Part A – Terms and Conditions
- Suspensions and cancellations by the Supplier (including due to COVID-19)
(a) If, after the relevant Booking Close Date, the Supplier determines, acting reasonably, that a Program cannot proceed or be completed (or is unlikely to be able to proceed or be completed) due to the impact(s) of COVID-19 or a Force Majeure Event on the conduct of the Program and/or one or more of the persons conducting or participating in the Program (including, in relation to COVID-19, relevant laws, directions, health advice, quarantines and restrictions on movement or activity), the Supplier may suspend or cancel the Program or the relevant portion of the Program (the Suspended Program).
(b) The Supplier will promptly notify you using one or more of your supplied contact details following its decision to suspend or cancel a Program. The Supplier will use its reasonable endeavours to reschedule the Suspended Program as soon as practicable following the date(s) the relevant Program commenced or was scheduled to commence (the Suspended Program Start Date).
(c) If the Supplier is unable to reschedule the Suspended Program to occur within 12 months following the Suspended Program Start Date, at the original location (or at a new location within 20 kilometres from the original location), or you and/or the Participant are unable to attend the rescheduled Program for any reason, the Supplier will, at your election:
- provide you with a credit in the amount of the Price paid by you to the Supplier, which may be used to purchase any product or service from the Supplier; or
- refund you the amount which is 50% of the Price paid by you to the Supplier in relation to the Suspended Program.
(d) You acknowledge and agree the Supplier will not issue a refund in relation to any Suspended Program, other than in accordance with the above clause 1(c) of Part A.
(e) Unused credit or any unused portion of credit will expire on the date which is 3 years following its issue. Credit is transferrable.
(f) This clause 1 of Part A is subject to your, and the Participant’s, rights under the Victorian Consumer Law and/or the Australian Consumer Law (where applicable).
- Provision of Services
(a) You appoint the Supplier to perform the Services in accordance with the relevant Program Details, 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) The Supplier will use its reasonable endeavours to ensure the Services are rendered in accordance with the relevant Program Details. The Supplier reserves the right to make reasonable changes to the relevant Program Details prior to the commencement of, or during, the Program, where it is reasonably necessary to do so. The Supplier will endeavour to provide you with as much notice as practicable in relation to any such changes.
- 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 Program 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 Program 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 the Program 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).
- Participant’s obligations
(a) will comply with all Policies during the Program, and all lawful and reasonable directions of the Supplier during the Program;
(b) declares that they are medically and physically fit and able to participate in the Program;
(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 Program and notify the Supplier of any injuries, illness or concerns that may arise during the Program;
(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 Program.
- Your obligations
You agree to:
(a) pay to the Supplier the Price for the Services at the time of the Booking (or such other due date as notified by the Supplier);
(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 Program;
(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 Program;
(e) complete the Booking details honestly and accurately, including all details relating to the Participant; and
(f) notify the Participant of any relevant information relating to the Program provided to you by the Supplier prior to the commencement of the Program, including any changes to dates, times and venues.
- Your warranties
You warrant and represent as follows:
(a) where you are not the Participant, you have the relevant authority to make the Booking on behalf of the Participant and, where the Participant is aged 18 or over, enter into this Agreement for and on behalf of the Participant; and
(b) where the Participant is under the age of 18, you are the parent or guardian of the Participant.
- Medical assistance
(a) The Participant agrees that if they suffer 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 the Participant’s acceptance of these terms and conditions constitute their 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.
- Cancellations by you
(a) The Supplier does not offer refunds in relation to the cancellation of all or part of a Booking for change of mind.
(b) In relation to School Holiday Basketball Camps, if you cancel a Booking for any reason other than where you are entitled to do so due to the Supplier’s non-compliance with a Consumer Guarantee, a credit with the Supplier will be provided to you as follows:
- Cancellation more than 2 weeks prior to the Booking Close Date: Credit equal to 100% of the Price.
- Cancellation less than 2 weeks prior to the Booking Close Date: Credit equal to 50% of the Price.
- Cancellation after the Booking Close Date: No credit (0%).
(c) In relation to Private Basketball Training and the Dunk Man Program, if you cancel a Booking for any reason other than where you are entitled to do so due to the Supplier’s non-compliance with a Consumer Guarantee, a credit will be provided to you as follows:
- Cancellation more than 48 hours prior to the first day of the Program: Credit equal to 100% of the Price.
- Cancelation between 24 and 48 hours prior to the first day of the Program: Credit equal to 50% of the Price.
- Cancellation on or after the first day of the Program: No credit (0%).
(d) Unused credit or any unused portion of credit will expire on the date which is 3 years following its issue. Credit is transferable.
- Events beyond the Supplier’s reasonable control
Subject to your, and the Participant’s, rights under the Victorian Consumer Law and/or the Australian Consumer Law (where applicable), and subject to clause 1 of Part A, if the Supplier’s performance of its obligations 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 obligations to the extent the failure or delay is caused by the Force Majeure Event. The Supplier will use its reasonable endeavours 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 Program.
- Images of Participants
(a) Unless You or the Participant notifies the Supplier otherwise prior to the commencement of the Program, You and the Participant authorise the Supplier and Supplier Personnel to take appropriate photographs and video footage of the Participant during the Program 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 Participants 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 Participants.
- 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
Participation in the Program involves basketball playing and training (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 Program. 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 a or 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 AND INDEMNITY IN FAVOUR OF SUPPLIER AND SUPPLIER PERSONNEL
Subject to your, and the Participant’s, rights in respect of 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 Program 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 Program (a 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 Trading Act”:
Agreement means the agreement between you and the Supplier for the provision of the Services, as constituted by this document, including Part A (Terms and Conditions), Part B (Risk and Liability), Part C (Definitions), the Program Details and any other terms and conditions relating to the Services notified by the Supplier to you before the Booking.
Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Booking means the registration, booking or reservation of a Participant in a Program through the Pages or any other means (including through telephone, text message or email).
Booking Close Date means the last day on which a Booking can be made in relation to the relevant Program, as set by the Supplier, as at the date you make the relevant Booking.
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).
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) 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 (including COVID-19), pandemics (including COVID-19), quarantines, radiation and radioactive contamination; or
(d) boycotts, strikes and other labour difficulties, involving employees, contractors or agents of third parties.
Pages mean the Supplier’s website and social media content.
Participant means the person who will be participating in the Program pursuant to the Booking effected by you, which may be you and/or one or more persons nominated by you.
Policies mean the Code of Conduct, Covid-19 policy and any other policies relating to the Services as published on the Pages or as otherwise notified to you prior to the commencement of the Program.
Price means the total price for the Services payable by you, pursuant to the particulars of the Booking, the Program and the Program Details.
Program means the training or coaching program provided to you as set out in the Program Details, and includes the School Holiday Basketball Camps, Private Basketball Training and Dunk Man Jump programs.
Program Details mean the details and particulars of the Services provided by the Supplier, as notified or communicated to you, including those details published on the Pages. The Program Details include the fees, date, time and content of the relevant Program.
Services mean the training and coaching services provided by the Supplier and particularised in the Program Details.
Supplier means Brett Rainbow trading as Tomorrow’s Stars Basketball (ABN 46 732 461 162).
Supplier Personnel means the Supplier and its employees, contractors and agents.
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.