Tomorrow’s Stars Basketball Pty Ltd (ABN 11 670 007 904)
USA Basketball Tours- Terms and Conditions
PART A- KEY PROVISIONS
1. IMPORTANT PROVISIONS TO BE READ AND UNDERSTOOD BY YOU BEFORE MAKING A BOOKING
(a) By the Supplier’s performance of the Booking Services, the Supplier will acquire admission tickets relating to the Tour Services comprising the Tour (for example, transport and sporting events) for you as your agent. By the Supplier’s performance of the Booking Services, you will be entered into various binding contracts with the Tour Service Providers in relation to the Tour Services.
(b) Except to the extent an act or omission arises as a result of the Supplier’s gross negligence, fraud, criminal conduct or wilful misconduct, your legal rights and obligations in relation to the Tour Services will be subject to the terms and conditions of each Tour Service Provider and you will not have any recourse against the Supplier in relation to the provision of the Tour Services.
(c) Subject to clause 13(c), if you fall ill or are injured or otherwise unable to continue to participate in the Tour following its commencement (for example, if you are arrested), you will be required to make your own arrangements in relation to medical care, travel, accommodation and your return home. It is not the Supplier’s responsibility to ensure that you participate on the Tour. The Tour may continue without you.
(d) Part D of these Terms and Conditions contain several exclusions from, and limitations of, the Supplier’s liability to you. We strongly recommend you read these provisions carefully before agreeing to them. If you do not understand any aspect of these provisions, we strongly recommend you obtain legal advice before making a Booking.
2. Your Contract with the Supplier
(e) Please read these Terms and Conditions carefully, as they contain important information about your legal rights, remedies, and obligations. You must not make any Booking unless you understand and agree with these Terms and Conditions. A Booking cannot be made following the Booking Close Date.
(f) By making a Booking, you agree to comply with and be bound by these Terms and Conditions. These Terms and Conditions (including Parts A through to E inclusive) apply to any Booking you make and form part of the contract between you and the Supplier.
(g) If you are making a Booking on behalf of another person who is not you (whether or not that Booking also relates to you as one of the participants), you warrant and represent to the Supplier that you are authorised to make the Booking on the other person’s behalf and you acknowledge and agree any such Booking binds such a person to these Terms and Conditions. You also agree to ensure the other person is informed and aware of these Terms and Conditions and all Policies.
(h) You appoint the Supplier to provide the Booking Services and Guide Services in accordance with the relevant Tour Details, and the Supplier accepts this appointment. The Supplier may subcontract the performance of the Services or any other obligations to a third party in its sole discretion.
(i) The Supplier may cancel a Tour if it does not secure a minimum number of unconditional Bookings for that Tour (determined by the Supplier in its sole discretion) within the period which is between 12 and 5 months prior to the start date of the Tour. If the Supplier cancels a Tour for this reason, it will refund you in full all payment you make to the Supplier in relation to the Tour. You will not have any additional claim against the Supplier in relation to such a cancellation.
3. Your Obligations
You agree to:
(a) pay to the Supplier the Price for the Tour in accordance with the Payment Schedule;
(b) disclose any pre-existing medical or other condition, injury or concern that may affect the risk that you will suffer injury, loss or damage during the course of the Tour;
(c) comply with all applicable laws (including applicable US laws), Policies and all lawful and reasonable directions of the Supplier (including the Supplier Personnel) while on Tour;
(d) not engage in any reckless, negligent, foolish or unlawful behavior or any other behavior that is likely to cause harm to any person;
(e) care for any child participant on the Tour that you are the parent or guardian of;
(f) ensure you are ready, available and on time for all scheduled Tour Services on the Itinerary, including but not limited to transport (except to the extent you are unwell and unable to participate); and
(g) complete the Booking details honestly and accurately.
4. Paying for the Tour
(a) You are required to pay the Deposit for the Tour on the date you make the Booking. The Price for the Tour is subject to change until such time as you complete the Booking and make payment of the Deposit.
(b) You are required to pay the Price for the Tour in instalments in accordance with the Payment Schedule. If you fail to pay an instalment of the Price within 30 days following its due date, the Supplier may terminate your contract to participate in the tour immediately upon notice to you. Any such termination will be treated as if you had cancelled your contract to participate in the Tour as set out in clause 5.
(c) If you do not pay an amount due under the Payment Schedule on time, you must pay to us interest on the overdue amount until that amount is paid (with interest accruing on a daily basis), at the rate set from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic).
(d) Should the Supplier be required to take any action to recover unpaid amounts owing in relation to the Tour, you agree to indemnify the Supplier in relation to its reasonable debt collection and legal costs on a solicitor/client basis.
5. Cancellations by You
(a) The Supplier does not offer refunds in relation to the cancellation of a Booking for change of mind.
(b) If you cancel a Booking for any reason prior to the commencement date of the relevant Tour (other than in accordance with a right you may have to do so pursuant to the Consumer Guarantees):
• (a) The Price paid by you up to and including the date of the cancellation is non-refundable and will be retained by the Supplier.
• (b) The Supplier will use its reasonable endeavors to cancel any bookings for Tour Services made on your behalf with Tour Service Providers and procure payment or provision of any refunds or credits which are to be provided by the Tour Service Providers in accordance with their respective terms and conditions relating to the relevant Tour Services (if any). Where the Supplier successfully obtains any such refunds and/or credits, it will provide these to you in full.
6. Changes to the Itinerary
The Supplier may make changes to the Itinerary at any time, acting reasonably and without prior notice to you. Such changes may be required due to (without limitation) the occurrence of a Force Majeure Event affecting the Tour or any of the Tour Services. The Supplier will use its reasonable endeavors to ensure the Tour experience is similar to that which was originally contemplated by the Itinerary prior to the change. However, nothing in this provision obligates the Supplier to expend any funds or incur any expenses in using such endeavors.
7. General
(a) Passports and visas
You must have a valid passport and visa which meet the US immigration requirements. Any fines, penalties, payments, or expenditures incurred as a result of such documents not meeting the requirements of those authorities will be the sole responsibility of the Participant (except to the extent caused by the Supplier).
(b) Requirements for travel to and within the United States
Please see www.esta.cbp.dhs.gov for important information regarding compulsory pre-registration for the US visa waiver program (“ESTA”). Australian passport holders will not be able to enter the United States without a valid ESTA or US visa. If you have travelled to Iran, Iraq, Syria, Sudan, Yemen, Libya, Somalia, Cuba, or Democratic People's Republic of Korea (North Korea), then you may not be eligible for ESTA and may have to apply for a US visa (which requires an interview following which approval can take several months). If you are a national of Iran, Iraq, Syria, Sudan, or Democratic People's Republic of Korea (North Korea), you will not be able to travel under ESTA and will also need to apply for a US visa.
(c) Travel insurance
It is a condition precedent of your participation on a Tour that you take out appropriate travel insurance to cover you for the duration of the Tour. Your insurance protection must include sufficient cover for cancellation, medical and repatriation expenses, personal injury and accident, death and loss of personal baggage and money and personal liability insurance. You must produce evidence of such insurance upon request. Insurance cover offered by credit card companies or reciprocal medical cover agreements are often not comprehensive. Travel insurance is strongly recommended by the Department of Foreign Affairs and Trade for all overseas travel.
(d) Travel advice
Government, airline and Tour Service Provider COVID-19 travel requirements are subject to change without notice. Before Booking, regularly after Booking, and immediately before the start of the Tour, we recommend you review the latest Australian Federal Government’s travel requirements. Visit the Australian Department of Home Affairs website www.covid19.homeaffairs.gov.au for more information.
The US may implement measures which continuously change, including additional health and safety protocols in response to COVID-19 and any other pandemics which may impact your travel.
Prior to the start of the Tour, we recommend that you contact the Department of Foreign Affairs and Trade (“DFAT”) or visit their website at www.smartraveller.gov.au for general travel advice, as well as specific advice (including safety alert levels) relating to the US. You can also register your travel plans with DFAT, so that you may be more easily contacted in an emergency.
(e) Health
You must ensure that you are aware of any health requirements and recommended precautions relevant to your travel booking and ensure that you carry any vaccination documentation which may be necessary. In some cases, failure to present required vaccination may deny you entry into the US.
We recommend that you consult with your local doctor, travel medical service or specialist vaccination clinic before commencing your travel. General health advice for the US is also available from DFAT (see www.smartraveller.gov.au).
Whether any medical requests can be accommodated, including (without limitation) access to power, refrigeration and travelling with the use of mobility aids, is subject to the Tour Service Provider in their sole and absolute discretion, and will often depend on several factors, including (without limitation) any modes of transport and local standards at the relevant locations of the Tour. All medical requests are beyond our control, and we cannot guarantee that your request will be accommodated.
8. Appointment of Guardian
If you make a Booking for a participant on a Tour who is a minor (under the age of 18 years old) and is not participating in the Tour with a parent, but is participating in the Tour with a guardian who is not a parent or legal guardian, you acknowledge you have appointed that guardian to supervise of the minor participant throughout the Tour. In these circumstances, you authorise that guardian to make all necessary decisions in the interests of the minor participant, including all decisions which a parent or legal guardian can make.
Without limitation, this will include decisions in relation to safety, health, diet, medical treatment and disciplinary matters. You acknowledge and agree the Supplier is not required to monitor the decision making of that guardian or to supervise the minor participant to any extent.
9. Privacy
You agree that the Supplier may collect and use the personal information supplied by you subject to the provisions of the Supplier’s privacy policy published on the Pages (as amended from time to time).
10. Applicable Law and Severability
(a) These Terms and Conditions are governed by the law in force in the state of Victoria. The parties submit to the non-exclusive jurisdiction of courts of the state of Victoria and any courts that may hear appeals from those courts about any proceedings in connection with these Terms and Conditions.
(b) If any provision of these Terms and Conditions is void, voidable by a party, unenforceable or illegal it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from these Terms and Conditions without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of these Terms and Conditions.
PART B- BOOKING SERVICES TERMS AND CONDITION
11. Appointment to Provide Booking Services
(a) You appoint the Supplier to provide you with the Booking Services, and the Supplier accepts this appointment on the terms and conditions of this Part B and the other applicable provisions of these Terms and Conditions.
(b) You acknowledge and agree:
1. the Supplier is authorised to book Tour Services with the Tour Service Providers on your behalf;
2. the relevant Tour Service Providers are the sole providers of the Tour Services;
3. the Tour Service Providers may make changes to the Tour Services with little or no notice to you;
4. you are bound by the terms and conditions provided by the Tour Service Providers in relation to the Tour Services, and these will be subject to US law;
5. to pay all fees (including cancellation fees), expenses, costs and liabilities you incur by reason of your acquisition of the Tour Services pursuant to our provision of the Booking Services;
6. the Supplier does not provide the Tour Services, or any aspect of them, and the Supplier has no control over them; and
7. the Supplier will not always be able to verify if, and cannot guarantee that, all information provided by the Travel Service Provider is accurate, complete and correct.
12. Terms and Conditions Relating to the Tour Services
(a) The Travel Service Provider’s terms and conditions are separate to these Terms and Conditions. The relevant Travel Service Provider’s terms and conditions can usually be accessed on their website. If you would like any assistance to access any Travel Service Provider terms and conditions, if you are not sure which terms and conditions apply to your Booking, or if you would like us to provide you with a full copy of the Travel Service Provider terms and conditions, you may contact us for this purpose.
(b) The Travel Service Provider’s terms and conditions may include terms and/or fees relating to booking cancellations or changes for reasons outside the Travel Service Provider’s control, conditions relating to cancellations or changes on your part which may incur cancellation or change fees, the exclusion or limitation of liability of the Travel Service Provider, and the provision of data about you or provided by you to a third party.
(c) Your legal rights in connection with the provision of Travel Services are against the relevant Travel Service Provider and, except to the extent an act or omission arises as a result of the Supplier’s gross negligence, fraud, criminal conduct or wilful misconduct, are not against us.
(d) For the avoidance of any doubt, in the event of a Travel Service Provider being unable to provide you with a relevant Travel Service due to that Travel Service Provider becoming insolvent or being placed under external administration, the Supplier has no obligation to reimburse you for the cost of your booking, or for any loss or damage you may otherwise suffer as a result of any such insolvency or external administration.
PART C- GUIDE SERICES TERMS AND CONDIDTIONS
13. Appointment to Provide Guide Services
(a) You appoint the Supplier to provide you with the Guide Services, and the Supplier accepts this appointment on the terms and conditions of this Part C and the other applicable provisions of these Terms and Conditions. You acknowledge and agree the Supplier may suspend the provision of the Guide Services to the extent necessary to deal with a medical or other emergency on the Tour, including in relation to a minor participant who the Supplier is required to supervise.
(b) If you fall ill or are injured or otherwise unable to continue to participate in the Tour following its commencement (for example, if you are arrested), you will be required to make your own arrangements in relation to medical care, travel, accommodation and your return home. Subject to clause 13(c), it is not the Supplier’s responsibility to ensure that you participate on the Tour. Subject to clause 13(c), the Tour may continue without you.
(c) If the participant on a Tour is a minor (under the age of 18 years old) and is not participating on the Tour with a parent, legal guardian or an appointed guardian, the Guide Services will also include the supervision of the minor participant throughout the Tour. In these circumstances, you appoint the Supplier and the Supplier Personnel as the guardian of the minor participant during the Tour and authorise them to make all necessary decisions in the interests of the minor participant, including all decisions which a parent or legal guardian can make. Without limitation, this will include decisions in relation to safety, health, diet, medical treatment and disciplinary matters.
14. Supplier’s Rights
The Supplier reserves the rights to:
(a) direct you to not participate in an activity or part of an activity during the Tour if the Supplier determines there is a real risk to your health and safety or the health and safety of any other person;
(b) restrict your participation in an activity or part of any activity during the Tour where reasonably necessary to accommodate your age, skill level, ability, health or medical condition; and
(c) suspend or terminate your participation in the Tour where you fail to fulfil your obligations under these Terms and Conditions, the Policies or you fail to follow the lawful and reasonable directions of the Supplier (including directions from the Supplier Personnel).
15. Medical Assistance
You agree that if you suffer any injury or illness, the Supplier and Supplier Personnel may provide first aid and/or medical treatment at your expense (including by calling an ambulance) and that your acceptance of these terms and conditions constitute your consent to such first aid and/or medical treatment.
16. Images of Participants
(a) Unless you notify the Supplier otherwise prior to the commencement of the Tour, you authorise the Supplier and Supplier Personnel to take appropriate photographs and video footage of you during the Tour which may be used by the Supplier solely for its marketing and advertising purposes. The Supplier does not have the right to identify you by name without your further consent.
(b) Where the Supplier is permitted to use images and video footage of you as set out above, you waive any rights and claims, present and future, to any fees or royalties or other benefits, in connection with the Supplier’s use of images and video footage of you.
PART D- EXCLUSIONS AND LIMITATIONS OF THE SUPPLIER'S LIABILITY TO YOU
Risk Warnings
Participation in the Tour involves significant travel (including air travel and road travel), basketball playing and training (a limited-contact sport), athletic activities, physical exertion and attendance at large public events. Therefore, you are at risk of personal injury and death, including due to the acts or omissions of other participants on the Tour.
To the extent permitted by applicable law and subject to the remainder of this Part B, you acknowledge and agree you assume these risks voluntarily, and these risks are your own.
You acknowledge that you are choosing to travel overseas at a time where you may be exposed to COVID-19 or some other infectious disease. It is your own responsibility to acquaint yourself with all relevant travel information, including applicable health risks. You acknowledge that your decision to travel is made based on your own consideration of this information, and you acknowledge and agree that you are aware of, and assume responsibility for, the risks associated with travelling at this time.
Warning Under the Australian Consumer Law and Fair Trading Act
Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you:
(a) are rendered with due care and skill;
(b) are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and
(c) might reasonably be expected to achieve any result you have made known to the supplier.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the supplier is entitled to ask you to agree that these statutory guarantees do not apply to you.
If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.
NOTE:
The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
Exclusion of Liability – Victorian Consumer Act
To the extent that the Services involve the Supplier’s provision of Recreational Services, and the Victorian Consumer Act applies to such Recreational Services, the Supplier will have no liability to you in respect of death or:
(a) an injury of a natural person (including the aggravation, acceleration or recurrence of an injury of the individual); or
(b) the contraction, aggravation, acceleration or recurrence of a disease of a natural person; or
(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to a natural person that is or may be harmful or disadvantageous to, or result in harm or disadvantage to the person or the community,
because of an act or omission by the Supplier which constitutes a failure to comply with the Consumer Guarantees.
This exclusion of liability will not apply where the relevant act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission.
Exclusion of Liability – Australian Consumer Act
To the extent that the Services involve the Supplier’s provision of Recreational Services, and the Australian Consumer Act applies to such Recreational Services, the Supplier will have no liability to you in respect of death or:
(a) a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual);
(b) the contraction, aggravation or acceleration of a disease of an individual; or
(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, 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 individual or community, or that may result in harm or disadvantage to the individual or community,
because of an act or omission by the Supplier which constitutes a failure to comply with the Consumer Guarantees.
This exclusion of liability will not apply where the person suffers significant personal injury that is caused by the reckless conduct of the Supplier.
Release and Indemnity in Favour of Supplier and Supplier Personnel
Subject to any rights you have under the applicable Consumer Guarantees, and to the extent permitted by all other applicable laws:
(a) you and the Participant release and forever discharge the Supplier and Supplier Personnel from all actions, suits, proceedings, claims, demands, damage, penalty, cost or expense however arising from or in connection with the Participant’s participation in the Tour (a Claim); and
(b) you and the Participant indemnify and will keep indemnified and hold harmless the Supplier and the Supplier Personnel (for whom the Supplier holds the benefit of this indemnity in trust) against all losses suffered or incurred by any of the Indemnified Persons which arise directly or indirectly out of any Claim.
The releases and indemnity set out above will not apply to the extent a Claim relates to the gross negligence of the Supplier or the Supplier Personnel.
Events Beyond the Supplier’s Reasonable Control
Subject to any rights you have under the applicable Consumer Guarantees, and to the extent permitted by all other applicable laws, if the Supplier’s performance of the Services is impacted by a Force Majeure Event, the Supplier will not be liable to you for any failure or delay in performing any such impacted obligations to the extent the failure or delay is caused by the Force Majeure Event.
The Supplier will use its reasonable endeavors to overcome the impact(s) of any relevant Force Majeure Event, and keep you updated from time to time on the impact or likely impact any such Force Majeure Event will have on the Supplier’s performance of the Services.
PART E- DEFINITIONS
In this document, including Parts A through E (inclusive), but excluding the section in Part B entitled “Warning under the Australian Consumer Law and Fair Trading Act”:
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Australian Consumer Law
means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
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Booking
means the registration, booking or reservation of a participant on a Tour through the Pages or any other means (including through telephone, text message or email), which becomes effective when the relevant Deposit is paid in full.
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Booking Services
mean the Supplier’s acquisition of the relevant Tour Services for you as your agent, in accordance with the Tour Details.
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Booking Close Date
means the last day on which a Booking can be made in relation to the relevant Tour, as set by the Supplier and published on the Pages, as may be amended by the Supplier from time to time prior to your Booking.
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Consumer Guarantees
mean the consumer guarantees contained in Subdivision B of Division 1 of Part 3-2 of either the Victorian Consumer Law or the Australian Consumer Law (whichever is applicable).
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Deposit
means the initial amount payable by you in order to make and secure a Booking, as notified to you or published on the Pages on or prior to the date of the Booking.
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Force Majeure Event
means means any act, event or cause, affecting the Supplier that is outside the Supplier’s reasonable control, including, but not limited to:
(a) a Tour Service Provider ceasing trading or becoming insolvent;
(b) a Tour Service being changed, cancelled or rescheduled;
(c) a medical or other emergency occurring in relation to a Tour participant;
(d) war, acts or threats of terrorism, riots, revolutions, civil war, acts or threats of sabotage, national emergency (whether in fact or law), imposition of martial law, government requisition or any unlawful act against public order or authority;
(e) adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods;
(f) epidemics (including COVID-19), pandemics (including COVID-19), quarantines, radiation and radioactive contamination; or
(g) boycotts, strikes and other labour difficulties, involving employees, contractors or agents of third parties.
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Guide Services
means the Supplier’s basic assistance, through its Supplier Personnel, in relation to your participation in the Tour. This will include Supplier Personnel accompanying you on the Tour and providing information to you in relation to the Tour Services, their location and timing.
The Guide Services include the organisation and conduct of basketball games and basketball training, along with some sight-seeing.
For the avoidance of any doubt, the Guide Services are completely separate to, and do not form any part of, the Tour Services being provided and performed solely by the Tour Service Providers.
If the participant on a Tour is a minor (under the age of 18 years old) and is not participating on the Tour with a parent, legal guardian or an appointed guardian, the Guide Services will also include the supervision of the minor participant throughout the Tour under clause 13(c).
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Itinerary
means the schedule of Tour Services constituting a Tour.
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Pages
mean the Supplier’s website and social media pages.
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Payment Schedule
means the instalment payment schedule for the Tour to which your Booking relates, as notified to you or published on the Pages on or prior to the date of the Booking. The Payment Schedule includes the Deposit which is due and payable on the date you make the Booking.
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Policies
mean the applicable policies of the Tour Service Providers as amended from time to time (including after the date of the Booking), and the reasonable policies of the Supplier notified to you or published on the Pages on or prior to the date of the Booking.
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Price
means the total price for the Tour payable by you, as set by the Supplier and published on the Pages and as may be amended by the Supplier from time to time prior to your Booking.
The Price encompasses portions relating to the Booking Services and Guide Services. The remaining portion relates to the total cost of the Tour Services.
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Recreational Services
has the meaning given to that term under section 139A(2) of the Competition and Consumer Act 2010 (Cth).
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Services
mean the Guide Services and/or Booking Services provided by the Supplier relating to the Tour, as the case requires.
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Supplier
means Tomorrow’s Stars Basketball Pty Ltd (ABN 11 670 007 904).
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Supplier Personnel
means the Supplier and its employees, officers, contractors and agents.
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Terms and Conditions
mean these USA Basketball Tour Terms and Conditions, including Parts A through E (inclusive).
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Tour
means the basketball tour in the US as particularised in the Tour Details.
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Tour Details
mean the details and particulars of the Tour, as notified or communicated to you, including those details published on the Pages.
The Tour Details include the Itinerary and the Tour Services which will be provided by Tour Service Providers during or in connection with the Tour.
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Tour Services
means all goods and services provided to you by a Tour Service Provider pursuant to the Supplier’s provision of the Booking Services as your agent, including but not limited to flights, ground transportation, accommodation, tours, sporting events, amusement parks, basketball training, food and hospitality.
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Tour Service Provider
means a third party provider of Tour Services.
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Victorian Consumer Act
means the Australian Consumer Law and Fair Trading Act 2012 (Vic).
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Victorian Consumer Law
means the Australian Consumer Law which applies as a law of Victoria pursuant to section 8 of the Victorian Consumer Act.
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You or you
means the person making a Booking and each person stated as a participant in a Booking.
