“Agreement”

shall mean these Terms and Conditions together with the Application Form and Information;

“Application Form”

means the Application Form the Customer fills out to participate in the Services, whether this is done in hardcopy or through an online form;

“Customer”

means any individual named in the Application Form and/or paperwork who accepts these Terms and Conditions and is attending the Service;

“GST”

means Goods and Services Tax payable under the GST Act;

“GST Act”

means A New Tax System (Goods and Services) Tax Act 1999 (Cth);

“Intellectual Property”

means the programs used in the provision of the Service, any brand names, logos, data, text, photographs, image, graphics, mottos and slogans and any other materials considered to be the Intellectual Property of the Service Provider;

“Service”

means the organisation of the fitness trip to an overseas location, including but not limited to travel to the overseas location, daily fitness sessions and other fitness events and participation in other activities to be conducted by third parties;“GST”

means Goods and Services Tax payable under the GST Act;

“Service Provider”

means The Trustee for RCKC Family Trust trading as Athletica (ABN 85 601 135 707); and

“Third Party Provider”

means a third party who the Service Provider organises a Service and/or activity through for the provision of the Service.

1. Acceptance

1.1. The following shall be deemed acceptance by the Customer of the Agreement:

1.1.1. the Customer completing an Application Form with the Customer’s signature, or acceptance in the case of an online form;

1.1.2. a written acceptance, whether by post, email correspondence, fax or other means which states that the Customer accepts the Application Form;

1.1.3. payment of the deposit specified in the Application Form; or

1.1.4. the Customer instructing the Service Provider to commence booking the Service for them.

1.2. If the Customer is under the age of eighteen (18) then a parent or guardian is required to enter into the Agreement on their behalf.

2. Price

2.1. The cost payable by the Customer to the Service Provider for the Service is the total cost of services as specified in the Application Form.

2.2. All prices are subject to alteration at any time by airlines or Third Party Providers due to currency fluctuations and any other reason. No surcharges in respect of currency deterioration will be made once full payment has been received by the Service Provider.

2.3. Prices are subject to booking at least ninety (90) days in advance of the departure date of the Service.

3. Deposit and payment

3.1. A deposit of $800.00 per person, or any other amount specified in writing by the Service Provider, is required immediately upon submission of the Application Form by the Customer. This deposit is non-refundable unless otherwise specified in this Agreement.

4. Payment

4.1. The Customer is required to make payment/s of the total cost payable to the Service Provider within the period and in the amounts and specified in the Application Form or in writing from the Service Provider.

4.2. Final payment of the amount outstanding is to be made by the date as outlined in the Application Form.

4.3. If the total cost payable is not received one (1) clear month before the date of the Service then the Service Provider can cancel and/or refuse (at the Service Provider’s sole discretion) to provide the Service to the Customer.

5. Exclusions

5.1. The following costs and expenses are payable by the Customer and are not included in the total cost listed on the Application Form:

5.1.1. Any visas required to enter the overseas location where the Service is being held;

5.1.2. The cost of passport applications or passport renewals;

5.1.3. Laundry costs;

5.1.4. Telephone calls;

5.1.5. Use of Wi-Fi at a hotel where Wi-Fi may not be included

or the Customer exceeds any Wi-Fi limitations;

5.1.6. Entrance fees and tours not included in the Service;

5.1.7. Any tips;

5.1.8. Any vaccinations;

5.1.9. The cost of travel insurance;

5.1.10. The cost of any meals, drinks and activities outside what is stated in writing prior to departure as being provided for by the Service Provider;

5.1.11. The cost of any transport that is not included and specifically mentioned in the Application Form;

5.1.12. Excess luggage costs;

5.1.13. The cost of changing incorrect names on airline tickets if the wrong details were provided to the Service Provider; and

5.1.14. The cost of any re-booking fee charges due to missed flights or requested changes after travel arrangements have been booked.

6. Default in payment

6.1. If the Customer fails to make payments for the Service when payment falls due, then the Service Provider may, without prejudice to any other right or remedy of the Service Provider:

6.1.1. Charge the Customer interest at a rate of 2% per month on a cumulative basis calculated on a day to day basis on any monies owed to the Service Provider. The parties agree that such amounts are not a penalty but a true measure of the damages incurred by the Service Provider; and

6.1.2. Require the Customer to pay the Service Provider for any costs, expenses or losses incurred by the Service Provider as a result of the Customer’s failure to pay the Service Provider including but not limited to debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.

7. Payment plans

7.1. The Customer and the Service Provider may negotiate a payment plan for the Customer to enter into. The Service Provider, in its sole discretion, will ultimately agree as to whether or not a payment plan is approved for the Customer.

7.2. The details of this payment plan will be provided to the Customer in writing from the Service Provider.

7.3. The deposit as outlined in Clause 3.1 is required before the Service Provider will consider setting up a payment plan for the Customer.

7.4. If the Customer misses any payment under the payment plan then the remedies as outlined in clause 6 will apply.

8. Variations

8.1. The Service Provider will be entitled to vary any Application Form provided to the Customer if the Customer provides incomplete or inaccurate information. The Customer must provide to the Service Provider any information reasonably requested by the Service Provider in a timely manner. Failure to provide such information will allow the Service Provider to cancel the Services under clause 9 of these Terms and Conditions.

9. Cancellation of services

9.1. The Service Provider:

9.1.1. May, in its absolute discretion, cancel its obligation to provide the Service by giving either verbal or written notice to the Customer, at any time before the deposit is paid by the Customer pursuant to clause 3.1 or at any other time for a breach of this Agreement and the deposit and any other monies paid by the Customer to the Service Provider up to the time of cancellation will not be refundable to the Customer; and

9.1.2. May if it determines, in its absolute discretion, that the Customers behavior at any time during provision of the Service is inappropriate ask them to leave the accommodation or activity provided as part of the Service, in which case the Customer will be required to find and pay for their own accommodation and transport and way home and no longer participate in any of the remaining Services; and

9.1.3. Shall not be liable to the Customer for any loss or damage which may arise from the cancellation by the Service Provider.

9.2. The Customer:

9.2.1. Acknowledges and agrees that there are no refunds or cancellations after the Application Form is submitted and a deposit paid. Where the Customer cancels the Application Form after the Application Form is accepted or the deposit is paid, the Customer forfeits their deposit and the Customer must reimburse the Service Provider for all costs, expenses and losses incurred by the Service Provider as a result of the cancellation; and

9.2.2. Will make payment for such cancellation costs incurred under clause 9.2.1 herein within seven (7) days from receipt of an invoice from the Service Provider outlining such costs, expenses and losses and outstanding fees under the Application Form.

9.3. Third Party Providers may cancel a service or activity that the Service Provider has organised for the Customer to attend from time to time. If a Third Party Provider cancels or alters a service that the Service Provider organised on behalf of the Customer then the Service Provider is not liable for the refund of any monies paid to the Third Party Provider and any refund is at the sole discretion of the Third Party Provider.

10. Holiday details and conditions

10.1. The information provided by the Service Provider is correct to the best of the Service Provider’s knowledge, at the time of printing but the Service Provider cannot, and does not, guarantee that any item or amenity included in the Service will be available.

10.2. The Service Provider will make every effort, at their absolute discretion, to select accommodation, sightseeing tours, experiences, treatments, and transportation to provide the Customer with best value for their money.

10.3. If circumstances beyond the Service Provider’s control occurs then the Service Provider reserves their right to vary any part of the itinerary and cancel or substitute any accommodation, sightseeing tours, experiences, treatment or transportation . The Service Provider will not be responsible or liable for any changes to the itinerary.

10.4. Any Customer with special dietary requirements must notify the Service Provider at the time of signing and returning the Application Form. The Service Provider will make every effort to ensure that any special dietary requirements of a Customer are supplied at any venue but cannot, and does not, guarantee that special dietary requirements will be available at the venue. The Service Provider does not assume responsibility or liability if Customer’s special meal requirements are not fulfilled.

10.5. The Customer is to advise the Service Provider in advance of any physical, medical or other special needs that require specialist transportation or accommodation. All Customers are to ensure that they are medically and physically fit for travel.

10.6. The Service Provider does not employ medical personnel and all necessary medical attention will be provided by a local facility at the Customer’s expense. The Service Provider is not liable for any losses or costs incurred as a result of medical services obtained during the provision of the Service or for the quality of the treatment or care received.

10.7. The Customer is responsible for any costs incurred as a result of damage or excess cleaning fees related to the accommodation in which the Customer stays whilst in the overseas location where the Service is being held.

10.8. The Customer is responsible to ensure that they follow all laws, rules, customs and religious beliefs of any venues that they may attend and the Service Provider is not responsible for any losses or costs which may be incurred as a result of the Customer not adhering to any of these.

10.9. The Customer must provide the Service Provider with a copy of their valid passport at the time of completing the Application Form.

11. Transfer of entitlement of service to a nominated third party

11.1. If the Customer is no longer able to attend the Service for any reason and they have paid for the Service in full then the Customer can transfer their entitlement to participate in the Service to a third party and this must be recorded in writing between the Customer and the Service Provider with the Customer giving written consent for the transfer to occur.

11.2. If the Customer transfers their entitlement to participate in the Service to a third party the following fees will apply on top of the price for the Service:

11.2.1.The cost of changing the name of the Customer to the nominated third party for any and all flights;

11.2.2.The cost of changing the name of the Customer to the nominated third party on any documents which incurs a fee for a name change; and

11.2.3.The Service Provider, in its sole discretion, may charge an administration fee for facilitating in transferring the entitlement to the nominated third party.

12. Travel insurance

12.1. It is a compulsory requirement that all Customers take out comprehensive travel insurance cover for cancellation, personal injury, death, medical expenses, repatriation expenses and evacuation expenses before the date of the Service.

12.2. A copy of this insurance policy must be provided to the Service Provider. It is the Customers obligation and not the Service Providers to ensure that this is undertaken.

13. Health and fitness

13.1. The Customer must:

13.1.1. Have a moderate level of fitness and be able to participate in the physical activities required during participation in the Service;

13.1.2. Must advise the Service Provider of any pre-existing medical conditions which may impact on their ability to participate in the Service;

13.1.3. Complete a medical questionnaire provided to the Customer by the Service Provider before the date of the Service; and

13.1.4. Be responsible for bringing all medication required on the trip.

13.2. If the Customer does not disclose any medical information to the Service Provider as required in clause 13.1.2 and the Service Provider becomes aware of this then the Service Provider is able to cancel the Customer’s attendance at the Service in accordance with the conditions outlined in clause 9.

14. Extension of time

14.1. The Service Provider shall be entitled to an extension of time to provide the Service if the provision of the Service is delayed through no fault of its own.

15. Service provider liability

15.1. The Service Provider shall not be liable for any damage to Services or any venues caused by the Customer or third parties and shall not be required to indemnify any party for any damage caused by others. The Customer hereby indemnifies the Service Provider for any and all loss and damage caused by it/them to any third party or any venue.

15.2. The Service Provider will not be liable for any delays caused by others.

15.3. Subject to the Australian Consumer Law, the Service Provider will not be liable for any consequential or indirect losses.

16. Instructions and communications

16.1. The Service Provider shall only receive instructions from the Customer who has signed this Agreement. If the Customer authorises any other agent to give the Service Provider instructions in lieu of or in addition to the person submitting the Application Form, then the Customer must inform the Service Provider of that persons details in writing.

16.2. The Service Provider shall not be liable in any way for any losses incurred by the Customer in accepting instructions from the persons contemplated by this clause.

16.3. The Service Provider may elect to communicate by electronic mail or such other form as is convenient, and does not warrant that any such communication will be free from defect, virus or shall otherwise be secure. The Customer hereby acknowledges and agrees to accept such communications and releases the Service Provider from all liability in respect of any losses that may be incurred by the Customer from such communications.

17. Privacy

17.1. The Service Provider will collect and deal with the Customers personal information (including name, address, telephone contact, or personal details) only in accordance with the Privacy Act 1988 (Cth).

17.2. The Customer agrees that the Service Provider may disclose personal information to its related companies and to organisations which provide services to or which assist the Service Provider in providing services to its customers.

18. Governing law

18.1. This Agreement is governed by the laws of South Australia and the parties submit to the exclusive jurisdiction of the courts of South Australia.

19. Force majeure

19.1. The Service Provider shall not be held liable for failure to comply with this Agreement to the extent that the Service Providers performance is prevented or delayed because of circumstances outside of the Service Providers control.

19.2. This includes but is not limited to unforeseen events such as strikes, natural disasters, breakdown of machinery, adverse weather conditions, or action of government or port authority or any act of God.

20. Dispute resolution

20.1. Any disputes between parties arising from the performance of provisions of the Agreement and/or the Application Form must be attempted to be settled between the parties by an authorized representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such a meeting is to take place within the state of South Australia at a place nominated by the Service Provider.

20.2. If the meeting referred to at clause 20.1 above does not result in settlement of the dispute between the Service Provider and the Customer, the dispute may then be referred to mediation, if agreed by both parties. The Mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the Law Society of South Australia. The costs of any mediation are to be borne equally between the Service Provider and the Customer.

20.3. If the dispute cannot be settled through mediation, or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.

20.4. During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Agreement which are not under dispute.

21. Intellectual property

21.1. The Customer acknowledges that the Intellectual Property of the Service Provider that is used in the provision of the Services and in materials provided by the Service Provider is the absolute property of the Service Provider and are at all times owned, controlled by or licensed to the Service Provider and is protected by copyright, trademarks and intellectual property laws in Australia.

22. GST and other taxes

22.1. The Customer must pay to the Service Provider Goods and Service Tax on any Product and Services as is required by the Australian Taxation Office as well as any other taxes, duties, fees and levies for any Product and Services that may be applicable.

22.2. The amount the Customer owes the Service Provider will be stated in the Service Providers Application Form and subsequent Invoice(s) to the Customer.

23. LIMITATION OF LIABILITY

23.1. The Agreement does not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which cannot be excluded, restricted or modified.

23.2. To the extent permitted by law, all terms, conditions, warranties and representations, expressed or implied by statute or otherwise, are hereby expressly excluded.

23.3. To the extent permitted by law, the Service Provider shall not be liable to the Customer for any injury, harm, loss, damage, cost, expense or other claim including economic loss or loss of profits however arising from the supply of the Service or arising from any breach, default or negligence of the Service Provider in connection with the provision of the Service.

23.4. If the Customer is entitled to the benefit of any implied terms which cannot be excluded, the Supplier’s liability shall be limited, at its option, in the case of the provision of the Service to:

23.4.1.The replacement or supply of an equivalent or similar service; and

23.4.2.The costs of redoing the Service.

24. Severance

24.1. If any provision of this Agreement does not comply with any law then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all then it must be treated as severable from the rest of the Agreement.

© Clarke Hemmerling Lawyers 2017