any third parties and all loss, damage or destruction to property arising directly or indirectly from participating in the FMS, FNS & MCCARROLL'S Activity.
4. The Participant shall immediately inform FMS, FNS & MCCARROLL'S S of any damage or injury to persons or property caused by participating in the FMS, FNS & MCCARROLL'S and shall provide all necessary assistance to FMS, FNS & MCCARROLL'S in respect thereof, including by completing such claim forms, executing such documents and testifying in such suits and actions in connection with such matters as may be requested by FMS & MCCARROLL'S.
5. The Participant acknowledges that FMS, FNS & MCCARROLL'S has the absolute discretion to prevent the Participant from taking part in or discontinuing the Participant's participation in the FMS & MCCARROLL'S Activity where FMS & MCCARROLL'S or its representatives have formed the view (in their absolute discretion) that the Participant is under the influence of any drug or alcohol or would otherwise constitute a hazard to any person or property including the Participant themselves.
6. The Participant consents to participate in the FMS, FNS & MCCARROLL'S Activity on the terms contained herein and declares that he or she has read and understood this Release and Indemnity and agrees that its terms are reasonable and that he or she is subject to the provisions contained in this Release and Indemnity.
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Unaccompanied Test Car and Loan Car Agreement
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7. We agree to allow you the use of a vehicle which does not transfer ownership or any other rights to you and you will return this vehicle in the same condition as it was provided to you.
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8. Our insurer places obligations on us to allow you to drive our vehicle one of which includes that we collect two forms of identification being an unrestricted driver's licence valid for use in Australia and one other form of identification.
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9. You will be responsible for the safety of all passengers and to pay for all loss or damage caused by or to the vehicle which falls outside of our insurance policy(s) or where our insurers decide not to indemnify us because of your actions.
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10. In the event of a claim being made on our insurance policy, you will pay the excess to us immediately following the receipt of an invoice and request from us to pay.
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Company Vehicles <$250,000 per vehicle - $2,500
Company Vehicles >$250,000 per vehicle = 1% of the Market Value or Invoice Cost, whichever is the lesser
per event $7,500
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Substitute Vehicle - Driver Responsibility
11. In addition and where you are involved in an accident while using our vehicle as a service loan car and your insurer provides you with cover for a substitute vehicle you will be required to claim under your policy and indemnify us for any loss or damage to third party property. However where you have already paid to us the appropriate insurance excess for the damage to our vehicle we will reimburse the excess payable under your insurance policy to a maximum of $1,000 upon receiving proof you have paid the excess on your policy.
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Limit on kilometres driven per day
12. Unless otherwise agreed in writing by us, the maximum distance you are permitted to travel each day is limited to 100 kilometres.
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Fuel or other fluids
13. Unless agreed in writing by us, the vehicle must be returned with a full tank of fuel or you will pay us the cost of refueling our vehicle. If loss or damage occurs to our vehicle following the use of incorrect fuel while the vehicle is in your custody you will be responsible to pay us for any subsequent damage. If you are unsure of what fuel to use please check with our staff.
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Mechanical or brake failure
14. You must immediately report any mechanical breakdown, problem or failure to the dealership, and you must not drive the vehicle until you have spoken to us and obtained authority to do so.
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Return of Vehicle
15. We reserve the right to recover the vehicle immediately from you at any time.
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16. In addition, you are responsible for:
• Driving the vehicle in a safe, respectful and lawful manner while obeying all laws and motoring regulations.
• Paying for all traffic infringements while you are in control of the vehicle, including but not limited to speeding, red light cameras, parking fines, and impounding costs etc. along with all associated costs, penalties and legal costs.
• All passengers using the allocated seat belts and/or supply the correct child restraint as required by law.
• All damage and costs in the event you allow another person unauthorised use of the vehicle.
• Not smoking or allowing anyone to smoke in the vehicle.
• Not using the vehicle while you or any other person in the vehicle is under the influence of or affected by alcohol, legal (that would prevent you from driving any vehicle), or illegal drugs or any other banned substance or after you have refused to take a breath/blood/drug or similar test.
• Keeping the vehicle locked when not driving the vehicle and the keys under your personal control at all times.
• If the vehicle is stolen, you must immediately return the vehicle keys to us.
• If you are involved in an accident you will immediately report to us all relevant details (and the police if required) of all loss or damage occurring from the use of the vehicle. Where a third party was involved in the accident, the details of the third party.
•Any property which you or any other person places inside or on the vehicle.
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17. Under no circumstances will you or any other person:
• Allow anyone to drive the vehicle who is not authorised by us in writing to do so.
• Use the vehicle in contravention of any law, road laws or for illegal purposes, race contest or performance of any kind.
• Use the vehicle to push or tow anything or to carry passengers for hire or reward or transport goods of any kind.
• Use the vehicle where you are aware that the vehicle is unsafe or not roadworthy.
• Use the vehicle after the vehicle has been involved in an accident, hit an object or animal without authority from us.
• Use the vehicle on any surface other than a sealed road or where police or any other authority have issued a warning that the road is unsafe to use, such as but not limited to a flood.
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Privacy and Use of Data and Images
18. The Organiser complies with the Australian Privacy Principles and its other obligations under the Privacy Act 1988 (Cth) (the “Act”). A copy of our privacy policy can be found at www.ferraritour.com.au.
19. Any personal Information collected by us in connection with the Tour will only be used:
a. for the management of your registration and your participation in the Tour,
b. to grant you authorization to access a Tour site or Event;
c. to realize and manage all the necessary activities, related and connected with the organization of the Tour;
d. to execute all our present and future legal obligations;
e. subject to your express consent, to use and publish your image on the websites or other promotional communications of the Organiser, Ferrari or MotoKinetic;
f. to manage or facilitate the provision of assistance in any emergency health situation, such as motor-vehicle or other accident or in relation to the prevention of contagions such as Covid-19;
g. to offer additional services and experience offerings that align with the event.
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20. You agree that we may share your personal information with Ferrari, MotoKinetic and other Associated Entities to the extent consistent with the above.
21. You further warrant and agree that where you have provided personal information relating to another person (such as, for example, a companion that will join you during the Tour), you have informed and procured the consent of such person that their personal data may be used as set out in these terms and conditions.
Limitations and Warranties
22. subject to clause 33:
a. the liability of the Organiser to you in connection with the Tour is limited to the extent permitted by law to the amounts paid by you to the Organiser to participate in the Tour.
b. no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, merchantability or fitness for purpose of any goods or services provided under this Agreement is given or assumed by the Organiser and all such conditions, warranties and liabilities (including liability as to negligence) express or implied relating to such goods or services are hereby excluded.
23. Notwithstanding clause 32, if this Agreement constitutes a supply of goods or services to a consumer, as defined in the Australian Consumer Law, then to the full extent permitted by law, nothing in this Agreement will be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by such legislation on you and the liability of the Organiser in respect of a breach of a condition or warranty implied by such legislation (other than any non-excludable implied conditions or warranties), including liability for any consequential loss which you or any other entity or person may sustain or incur, will be limited, at the Organiser’s option, to:
a. The repair or re-supply of the goods or services; or
b. the payment of the cost of having the goods or services repaired or re-supplied; or
c. in the case of goods, the replacement of the goods with equivalent goods, or the payment of the costs of such replacement.
Disputes
24. The parties undertake to use all reasonable efforts in good faith to resolve any dispute that arises between them in connection with these terms and conditions.
25. Any dispute, controversy or claim arising out of or relating to this Agreement will first be the subject of conciliation which will be administered by the Australian Disputes Centre Limited ("ADC") and conducted in accordance with the Conciliation Rules of the ADC in force at the date of this Agreement.
26. Any conciliation proceedings will be held in Sydney.
General
27. The obligations of the parties that are capable of enduring termination will survive termination of these terms and conditions.
28. A single or partial exercise or waiver of a right relating to these terms and conditions will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
29. Each provision of these terms and conditions is severable from the others and no severance of a provision will affect any other provision.
30. These terms and conditions constitute the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter; and may only be altered in writing signed by both parties.
31. These terms and conditions are governed by the laws having effect in the State of New South Wales, and the parties submit to the exclusive jurisdiction of the courts having jurisdiction in that State, and all courts hearing appeals from them.
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Pre-Track and Post-Track Vehicle Inspections
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32: Please note that a pre-track vehicle inspection at one of our certified Ferrari Service Centres is necessary prior to the track day (included in the ticket price). A post-track vehicle inspection is also included in the ticket price.
33. The Pre-Track Inspection track is an essential service designed to ensure your vehicle is safe and ready for the racetrack.
34. The Pre-Track Inspection is a visual examination performed by our team of skilled technicians.
35. They will assess your vehicle for any potential issues that could affect its performance or safety on the track.
36. This detailed check includes inspecting the brakes, suspension, tires, and fluid levels.
37. We would like to clarify that while our Pre-Track Inspection is comprehensive, it is a visual assessment only. It does not include a wheel alignment, replacement of brakes, tyres or any other parts for your vehicle. However, if any issues are discovered during the inspection, our team can provide expert advice on the necessary steps to get your vehicle track-ready.