THE SMASH ROOM PTY LTD – TERMS AND CONDITIONS/WAIVER
BETWEEN
The Smash Room Group Pty Ltd ACN 666 866 486 of 57 Cochranes Rd, Moorabbin, 3189
(The Company)
AND
Each and all persons who use or intend to use the Services of The Company
(The User)
- INTRODUCTION
1.1. This document along with the Privacy Policy and Safety Briefing as found on the Company website The Smash Room Melbourne (collectively “the Agreement”) set out the rights and responsibilities of the User and the Company in regard to the use of the Smash Room facility (“the Recreational Services”).
1.2. In consideration for being permitted to participate in the Recreational Services, the User in entering into the Agreement agrees to be bound by these Terms and Conditions and Waiver and the Rules as set out in this Agreement.
- INTERPRETATION AND DEFINITIONS
2.1. 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 terms have the corresponding meanings:
(a) Agreement means the Terms of Use (including schedules and documents expressly included by reference) 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) Company means The Smash Room Group Pty Ltd (ACN 666 866 486), at all of its locations and all of its members, managers, officers, directors, owners, employees, agents, contractors, subcontractors, subsidiaries, assignees, and any entity operating a Smash Room in respect as the Supplier of Recreational Services as defined hereunder.
(e) Content means any written, video, audio or other material provided to a User, in which the Company holds intellectual property rights.
(f) Fee means any fee payable by a User for access to or use of a Service.
(g) Implement means any object used to break Things, including without limitation, a baseball bat.
(h) Licence means the licence described in clause 4
(i) Privacy Policy means The Smash Room’s privacy policy as updated from time-to-time, which can be found at Schedule 2.
(j) Recreational Services includes but is not limited to access to information, tools and features available via the Company’s website, use of the Smash Room and any other services provided by the Company.
(k) Representative means an employee, instructor, or other Representative of the Company.
(l) Services means the same definition as Recreational Services.
(m) Session means the time during which the User is accessing, or being provided, the Recreational Services.
(n) Site means the premises or part thereof occupied by the Company at which the Recreational Services are provided to the User.
(o) Smash Room means the room operated by the Company in which Users can break Things.
(p) Suitable Attire means clothing that must cover the User’s full body including long sleeved top, full length pants, socks covering ankles.
(q) Safety Equipment means:
(i) Coveralls that cover the arms and up to the neck;
(ii) face shield;
(iii) gloves; and
(iv) such other safety equipment that the Company requires.
(r) Things means any objects or materials permitted by the Company to be broken by the User in the Smash Room.
(s) Third Party means any person that is not a User or the Company.
(t) User means the person participating in the .
(u) We or Us means the Company.
(v) You means the User
2.2. Grammatical forms of defined terms have the corresponding meaning.
2.3. Unless expressed otherwise, references to the singular includes the plural and references to the plural include the singular.
2.4. Headings in this Agreement, despite being numbered, are for ease of reference and navigation only and do not form part of this agreement, nor are they to be used in interpreting the agreement.
2.5. Where a situation is expressed to be an example in this Agreement, it is intended to provide a hypothetical situation in which the clause is likely to operate to assist the lay reader in understanding the context of the clause, and the example does not form part of this agreement.
- APPLICATION OF THIS AGREEMENT
3.1. This Agreement applies to the use of and access to the Recreational Services and the Site.
3.2. Where a User has interacted with more than one entity that is a Company as defined in this Agreement, each such entity is taken to have entered a separate Agreement with the User to which the other Company entities are not a party.
3.3 Where the User does not accept, or fails to comply with, the terms and conditions of this Agreement, the Company may at any time terminate the User’s use of the Recreational Services with immediate effect.
3.4 The Agreement may be updated by the Company at its absolute sole discretion from time to time and will be effective from the time that the updated Agreement is published on the Company’s website. It is the User’s responsibility to inform themselves of the terms of the Agreement that are in force at the time the User access the Recreational Services.
3.5. The User acknowledges that it has read this Agreement and understands the terms and conditions contained within this Agreement.
3.6. By using the Site or accessing the Recreational Services, the User accepts and agrees to the terms of this Agreement.
- LICENCE
4.1. By accepting the terms and conditions of the Agreement, the User is granted a limited, nonexclusive, and revocable licence to access and use the Recreational 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.
- FEES AND BOOKINGS
5.1. 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.
5.2. The Company may introduce new Recreational Services with corresponding Fees by giving the User written notice of their availability and applicability.
5.3. The Company shall maintain all Fees for the terms of the licence paid for by the User.
5.4. The User’s access to Recreational Services under the licence is conditional on Fees being paid in full prior to gaining access. This is an essential term of this Agreement.
5.5. The Company may revoke or suspend the User’s licence to access Recreational Services for unpaid Fees without incurring any liability or obligation in favour of the User.
5.6. Where the Company:
(a) is required to perform any Services for the User outside of what is set out in the Agreement or otherwise in writing; and
(b) is subject to delays caused by changes or complexities outside of what is set out in the Agreement or otherwise in writing; and
(c) 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 Services performed.
5.7. No refunds of Fees are offered other than at the sole discretion of the Company.
- ACCESS
6.1. By accepting the terms of this Agreement, the User agrees that the Company shall provide access to the Recreational Services to the best of its abilities, however access to the Recreational Services may be prevented by issues outside of its control and the Company accepts no responsibility for ongoing access to the Recreational Services in those circumstances.
- INTELLECTUAL PROPERTY
7.1. 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.
7.2. 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.
7.3. 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.
- GENERAL RULES FOR USE OF THE SMASH ROOM
8.1. In order to qualify to use the Smash Room, a User must:
(a) be over the age of:
(i) 18 and in good health; or
(ii) 13 with a parent or legal guardian completing your waiver form and Parent Consent Form and be in good health;
(b) dress in suitable attire and use the Safety Equipment provided by the Company;
(c) wear close-toed shoes;
(d) pay a Booking Fee for use of the Smash Room;
(e) have no outstanding or untreated injuries;
(f) Follow the instructions given by The Smash Room or its employees at all times.
(i) The User must comply with all safety instructions and equipment requirements provided by The Smash Room, its staff or instructions, including the use of all safety clothing and equipment.
(ii)Failure to do so increases the risk of injury, for which the User assumes full responsibility.
And must not:
(g) be under the influence of any drugs;
(h) have consumed alcohol;
(i) be pregnant;
(j) wearing casts;
- BOOKING FEE INCLUSIONS AND EXCLUSIONS
9.1. unless otherwise specified, a Booking Fee shall include:
(a) The value of one collection of Things to be broken by a User in the Smash Rooms during a booking; and
(b) The use of any Safety Equipment or other equipment provided by the Company for use by the User in the Smash Rooms.
9.2. The Company may charge the User an additional Fee for any additional units of Things to be used during a booking.
- BRINGING YOUR OWN THINGS
10.1. The Company may allow a User to supply their own Things subject to any pricing and additional terms the Company may set from time to time as:
(a) Described on the site; or
(b) Determined by a Representative in their discretion.
10.2. Any Things supplied by a User must be approved by a Representative prior to the User being allowed to use the Things in the Smash Rooms.
- ADDITIONAL RULES OF ENTRY
11.1. The User may only break Things within the Smash Rooms, and must not:
(a) break Things outside the Smash Room;
(b) 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;
(c) damage anything a Representative specifically states is not Things;
(d) damage any camera equipment present at the Smash Rooms;
(e) use an Implement in a threatening manner towards any person;
(f) deliberately break or damage any Implement or Safety Equipment provided by the Company.
(g) The Company may impose additional safety rules, and rules of conduct specific to a Smash Room, and any Things from time to time, which shall apply to each User of the Smash Room.
(h) No User may use a Smash Room until the User has completed a safety briefing, including watching the Safety Briefing video on The Smash Room website or at the premises.
(i) 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.
11.2. Every User must comply with any direction given by a Representative.
11.3. 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:
(a) Has failed to follow the reasonable directions of the Representative; or
(b) Presents a hazard to the safety and wellbeing of any person including themselves.
11.4. No Things whether broken or not may be removed from the Smash Room, except for any unbroken Things the User may have brought with them.
11.5. The Company may monitor the Smash Rooms to ensure the User’s safety and compliance with the Agreement.
11.6. 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.
11.7. All Users must comply with COVID-19 regulations and comply with the directions of the Company to ensure compliance.
11.8. The User understands and agrees 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 failure to comply with any reasonable direction of the Company or its Representative, for any conduct that is viewed as unsafe or inappropriate, or for any other reason whatsoever, whether disclosed or not.
- LIABILITY AND INDEMNITY OF USER
12.1. The User agrees that it uses the Site and participates in the Recreational Services at its own risk and the Company does not have to provide the User with access to the Site and participates in the Recreational Services until the User has read, understood, and signed the Waiver, being Schedule 1 to this Agreement, and which is found here.
12.2. The User acknowledges that the Company does not provide Things for use anywhere else, other that the Smash Room.
12.3. The User acknowledges that it is responsible for its own personal property and the Company accepts no liability for any loss or damage to any property owned by the User
12.4. The User agrees that it has had reasonable opportunity to obtain legal advice in respect of this Agreement.
12.5. The User agrees to pay the costs to, and authorises the Company to take all steps that the Company considers necessary to, protect the User’s welfare in the event of personal injury, including the administration of any emergency medical treatment and ambulance transportation.
12.6. The User acknowledges that the Company is not responsible for the conduct or activities of any other user and that the Company is not liable for such under any circumstances.
12.7. 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 and conditions.
- ASSUMPTION OF RISK
13.1. The User hereby acknowledges, accepts, and agrees that the use of or participation in the Recreational Services is inherently dangerous. Participation in the Recreational 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.
13.2. 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 Recreational Services. The User is advised to consult with their medical practitioner if they have any concern about my medical condition or fitness to engage in the Recreational Services.
13.3. The User has been provided with information regarding the Recreational Services, equipment, and facilities and has had the opportunity to ask any questions that they may have regarding the same. The User is satisfied that they have sufficient knowledge of the nature and extent of all the inherent risks associated with the Company and the Recreational Services, equipment, and facilities used by the Company and related activities at the Company, which may include but are not limited to:
(a) Any and all manner of injury, including without limitation the possibility of serious injury or death, resulting from any of the Recreational Services, equipment, and facilities at the Company’s Site, including without limitation, slipping or tripping on debris and hitting the floor, equipment, Implements, people or debris, whether permanently or temporarily in place, failure to wear Safety Equipment, flying debris or any other consequence whatsoever of participating in the Recreational Services;
(b) Injuries resulting from the actions or omissions of others, including but not limited to slips, trips and falls of other participants and flying debris;
(c) Cuts and abrasions resulting from skin contact with damaged items, debris, or any other surface, person, or equipment;
(d) Injuries resulting from shock, stress or another injury;
(e) The aggravation or worsening of any existing medical condition;
(f) Failure or misuse of Safety Equipment, Implements, or any other items or equipment;
(g) Failure to follow the Company’s or its Representative’s instructions or failure to ask for information or assistance;
(h) Any injury that may occur while moving on or about the Site 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 the Site.
13.4. The User further acknowledges that the above list is not inclusive of all possible inherent risks associated with the use of the Recreational Services, and agree that such list in no way limits the extent or reach of the Agreement.
13.5. The User understands that they have an obligation to remain vigilant and take all practicable precautions and conduct themselves in such a way that minimises risk to themselves and to others. The User hereby indemnifies the Company against any loss caused to the User or others arising from any failure to meet this obligation.
13.6. The user acknowledges that this assumption of risk and the warning in Schedule 1 below constitutes sufficient notice pursuant to relevant legislation, including the ACL and ACL Victoria.
(a) The User acknowledges that they have been informed of all safety requirements, including the recommended use of steel-capped boots and other safety equipment, and agrees to comply with all safety instructions provided by the Company. Failure to do so increases the risk of injury, for which the User assumes full responsibility.
13.7. The User agrees that it uses the Site and participates in the Recreational Services at its own risk and the Company does not have to provide the User with access to the Site and participates in the Recreational Services until the User has read, understood, and signed the Waiver, being Schedule 1 to this Agreement, and which is found here.
13.8. The User acknowledges that the Company does not provide Things for use anywhere else, other that the Smash Room.
13.9. The User acknowledges that it is responsible for its own personal property and the Company accepts no liability for any loss or damage to any property owned by the User
13.10. The User agrees that it has had reasonable opportunity to obtain legal advice in respect of this Agreement.
13.11. The User agrees to pay the costs to, and authorises the Company to take all steps that the Company considers necessary to, protect the User’s welfare in the event of personal injury, including the administration of any emergency medical treatment and ambulance transportation.
13.12. The User acknowledges that the Company is not responsible for the conduct or activities of any other user and that the Company is not liable for such under any circumstances.
13.13. 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 and conditions.
- LIABILITY OF THE COMPANY
14.1 The User hereby releases and agrees to indemnify and hold harmless the Company from any liability for any of the injuries described in paragraph 13.3 herein arising from:
(a) the Recreational Services not being supplied by the Company with due care and skill;
(b) the Recreational Services provided by the Company not being reasonably fit for their purpose;
(c) the Company not providing an acceptable quality of equipment fit for use; and
(d) any allegations or charges of negligent acts or omissions on the part of the Company, save for any gross negligence on the part of the Company which is specifically excluded from this exclusion of liability clause.
SCHEDULE 1 – WAIVER FORM
WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012
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 are excluded, restricted or modified in the way set out in this form, if you are killed or injured because the Services provided were not in accordance with the statutory guarantees outlined below.
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.
In accordance with section 22 of the Australian Consumer Law and Fair Trading Act 2012, the exclusion of these statutory guarantees is brought to your attention by 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 2022 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
- ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
15.1. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
15.2. The User can direct notices, enquiries, complains and so forth to the Company as set out in the Agreement.
15.3. The Company will notify the User of a change of details from time to time.
15.4. 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.
15.5. Notices must be sent to the parties’ most recent known contact details.
15.6. The User may not assign or otherwise create an interest in the Agreement.
15.7. The Company may assign or otherwise create an interest in its rights under the Agreement by giving written notice to the User.
15.8. While using The Company’s Services, equipment, and facilities, the User consents to the Company capturing any form of media containing the User’s 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.
- SEVERABILITY
16.1 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect either the User or the Company) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.