Part A - Terms and Conditions
1. Outline of subscription services
(a) These terms and conditions apply if you have subscribed to a Subscription Training Package with the Supplier, being either a 6-Month Essentials Package or a 12-Month Professional Package.
(b) In order to subscribe and maintain your Subscription Training Package, you must enter into and maintain a direct debit facility with PayAdvantage (or such other reputable third-party direct debit service provider determined by the Supplier from time to time acting reasonably). The Supplier may cancel your subscription to a Subscription Training Package where you fail to enter into such a direct debit facility prior to the first Activity forming part of a Subscription Training Package or fail to maintain such a direct debit facility during the term of a Subscription Training Package. If the Supplier takes this action, you will be required to pay a pro-rata portion of the remaining total Price to be paid to the Supplier in accordance with Part A, clause 12 as if you had cancelled the Subscription Training Package under that clause as at the date of the relevant failure.
(c) These Private Basketball Subscription Training Terms and Conditions apply only to the Services performed by the Supplier pursuant to your subscription to a Subscription Training Package. The Supplier’s separate Program Terms and Conditions will apply in relation to other services performed by the Supplier forming part of a Program. The two sets of terms and conditions can apply to you and a Participant simultaneously if you have a subscription to a Subscription Training Package and also participate in a Program.
(d) The person (you) who purchases a Subscription Training Package is bound by this Agreement, along with the Participant (if you and the Participant are not one and same person).
(e) You are required to pay the upfront refundable bond upon entry into a Subscription Training Package. This will be refunded to you in full following payment of the entire Price, subject to the Supplier’s ability to draw upon this amount pursuant to Part A, clause 12.
2. Subscription Training Packages
(a) The Subscription Training Packages available to you and their Inclusions are set out below:
6- MONTH ESSENTIALS PACKAGE
Term: Six months (26 weeks)
Inclusions:
- Unlimited semi-private and private training sessions.
- Access to all of the Supplier’s coaches and training resources maintained by the Supplier
- Priority VIP access to bookings for our Programs.
- Professional mentoring and goal setting.
- Regular assessments and evaluations of development.
Price: $150.00 per week during the Term, pursuant to weekly direct debit instalments in advance using PayAdvantage (or similar), commencing at the beginning of the Term. No instalment payable for any school holiday period during the 6-month Term, as subscription is paused.
Upfront refundable bond: $500.00 (refundable following payment of the entire Price). Maximum total cost $3,900.00.
12- MONTH PROFESSIONAL PACKAGE
Term: 12 months (52 weeks)
Inclusions:
- All Inclusions listed in the 6-Month Essentials Package.
PLUS:
- Performance and video analysis.
- One live game attended by one of the Supplier’s coaching staff.
- Written reference.
- 20% discount voucher which can be used to purchase any products from the Supplier’s online store, throughout the Term of this package.
Price: $130.00 per week during the Term, pursuant to weekly direct debit instalments in advance using PayAdvantage (or similar), commencing at the beginning of the Term. No instalment payable for any school holiday period during the 12-month Term, as subscription is paused.
Upfront refundable bond: $500.00 (refundable following payment of the entire Price). Maximum total cost $6,760.00
6 Provision of Services
(a) You appoint the Supplier to perform the Services for the benefit of the Participant in accordance with the relevant Subscription Training Package, and the Supplier accepts this appointment. The Supplier may subcontract the performance of the Services or any other performance of its obligations under this Agreement to a subcontractor in its sole discretion.
(b) No Services will be performed during school holiday periods. No weekly instalment of the Price is payable during these periods.
(c) You acknowledge and agree that the Supplier’s ability to perform the Services at any given time during the Term of a Subscription Training Package is reliant on a number of factors, including court and coach availability from time to time. The Supplier will use reasonable endeavors to perform the Services throughout the Term but cannot guarantee every Service will be available for the entirety of the Term. To the extent this has a material impact on your ability to obtain the benefit of the Services, the price payable under your Subscription Training Package during the relevant period will be reduced proportionately.
7 Supplier’s rights
The Supplier reserves the rights to:
(a) direct the Participant to not participate in an Activity or part of an Activity under the Subscription Training Package based on reasonable coaching and training requirements, including through the ordinary rotation and substitution of participants;
(b) restrict or amend the Participant’s participation in an Activity or part of any Activity under the Subscription Training Package where reasonably necessary to accommodate the age, skill level, ability, health or medical condition of the Participant; and
(c) suspend or terminate the Participant’s participation in an Activity where the Participant commits a breach of their obligations under this Agreement, the Policies or fails to follow the lawful and reasonable directions of the Supplier (including directions from the Supplier Personnel).
8 Participant’s obligations
The Participant:
(a) will comply with all Policies during the Activities, and all lawful and reasonable directions of the Supplier during the Activities;
(b) declares that they are medically and physically fit and able to participate in the Activities;
(c) will disclose any pre-existing medical or other condition, injury or concern that may affect the risk that either they or any other person will suffer injury, loss or damage during the course of the Activities and notify the Supplier of any injuries, illness or concerns that may arise during the Activities;
(d) will not engage in any reckless, negligent or foolish behaviour or any other behaviour that is likely to cause injury to them, any other participant or person; and
(e) will not consume any alcohol or mind-altering substance, or medication that may impact their judgement or physical capacity, before or at the time of engaging in the Activities.
9 Your obligations
You agree to:
(a) pay to the Supplier the Price for the relevant Subscription Training Package in equal monthly or weekly instalments throughout the term of the relevant Subscription Training Package in accordance with the relevant details set out in Part A, clause 2 and through the entry into, and maintenance of, a direct debit facility with PayAdvantage (or such other reputable third party direct debit service provider determined by the Supplier from time to time acting reasonably);
(b) will disclose any pre-existing medical or other condition, injury or concern that may affect the risk that either the Participant or any other person will suffer injury, loss or damage during the course of the Activities;
(c) if you are not the Participant, to make the Participant are informed and aware of this Agreement and all Policies, and ensure the Participant agrees to the covenants and obligations applying to them;
(d) comply with, and ensure that the Participant complies with, the Policies during the Activities;
(e) complete all forms when subscribing to a Subscription Training Package details honestly and accurately, including all details relating to the Participant; and
(f) notify the Participant of any relevant information relating to the relevant Subscription Training Package provided to you by the Supplier prior to the commencement of the Subscription Training Package.
10 Your warranties
While you will be bound by this Agreement, you also warrant and represent as follows:
(a) where the Participant is over the age of 18, and you are not the Participant, you have the relevant authority to subscribe to the Subscription Training Package on behalf of the Participant and enter into this Agreement for and on behalf of the Participant; and
(b) where the Participant is under the age of 18, and you are not the Participant, you have the relevant authority to subscribe to the Subscription Training Package on behalf of the Participant and enter into this Agreement for and on behalf of the Participant.
11 Medical assistance
(a) You and the Participant agree that if the Participant suffers any injury or illness, the Supplier and Supplier Personnel may provide first aid and/or medical treatment at their expense (including by calling an ambulance) and that you're and the Participant’s acceptance of these terms and conditions constitute your and the Participant’s consent to such first aid and/or medical treatment.
(b) Where you are the parent or guardian of the Participant, you agree that if the Participant suffers 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.
12 Cancellations
(a) You may cancel a Subscription Training Package for any reason upon the provision of at least 30 days’ notice in writing to the Supplier.
(b) Where you cancel a Subscription Training Package, you will be charged, and you agree to pay to the Supplier, a cancellation fee which is equal to one-third of the total Price of that Subscription Training Package which remains to be paid by you to the Supplier. For example, if you cancel a 6-Month Essentials Package (which has a total Price of $3,000.00) with such termination effective 4 months into its Term and after having paid $2,000.00 to the Supplier, you will be refunded the amount which is equal to 1/3 x $1,000.00 = $333.00. You acknowledge and agree this is a fair and reasonable pre-estimate of the Supplier’s loss which will be suffered due to any such cancellation.
(c) The Supplier may apply all or part of the upfront refundable bond to the amount owed by you under Part A, clause 12(b).
(d) The Supplier does not offer refunds in relation to the cancellation of a Subscription Training Package for change of mind or for any other reason.
(e) Should a Participant under a 6-Month Essentials Package suffer from a physical injury which substantially prohibits their participation in the physical training part of the Activities, you may, upon the provision of seven (7) days’ notice to the Supplier and provision of reasonable evidence confirming the injury (such as a medical certificate), suspend the payment of the instalments of the Price for a period of two (2) weeks on and from the end of the notice period.
(f) Should a Participant under a 12-Month Professional Package suffer from a physical injury which substantially prohibits their participation in the physical training part of the Activities, you may, upon seven (7) days’ notice to the Supplier and provision of reasonable evidence confirming the injury (such as a medical certificate), suspend the payment of the instalments of the Price for a period of four (4) weeks on and from the end of the notice period.
13 Events beyond the Supplier’s reasonable control
Subject to your rights, and the Participant’s rights, under the Victorian Consumer Law and/or the Australian Consumer Law, if the Supplier’s performance of Services under this Agreement is impacted by a Force Majeure Event, the Supplier will not be liable to you or the Participant for any failure or delay in performing any such impacted Services 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 relevant Activity.
14 Images of Participants
(a) Unless You or the Participant notifies the Supplier otherwise prior to the commencement of the Subscription Training Package, You and the Participant authorise the Supplier to take appropriate photographs and video footage of the Participant during the Activities which may be used by the Supplier solely for its marketing and advertising purposes. The Supplier does not have the right to identify any Participants by name without further consent.
(b) Where the Supplier is permitted to use images and video footage of the Participant as set out above, you and the Participant 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 the Participant.
15 Privacy
You and the Participant agree that the Supplier may collect the personal information supplied by you and the Participant subject to the provisions of the Supplier’s privacy policy published on the Pages.
16 Applicable law and severability
(a) This Agreement is 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 this Agreement.
(b) If any provision of this Agreement 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 this Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of this Agreement.
Part B –Risk and Liability
RISK WARNING
Participation in the Activities involves playing and practising basketball (a limited-contact sport), athletic activities and physical exertion. Therefore, the Participant is at risk of personal injury and death, including due to the act or omissions of other participants in the Activities. To the extent permitted by applicable law and subject to the remainder of this Part B, you and the Participant acknowledge and agree the Participant assumes these risks voluntarily, and these risks are the Participant’s own.
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-
• are rendered with due care and skill; and
• are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and
• 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
Where the Victorian Consumer Act applies to the Supplier’s performance of the Services, the Supplier will have no liability to you or the Participant 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 of omission.
EXCLUSION OF LIABILITY – AUSTRALIAN CONSUMER ACT
Where the Australian Consumer Act applies to the Supplier’s performance of the Services, the Supplier will have no liability to you or the Participant 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. The Supplier’s conduct is reckless conduct if the Supplier is aor should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person and engages in the conduct despite the risk and without adequate justification.
RELEASE IN FAVOUR OF SUPPLIER AND SUPPLIER PERSONNEL
Subject to your, and the Participant’s, rights in respect of the 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 Activities that you or the Participant may have, or may have had, but for this release, arising from or in connection with the Participant’s participation in the Activities(Claim) (including Claims relating to tort, contract or statute); 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 indemnify in trust) (the Indemnified Persons) 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 immediately above will not apply to the extent a Claim relates to the gross negligence of the Supplier or the Supplier Personnel.
Part C - Definitions
In this document, including in Part A (Terms and Conditions) and Part B (Risk and Liability), but excluding the section in Part B entitled “Warning under the Australian Consumer Law and Fair TradingAct”:
Activities means the Activities engaged in by the Participant pursuant to the Supplier’s performance of Services forming part of a Subscription Training Package.
Agreement means the agreement between you and the Supplier for the provision of the Services outlined in a Subscription Training Package to the Participant, as constituted by this document, including Part A (Terms and Conditions), Part B (Risk and Liability) and Part C (Definitions).
Australian Consumer Law means the Australian Consumer Lawas set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Consumer Guarantees mean the consumer guarantees contained in Subdivision B of Division 1 of Part 3-2 of the Victorian Consumer Law or the Australian Consumer Law, as is applicable.
Force Majeure Event means any act, event or cause, affecting the Supplier that is outside the Supplier’s reasonable control, including, but not limited to:
(a) 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;
(b) adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods;
(c) epidemics or pandemics (including COVID-19, along with any relevant laws, directions, health advice, quarantines and restrictions on movement or activity), quarantines, radiation and radioactive contamination; or
(d) boycotts, strikes and other labour difficulties, involving employees, contractors or agents of third parties.
Inclusion means a Service to be performed by the Supplier for the benefit of the relevant Participant as applicable under a Subscription Training Package.
Pages mean the Supplier’s website and social media content.
Participant means the person who will be receiving the benefit of the Services performed by the Supplier under the relevant Subscription Training Package. You may be the Participant or you may be someone entering into this Agreement as agent for, or on behalf of, the Participant. You may also be the parent or guardian of the Participant.
Policies mean the code of conduct and any other policies relating to the Services as published on the Pages or as otherwise notified to you from time to time.
Price means the price for the relevant Subscription Training Package payable by you to the Supplier, in consideration of the Supplier’s performance of the Services as outlined in the relevant Inclusions.
Program means any training or coaching program provided to you which falls outside the relevant Subscription Training Package and includes the School Holiday Basketball Camps and Dunk Man Jump Programs.
Program Terms and Conditions means the Supplier’s terms and conditions relating to Programs.
Services mean the basketball training and coaching services provided by the Supplier to the Participant in accordance with the Inclusions.
Subscription Training Package means an agreed set of basketball training and coaching Services to be provided by the Supplier to you over a set period of time, as outlined in the Inclusions. References to a Subscription Training Package will refer to either the 6-Month Essentials Package or the 12-Month Professional Package, as applicable.
Supplier means Tomorrow’s Stars Basketball Pty Ltd (ACN 670 007 904) (ABN 11 670 007 904).
Supplier Personnel means the Supplier and its employees, officers, contractors and agents.
Term means the stated duration or term of a Subscription Training Package.
Victorian Consumer Act means the Australian Consumer Law and Fair Trading Act 2012 (Vic).
Victorian Consumer Law means the Australian Consumer Law which applies as a law of Victoria pursuant to section 8 of the Victorian Consumer Act.
You or you means the person entering into this Agreement. You may be the Participant, or you may be someone entering into this Agreement as agent for, or on behalf of, the Participant. You may also be the parent or guardian of the Participant.
