BETWEEN The Smash Room of Unit 1, 60 Keilor Park Drive, Keilor East, VIC 3033 (The Company)
AND All customers who use or intend to use the Services of The Company (The User)
A. The Company provides to the User the use of the Smash Room, website and its associated Services.
B. The User agrees to be bound by the Terms of Service as set out in the agreement and the Rules as set out in the Schedule 3 while using the Services provided by the Company.
C. Recreational Activities, including use of the Smash Room, involves a significant risk of physical harm or personal injury including but not limited to part or permanent disability or death to a User or Third Party.
D. By entering and participation of the Smash Room or Premises by a User or Third Party it agrees to waive its right to sue the Company now or in the future.
INTERPRETATION AND DEFINITIONS
This agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of the state. In the interpretation and definition of this agreement the following means:
(a) Agreement means the Terms of Service entered between the Company and the User;
(b) Booking means a booking to use the Smash Room.
(c) Booking Fee means the Fee for a Booking.
(d) Smash Room means the Smash Room operated by the company in which Users can break Things.
(e) Company means The Smash Room.
(f) Content means any written, video, audio or other material provided to a User, in which the Company holds Intellectual Property Rights.
(g) Fee means any fee payable by a User for access to or use of a Service.
(h) Implement means any object used to break Things, including without limitation, a baseball bat.
(j) Representative means an employee, instructor, or other representative of the Company.
(k) Services means access information, tools and features available via the Company’s website, use of the Smash Room and any other services provided by the Company.
(l) Site means the premises which the Services are provided to the User.
(m) Suitable attire means clothing attire that must cover the Users full body including long sleeved top, full length pants, socks covering ankles.
(n) Safety clothing and equipment means:
(i) Coveralls that cover the arms and up to the neck;
(ii) Face shield;
(iv) Or such other safety equipment that the Company requires.
(o) Things means any objects or materials permitted by the Company to be broken in the Smash Room.
(p) Third Party means any person that is not a User.
(q) User means any or other user of a Service.
APPLICATION OF THIS AGREEMENT
• This agreement applies to the use of and access to the Services and the Site.
• Where the User does not accept the terms and conditions of this agreement, the Company reserve its rights to immediately terminate the User’s use of the Services.
• The agreement may be updated by the Company at its absolute sole discretion from time to time and such updates shall come into effect for use of the Services the next time the User uses a Service after the User receives written notice of the updates.
• The User acknowledges that it has read this agreement and understands the terms contained within this agreement.
• The User acknowledges that by using the Site or accessing the Services, the User has provided consent that it accepts and agrees to the terms of this agreement.
• By accepting the terms and conditions of the Agreement, the User is granted a limited, nonexclusive, and revocable licence to access and use the Services for the duration of this Agreement, in accordance with the terms and conditions of the Agreement. The Company may revoke the Licence in its absolute discretion.
• The Smash Room may use any form of media recorded or captured during the visit, be it photo or video, and may be used for all purposes that The Smash Room deems appropriate in its sole and absolute discretion.
FEES AND BOOKINGS
• The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
• The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
• The Company shall maintain all Fees for the terms of the licence paid for by the User.
• The Company may revoke or suspend the User’s licence to access Services for unpaid Fees without liability.
• Where the Company:
• Is required to perform any services for the User outside of what is set out in the Agreement or otherwise in writing; and
• Is subject to delays caused by changes or complexities outside of what is set out in the Agreement or otherwise in writing; and
• Is subject to delays caused by changes or complexities outside of its control and not caused by its breach of the Agreement; then
• The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.
• No refunds of Fees are offered other than at the sole discretion of the Company.
• The Company shall issue the User a Tax Invoice for all Fees for which GST applies. Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 3 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
• Overdue Tax Invoices shall accrue interest at the maximum rate of penalty interest prescribed under law.
• By accepting the terms of this Agreement, the User agrees that the Company shall provide access to the Services to the best of its abilities, however access to the Services may be prevented by issues outside of its control the Company accepts no responsibility for ongoing access to the Services.
• The Company has moral and registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
• The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Services.
• The User agrees and accepts that the Website is the Intellectual Property of the Company and the User further warrants that by using the Website the User will not: Copy the Site or the services that it provides for the User’s own commercial purposes and directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the website or any documentation associated with it.
LIABLILITY AND INDEMNITY
• The User agrees that it uses the Site and Services at its own risk and the Company does not have to provide the User with access to the Site and use of the Services until the User has read, understood, and signed the Waiver, which is found at the Schedule.
• The User acknowledges that the Company does not provide Things for use anywhere else, other that the Smash Room.
• The User acknowledges that it is responsible for its own personal properties and the Company is not responsible for same.
• The User agrees that it has had reasonable opportunity to obtain legal advice on the Agreement.
• The User agrees to pay the costs of and authorises the Company to take all steps it considers necessary to protect its welfare in the event of personal injury, including the administration of any emergency medical treatment and ambulance transportation.
• The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
• The User agrees to indemnify the Company for any loss, damage, costs or expenses that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Services, including any breach by the User of these Terms.
• Under Australian Consumer Law, several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the Company is required to ensure that the Services it supplies to you:
• Under section 22 of the Australian Consumer Law & Fair-Trading Act 2012, the Company is entitled to ask you to agree that these statutory guarantees do not apply to you. If you accept these terms and conditions, you will be agreeing that your rights to sue the Company under the Australian Consumer Law & 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 agreement.
• The change to your rights, as set out in this agreement, 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 & Fair-Trading Act 2012 and section 22 (3)(b) of the Australian Consumer Law & Fair-Trading Act 2012.
• The parties certify that they have the authority and legal capacity to enter into this deed which they have considered in detail, and the consequences of which they understand, and which they have done freely, having sought such legal and other advice as they deem prudent and necessary.
Where a party is in material breach of the Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 3 business days after the date of the notice.
• All disputes shall be handled in accordance with the Company’s dispute resolution policy.
• Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
• Negotiation. If there is a dispute between the parties relating to or arising out of the Agreement, then within 5 business days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
• Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within 5 business days of notification of the dispute, the parties must agree to submit the dispute to mediation, administrated by lawyers engaged in alternative dispute resolution. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
• The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
• The User can direct notices, enquiries, complains and so forth to the Company as set out in the Agreement.
• The Company will notify the User of a change of details from time to time.
• A consent, notice or communication under the Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
• Notices must be sent to the parties’ most recent known contact details.
• The User may not assign or otherwise create an interest in the Agreement.
• The Company may assign or otherwise create an interest in its rights under the Agreement by giving written notice to the User.
SCHEDULE – WAIVER FORM
In consideration of my being allowed to use the services, equipment, and facilities of the Company, I hereby and acknowledge and agree to the following terms and conditions:
ASSUMPTION OF RISK
I hereby acknowledge, accept, and agree that the use of or participation in the Company’s related activities, and the use of Company’s services, equipment, and facilities are inherently dangerous. Participation in the Company’s services and related activities may place unusual stresses on the body and is not recommended for persons suffering from asthma, epilepsy, cardio disorders, respiratory disorders, hypertension, skeletal, joint or ligament problems or conditions, and certain mental illnesses.
Women who are pregnant or suspect they are pregnant and persons who have consumed alcohol or are otherwise intoxicated are not recommended to engage in the Company services. I have been advised to consult with my medical practitioner if I have any concern about my medical condition or fitness to engage in the Company’s services.
I have received full information regarding The Company’s services, equipment, and facilities and have had the opportunity to ask any questions that I had regarding the same. I have full knowledge of the nature and extent of all the inherent risks associated with the Company and the services, equipment, and facilities used in the Company and related activities at The Company, which may include but are not limited to:
• Any and all manner of injury, including without limitation the possibility of serious injury or death, resulting from any of the services, equipment, and facilities at the Company’s Site, including without limitation, slipping or tripping on debris and hitting the floor, equipment, weapons, people or debris, whether permanently or temporarily in place, failure to wear protective gear, flying debris or any other consequence whatsoever of utilizing The Company’s services, equipment, and facilities;
• Injuries resulting from the actions or omissions of others, including but not limited to slips, trips and falls of other participants and flying debris;
• Cuts and abrasions resulting from skin contact with damaged items, debris, or any other surface, person, or equipment;
• Injuries resulting from shock, stress or another injury;
• The aggravation or worsening of any existing medical condition;
• Failure or misuse of safety gear, weapons, or any other items or equipment;
• Failure to follow the Company’s or its Representative’s instructions or failure to ask for information or assistance;
• Any injury that may occur while moving on or about the premises for any reason, including but not limited to slips, trips and falls, and any and all inherent risks of the use of or participation in the Company, and the services, equipment and facilities used in the Company’s Site and related activities at Site.
I further acknowledge that the above list is not inclusive of all possible inherent risks associated with the use of the Company’s services, equipment, and facilities, and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release, and Indemnification.
In consideration of my use of The Company’s services, equipment, and facilities, and/or participation in any program, competition, special event, group or party offered by or held at the Company, I hereby release and discharge the Company, as well as its members, managers, officers, directors, owners, employees, agents and contractors, from any and all liabilities, suits, claims, causes of action, demands, damages, losses or costs of any nature whatsoever incurred by me or that are in any way related to or arising out of the use or intended use of the Company’s services, equipment, and facilities, whether supervised or not, including, without limitation, all claims for property damage, personal injuries or wrongful, whether or not there are any allegations or charges of negligent acts or omissions on the part of any other parties, including the Company (collectively, the “Claims”).
I hereby agree to indemnify the Company, as well as its members, managers, officers, directors, owners, employees, agents and contractors, from any and all liabilities, suits, claims, causes of action, demands, damages, losses or costs of any nature whatsoever arising out of, or in any way relating to, my use of or movement in or throughout the Company’s services, equipment, and facilities, whether or not there are any allegations or charges of negligent acts or omissions on the part of any other parties, including the Company.
I understand and agree that the Company and its personnel or staff reserves the right to deny access to its facilities to any individual, permanently or for a specified period of time, for any breach of the Company’s policies, rules and regulations, for any conduct that is viewed as unsafe or inappropriate, or for any other reason whatsoever, whether disclosed or not.
While using The Company’s services, equipment, and facilities, I consent to the Company capturing any form of media containing my image, be it photo or video, and agree that any such media may be used for all purposes that the Company deems appropriate in its sole and absolute discretion. The Company may add my email address to their mailing list for the Company updates and promotions.
This agreement shall be effective and binding upon my heirs, next of kin, executors, administrators and assigns, in the event of my death or incapacity. By signing this agreement, I waive the right to bring a court action to recover damages or obtain any other remedy for any injury to myself or death, or any damages to my property, however caused, arising out of my use of or movement in or throughout The Company’s services, equipment, and facilities, now or any time in the future, whether or not there are any allegations or charges of negligent acts or omissions on the part of any other parties, including The Company. I agree to pay for any and all reasonable attorneys’ fees and expenses incurred by The Company as a result of any claims made by me or on my behalf in contravention of this agreement.
I am at least 18 years of age and legally competent to sign this agreement, or I am at least 13 years of age and my legal guardian or parent is competent to sign this agreement. This Assumption of Risk, Release and Indemnification shall be effective and binding upon me and upon my assigns, heirs, representatives, executors and administrators. If I am under the age of 18, this release must also be signed and filled out below by my parent or guardian.
My participation in this activity is purely voluntary, and I elect to participate in spite of the risks described herein. I certify that I have adequate insurance to cover any injury or damage I may cause or suffer while participating, or I will otherwise agree to bear the costs of such injury or damage. I further certify that I have no medical or physical conditions which interfere with my ability to participate safely in the use of the Company’s services, equipment, and facilities, or else I am willing to assume and bear the costs of all risks that may be created, directly or indirectly, by any such condition.
I agree that the validity and enforceability of this release of liability and assumption of risk will be governed by the laws of the State of Victoria, without regard to its conflict of law rules, and venue for any proceedings regarding this agreement shall be in the state courts located in Victoria. I agree that if any portion of this agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect.
I have had sufficient opportunity to read this entire document, as well as the opportunity to ask questions about this document if I have any. By signing this agreement, I acknowledge that if anyone is hurt or property is damaged while I am on the premises, I may be found by a court of law to have waived my right to maintain a lawsuit against the Company’s, as well as its members, managers, officers, directors, owners, employees, agents, and contractors, on the basis of any claim from which I have released them herein.
Y O U R C O N S E N T
C O L L E C T I O N O F I N F O R M A T I O N
Information is collected from you primarily to make it easier and more rewarding for you to use our website and services. Depending on the service you are accessing, you could be asked to provide information such as your name, email address or information about what you like and do not like. It is entirely your choice whether to respond to these questions or not.
The second type of information that the Company collects is personal information. The Company will collect personal information that lets us know the specifics of who you are such as your name, email address, or postal address, when you provide it to us. With this information, The Company can provide a variety of personalised and enhanced services that are not available to anonymous users. We hope that you will find it beneficial to provide individually identifiable information about yourself to us because it will make our website and its services more relevant to you.
Sometimes, we may specifically ask for personal information about you when you sign up to use a service. Certain information may be required, such as your name, age, internet address or screen name, billing address, type of computer, credit card number, in order to provide that service or product to you. This information may also be used to inform you of additional products and services which may interest you. You can choose not to receive such information when you are undertaking product or service registration on our website or via opt out’ from promotional emails. We may also ask about your interests, but it is your choice whether to respond.
How much of your personal information that you choose to disclose to The Company is completely up to you. The only way we know something about you personally is if you provide it to us, for example when you enter one of the competitions on our website or if you purchase something from us.
U S E O F A N O N Y M O U S I N F O R M A T I O N
The Company automatically gathers anonymous information to monitor the use of our website like the numbers and frequency of visitors. For example, the following information may be logged for statistical purposes, your internet protocol address, the date and time of your visit to our site, the pages that you have accessed, and the documents downloaded, and the type of browser you were using.
Tracking technologies such as cookies may be used on our website to recognise your browser each time you visit our site and to track the pages your visit. Cookies are pieces of information that a website transfers to a computer’s hard disk for record keeping purposes. Most web browsers are set to accept tracking technologies such as cookies. These tracking technologies do not personally identify you. If you do not wish to receive any cookies, you may set your browser to refuse them. However, your use of our website may be affected.
We only use such data in the aggregate. This collective data helps us determine how much our visitors use parts of the site, so we can make improvements and offer relevant information and services to as many users as possible. We may publish or provide this aggregate data to other people.
U S E O F P E R S O N A L I N F O R M A T I O N
The Company will use the personal information you have chosen to provide us for the purpose for which you provided it. The Company will not use it for any other purpose without your consent. We might on occasions, use this information to notify you of any important changes to our site or any special promotions that may be of interest to you. On each email or communication that we send you, we will include simple instructions on how you can immediately unsubscribe from our mailing list. You can opt out from receiving such material at any time by emailing our privacy manager and asking to be removed from the mailing list.
Any information we may collect from you will be treated with strict confidentiality. The National Privacy Principles, the Privacy Act and general law place strict requirements on us to treat certain information collected as confidential.
D I S C L O S U R E
There will be occasions where it will be necessary for The Company to disclose your personal information to third parties. The Company may be required to disclose your personal information to third parties to provide the products or services you have requested, for example, if you purchase products online, The Company will need to disclose your personal information to third parties in order to bill and deliver your products. However, the disclosure will only be made where it is necessary to fulfill the purpose for which you disclosed your personal information. Otherwise than stated above, we do not disclose personal information that you may give us, such as your name, address, email address or telephone number, to any organisation or person outside The Company, unless you have authorised us to do so, or unless we are requested to do so by a law enforcement agency in relation to a suspected breach of any law.
N O S A L E O F P E R S O N A L I N F O R M A T I O N
Under no circumstances will The Company sell or receive payment for licensing or disclosing your personal information.
P A S S W O R D S
Ultimately, you are solely responsible for maintaining the secrecy of your passwords and/or any personal information. Be responsible whenever you are online.
S E C U R I T Y
Please note that our website does not provide systems for secure transmission of personal information across the internet, except where otherwise specifically stated. You should be aware that there are inherent risks in transmitting personal information via the internet and that we accept no responsibility for personal information provided via unsecured websites.
We will not be held liable for loss or damage arising from unauthorised access to your personal information or a breach of this policy whether or not such access or breach was caused by our negligence or wilful act or omission or that of our employees or agents.
A C C E S S A N D C O R R E C T I O N
The security of your information is important to us. The information we have collected about you cannot be seen or modified by anyone else without your consent. We make all reasonable efforts to ensure that information is stored securely both in electronic and physical form.
You may access your information at any time. If you would like to know what information we hold about you, please contact us. If you discover that there is an error or information is missing, please notify us and we will try to correct or update the information as soon as possible.
We will try to ensure that all information we collect, use or disclose about you is accurate, complete and up to date.
Post: Unit 1, 60 Keilor Park Drive, Keilor East, VIC 3033
C O M P L A I N T S A B O U T P R I V A C Y
If you have any complaints relating to online privacy issues on our websites, please notify The Company. While the Company accepts no liability for any material or links posted to the service, we will investigate all complaints.
C H A N G E S T O O U R P R I V A C Y P O L I C Y
SCHEDULE 3 - RULES
• The User acknowledges that a risk of personal injury is inherent in the use of the Smash Rooms. The Company takes reasonable steps to mitigate the risks and make the Smash Room experience as safe as possible for each User. However, the User acknowledges that they use the Smash Room at their own risk.
• User agrees that it shall only use the Services for legal purposes and shall not use them to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
• In order to qualify to use the Smash Room, a User must:
• Be over the age of 18 and in good health;
• Be over the age of 13 with a parent or legal guardian completing your waiver form, and be in good health;
• Dress in suitable attire and use the safety clothing and equipment provided by the Company;
• Wear close-toed shoes;
• Pay a booking fee for use of the Smash Room;
• Have no outstanding or untreated injuries;
• Not be under the influence of any drugs;
• Not have consumed alcohol;
• For safety reasons the User must not be pregnant or wearing casts;
• Follow the instructions given by The Smash Room or its employees at all times.
• A booking fee shall in default include:
• The value of one collection of Items to be broken by a User in the Smash Rooms during a booking; and
• The use of any safety equipment or equipment provided by the company for use by the User in the Smash Rooms.
• The company may allow a User to supply their own items subject to any pricing and additional terms the company may set from time to time as:
• Described on the site; or
• Determined by a representative in their discretion.
• The company may charge the User an additional fee for any additional units of items to be used during a booking.
• Any items supplied by a User must be approved by a representative prior to the User being allowed to use the items in the Smash Rooms.
• The User may only break items within the Smash Rooms, and must not:
• Break items outside the Smash Rooms;
• Damage any window, door, wall, light, floor, door handle or any other furniture, fixture or fitting at the premises where the Smash Room is located;
• Damage anything a representative specifically states is not items;
• Damage any camera equipment present at the Smash Rooms;
• Use an implement in a threatening manner towards any person;
• Deliberately break or damage any implement or safety equipment provided by the company.
• The Company may impose additional safety rules, and rules of conduct specific to a Smash Room, and any items from time to time, which shall apply to each User of the Smash Room.
• No User may use a Smash Room until the User has completed a safety briefing.
• A User must notify a representative of any health condition that could reasonably affect their ability to safely use the Smash Room. The representative may refuse a User entry if they determine that the User may be unable to safely use the Smash Room.
• Every User must comply with any direction given by a representative.
• No user may enter the Smash Room under the influence of alcohol, drugs or any other substance that may affect the User’s ability to safely use the Smash Room.
• A representative may evict a User from a Smash Room if the User:
• Has failed to follow the reasonable directions of the representative; or
• Presents a hazard to the safety and wellbeing of any person including them self.
• No items whether broken or not may be removed from the Smash Room, except for any unbroken items the User may have brought with them.
• The company may monitor the Smash Rooms to ensure the User’s safety and compliance with the agreement.
• The Users must comply with all signs or other directions of the Company and it may suspend or cancel the User’s use of the Services and the Site for non-compliance with these conditions or for reckless or careless conduct.
• All Users must comply with COVID-19 regulations and comply with the directions of the Company to ensure compliance.
You understand and acknowledge that by completing the booking form, you are legally agreeing to all of the statements in this document.