Prodigy MMA Pty Ltd Terms & Conditions of Trade
1.1 "Seller" shall mean Prodigy MMA Pty Ltd and its successors and assigns.
1.2 "Buyer" shall mean the buyer or any person or Seller acting on behalf of and with the authority of the buyer.
1.3 "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer if a Limited Liability Buyer on a principal debtor basis.
1.4 "Goods" shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 "Services" shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 "Price" shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller
2.2 None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
3.1 The Goods shall be as described on the invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by the Seller to the Buyer.
3.2 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(i) such discrepancy in quantity shall not exceed 10%.
(ii) the Price shall be adjusted pro rata to the discrepancy.
3.3 In the case of second hand Goods the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
4. Price and Payment
4.1 At the Sellers sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) The price of the Goods shall be the seller/s quoted price which shall be binding upon the seller provided that the buyer shall accept in writing the Seller/s quotation within thirty (30) days. If a quotation is given at a discounted rate for early payment, and early payment is not received then the Seller shall vary the quotation to take into account the late payment.
4.2 At the Sellers sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods / Services and shall become immediately due and payable.
4.3 Time for payment for the Goods/Services shall be of the essence will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods / Service. Late payments may incur an increase in the hourly rate charged by the Seller.
4.4 At the Sellers sole discretion payment for the Goods/Services shall be on the date of the agreement.
4.5 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Sellers sole discretion discounts on the Price of Goods and Services may be offered to Buyers who have paid before delivery or on the date of delivery.
4.7 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and the Seller.
4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Delivery of Goods
5.1 Delivery of the Goods shall be made to the Buyer's address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods/Services shall be made to the Buyer at the Sellers address.
5.2 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.3 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller's rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. The Seller will apply the insurance proceeds as follows:
(i) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise;
(iii) third, in payment of any other sums payable to the Seller by the Buyer on any account;
(iv) fourth, any balance is to be paid to the Buyer.
7.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8. Return of Goods
8.1 Except as provided in this clause, the Buyer is not entitled to return the Goods to the Seller for any reason. For defective Goods which the Buyer is entitled to reject, the Seller's liability is limited to either (at the Seller's discretion) replacing the Goods, or refunding the Price provided that:
(a) the Buyer must notify the Seller within fourteen (14) days of delivery that the Goods are defective;
(b) the Seller is given a reasonable opportunity to investigate the Buyer's claim;
(c) the Seller will not be liable for Goods which have not been stored in a proper manner.
9.1 The warranty for all equipment shall be, unless otherwise specified, for a period of 30 days from the supply date. The Warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable
11. Buyers Disclaimer
11.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all of the Seller's costs and disbursements including on a solicitor and own client basis and in addition all of costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply:
An immediate amount equivalent to 10% of the amount overdue levied for administration fees which sum shall become immediately due and payable.
12.5 If a payment for membership fees fails due to issues with the buyers bank account, credit card or other payment method, a $10 administration charge may be levied against the buyer at the sole discretion of the seller.
12.6 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller's opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of the seller and agreed by the Buyer that property in the goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods; and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 It is further agreed that:
(a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(b) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller's agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(d) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(e) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(f) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
14. Security and Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller's nominee to secure all amounts and other monetary obligations payable under the terms and conditions.
The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller's costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller's nominee as the Buyer's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer's and/or Guarantor's name as may be necessary to secure the said Buyer's and/or Guarantor's obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Goods & Services;
(b) marketing of Goods and or Services by the Seller, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods or Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods and Services.
16.5 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17. Unpaid Sellers right to dispose of goods
17.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price in terms of this agreement; and
(d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
18. Intellectual Property
18.1 Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller's discretion.
18.2 Conversely, in such a situation, where the Buyer has supplied drawings, the Seller may look for an indemnity for the specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
18.3 The Buyer warrants that all designs or instructions to the supplier will not cause the supplier to infringe any patent, registered design or trademark in the execution of the Buyers order.
19.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Goods supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
19.3 The Buyer shall not set off against the Price amounts due from the Seller.
19.4 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer's consent.
19.5 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
19.6 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
20. Waiver and Limitation of Liability
The buyer acknowledges that they have voluntarily agreed to engage and otherwise participate in the practice of martial arts as offered by the seller.
The buyer understands that this type of sporting practice is inherently dangerous, regardless of the level of supervision. Injuries may occur due to physical situations, including - a slippery floor surface, an over-zealous partner(s) or opponent or a combination of any number of circumstances. The buyer agrees it is clear to them that their voluntary participation in this full contact activity will expose them to the risk of injury; and that injury may well occur at some time. Any person training Martial Arts, or in activities connected with Martial Arts or participating in any activity carried on by the club/academy/company/school is only allowed to do so with the distinct understanding that they do so entirely at their own risk.
In all other cases and except where inconsistent with the above, the buyer for him/herself, his/her executors, administrators, dependents and other personal representatives, hereby absolves and indemnifies the providers and all their servants, agents, employees, landlords, property owner of the premises and other students or persons under the providers control ("the indemnified") from all liability howsoever arising for injury or damage (including but not limited to the applicants person, whether fatal or otherwise, property and personal belongings) however caused including by the negligence of the indemnified, arising out of or participating in Martial Arts or in connection with Martial Arts or in anyway caused by, or arising out of, any activity carried on by the indemnified.
The buyer has been advised and understands that the practice of Martial Arts is potentially dangerous.
The buyer agrees to occupy and use the premises of the seller or the nominated location and/or any agreed location at risk to themselves and release to full extent permitted by law the directors, shareholders of the seller and its agents, servants, contractors, authorised representatives and employees from all claims and demands of every kind in of, or resulting from, any accident or damage to property or injury or death to the buyer while undertaking training in martial arts or other activities with the seller
The buyer agrees they are physically fit and of good physical and mental health. The buyer agrees to proactively advise the seller of any injuries or pre existing medical or conditions. Furthermore the buyer agrees they participate entirely at their own risk despite any pre existing conditions.
The buyer agrees that in the event of injury, sickness or other event the seller has the right to obtain medical advice and treatment for the seller at the sellers expense.
The buyer agrees that they will follow all lawful directions of the seller, their agents, representatives and other authorised people
21. Membership fee's and entitlements
A fee is charged by the seller dependent upon the volume of visits by the buyer. These fee's are collected on a regular basis via direct debit or another agreed to method and payable in advance.
Current and up to date payment of any and all membership fees and other related fees and charges is required before participation in classes or attendance at the premises. Failure to maintain currency of membership may result in penalties being imposed to assist with recovery of overdue fees and additional processing required.
Initial membership term is for a minimum period of 12 calendar months and cannot be cancelled or varied during this time except by agreement of the seller.
After the initial period variations to membership can be made by completion of the membership variation form including upgrades, downgrades, freezes or cancellations. 28 days notice is required for variations to memberships including cancellations,or the buyer will forfeit the membership entitlements for the period where notice is not provided and/or where the buyer does not attend the premises. Cancellations are still subject to the minimum contract term
The buyer agrees not to exceed the agreed to number of visit's per week and acknowledges that all additional visits outside of the initial agreement may be refused or automatically charged at the standard casual fee rate.
The buyer agrees that unused visits are forfeited and non refundable, nor is the seller liable to pay any form of compensation
The buyer agrees that all requests for freezing or suspension of membership due to medical grounds require a doctor's or primary health carer's certificate or statement stating the buyer is unable to participate in class and must include a start and end date for the membership freeze
The buyer acknowledges that classes may not run as advertised due to public holidays, advertised gym closing times, lack of staff or other factors and as such the no compensation is payable to the buyer. The buyer may attend a different class at a different time provided they do not exceed their membership entitlements
The buyer acknowledges that the business is not open on public holidays and for approximately two weeks every year and that the fee's payable by the buyer cater for this and no refund or other compensation is payable for classes not occurring during this time
The buyer acknowledges that they are expected to follow all lawful directions of the seller and their related agents and staff at all times while on the premises. Failure to do so may result in refusal of entry, suspension/cancellation of membership or other penalty as deemed reasonable by the seller
The buyer acknowledges that the seller has the right to refuse entry if the buyer is reasonably believed to be under the influence of drugs (prescription or otherwise), alcohol, or behaving in a manner that is not in keeping with the spirit and ethos of the business, acting in a manner that is dangerous to themselves or others, or acting in a manner deemed inappropriate by the seller.
22.1 Attendance and Courses
Where an application to attend a course is received it is at the sole discretion of the seller whether to permit attendance or not. No reason is required for refusal to allow attendance
The application to attend a course is for the listed individual only and may not be transferred to another individual
A participant in a course undertakes to attend the whole course, failure to do so may result in failure to pass the course. This is at the sole discretion of the seller
The seller will make reasonable efforts to advise the buyer of a cancellation or change in venue.
In the event the seller cancels or reschedules the course the buyer has the option of attending the new course, or receiving a refund
22.2 Conduct during the course
When the buyer is booking a course or event the seller is acting as an agent on the buyers behalf. The buyer will be subject to the venues terms and conditions.
It is the buyers responsibility to ensure that while attending the sellers course and while on any third party premises he or she does not behave in an improper or disorderly manner or in a way which risks or causes damage to property, or in a way which is in breach of the terms and conditions of those premises. The buyer is also required to follow reasonable directions from the sellers staff and agents and not to interfere with other students or negatively impact on their learning experience
In the event of such improper behaviour, the seller will have the right to require the participant to withdraw from the course. In such circumstances, the seller will be entitled to retain the course fee
The participant will also be liable to indemnify the seller for any expenses or other liability it incurs or suffers as a result of any such improper behaviour
22.3 Course Payment Terms
Attendance at the sellers course is conditional on receipt in full of the course fee by Seller prior to the start of the course. (This condition also applies in the case of a part fee agreed for a participant who has demonstrated a clear need for financial assistance.)
Payment terms are 14 days from the date of invoice. The invoice will be issued as soon as the buyer has been accepted on the course.
The person who has signed the application form agrees to these terms and conditions, and has the authority to do so. In the event he/she is not so authorised, he/she will be personally liable for payment of the agreed fee
22.4 Course Cancellation and Refunds
Notice of cancellation must be received in writing by email or via our website and is subject to the following terms:
Where notice of cancellation is received fewer than 30 days prior to the first day of the course, the payer will be liable for 100% of the course fee.
Where notice of cancellation is received between 30 and 56 days prior to the first day of the course, the payer will be liable for 50% of the course fee
Where notice of cancellation is received more than 56 days prior to the first day of the course, The seller will make a full refund of the fee paid
No refund of fees will be made for absence due to illness or for withdrawal during the course for any reason
22.5 Re-registration Policy
It is at the sellers discretion to agree with the buyer the hours/days required to complete the course (e.g. attending the balance of events, or re-starting the course in its entirety) in order to be able to achieve graduate status.
Buyers wishing to defer their place and re-register under this policy will be required to complete a short re-registration form outlining the circumstances and context of their request
If a buyer, having started the course, then withdraws from the course for any reason, it is not guaranteed that the participant will be allowed by the seller to resume attendance.
If a participant misses any part of the course due to absenteeism, this may affect whether the seller confers graduate status upon the participant.
The buyer's re-registration form will be considered by the seller, using the application criteria. The seller cannot guarantee that an application to defer and re-register will be successful.
In cases where the buyer wishes to defer their place before the course they have been originally accepted onto has even started, the re-registration fee policy only applies where the request is received fewer than 30 days prior to the first day of the course (hence the full fee for the original course is due in full).
The buyer can only defer and re-register a course of the same type. Requests to defer and re-register onto a different course may incur a high fee.
The 15% re-registration fee can be waived in exceptional circumstances at the sellers discretion.
23. Media Waiver
The buyer consents to being photographed, interviewed and/or videotaped by representatives of the seller, and media outlets (newspaper, T.V. & radio stations, etc.). Any information or images obtained from those activities may be reproduced by the seller, and/or the public media for use in advertising, publicity or educational activities, including but not limited to Web sites, publications, videos, print and television news. The buyer hereby waive any claims they may have, and release the seller and its representatives from liability of claims arising out of such activities