Terms and Conditions
MEMBERSHIP TERMS AND CONDITIONS
Membership Terms and Conditions
The member (“Member”) named in the attached membership form (“Membership Form”) agrees with The Kite Hub Pty Ltd (ACN 628 960 092) (“The Kite Hub”) that in consideration of The Kite Hub agreeing to offer membership of The Kite Hub to the Member (“Membership”) the following terms and conditions shall apply:
Legal Agreement: This agreement (which includes the Membership Form and the Release, Waiver and Assumption of Risk Agreement attached to this agreement) is a binding legal agreement between the Member and The Kite Hub. This agreement constitutes the entire agreement between the Member and The Kite Hub in relation to the Membership.
Term of Agreement: This agreement commences on the start date specified in the Membership Form (“Start Date”) and will continue until the end date specified in the Membership Form (“End Date”), unless terminated earlier in accordance with this agreement (“Term”).
Waiver Form: The Member agrees to sign the Release, Waiver and Assumption of Risk Agreement attached to this agreement.
Cooling Off Period:
- The Membership is subject to a cooling off period commencing on the Cooling Off Period Start Date specified in the Membership Form and ending on the Cooling Off Period End Date specified in the Membership Form (“Cooling Off Period”) The Cooling Off period must be a minimum of 48 hours.
- The Cooling Off Period applies to new memberships only and does not apply to membership transfers or renewals.
- If the Member wants to cancel the Membership during the Cooling Off Period, they must do so in writing to The Kite Hub. Written requests can be emailed to email@example.com.
- If the Member cancels the Membership during the Cooling Off Period, all monies paid will be refunded to the Member, less the costs of any services the Member has used during the Cooling Off Period.
- The membership type is specified in the Membership Form (“Membership Type”).
- Membership of The Kite Hub entitles the Member to book and use the following kite surfing equipment as many times as the Member wishes during the Term and on the days permitted within the Membership Type:
- The Kite Hub will make the Equipment available to the Member at the agreed time and location in accordance with an online booking made by the Member in accordance with clause 10.
- The Kite Hub reserves the right to make changes to the Equipment available to its Members at any time.
Limitations on Membership: The Member agrees and acknowledges that:
- Equipment is not available and bookings may not be made before 6.00am AWST and after 6.00pm AWST each day;
- membership fees are not refundable and non-usage of the Membership does not warrant a refund of any type;
- any non-usage of the Membership does not affect any of the terms of this agreement and The Kite Hub is in no way responsible for the Member’s level of usage nor is it responsible to notify the Member of the Member’s usage;
- some Equipment may not be available if it is already booked by other members, with such reservations to be determined on a first in time basis;
- some Equipment may not be available due to circumstances beyond the control of The Kite Hub, such as theft or damage; and
- for the safety of the Member, The Kite Hub reserves the right to refuse a booking and withhold Equipment from the Member during dangerous or extreme weather events, as determined by The Kite Hub in its sole discretion.
Member’s Obligations and Responsibilities: Membership of The Kite Hub requires the Member to:
- hold the accreditations and insurances required by clause 9 at all times during the Term;
- provide The Kite Hub with updated contact details for the Member when they change;
- comply with all terms and conditions in this agreement;
- pay all agreed fees and ensure sufficient funds are available to cover all fees and advise The Kite Hub in advance if the Member’s bank account or credit card is closed or changed;
- inform The Kite Hub in advance if any health or medical conditions may put the Member at risk if the Member uses the Equipment.
Membership Fees: Except as otherwise agreed in writing with The Kite Hub:
- the Membership fee will be as specified in the Membership Form, which may be calculated on a pro-rata basis if the Member has signed up for a Membership Type after the commencement date of that particular Membership Type;
- the Member must pay the Membership fee in full by the date that is seven (7) days prior to the End Date;
- the Member must pay the full Membership fee through a Partial.ly payment plan account at thekitehub.com by:
- an upfront payment before the Start Date for an amount equal to 10% of the full Membership fee or such other amount as The Kite Hub may specify in writing (“Down Payment”); and
- recurring weekly, fortnightly, three weekly or monthly instalments of the balance of the Membership fee, being the full Membership fee less the Down Payment (“Balance”);
- the Member may make additional payments to the Balance at any time during the Term, and after each additional payment made by the Member the recurring instalments set out in clause 8(c) will be adjusted accordingly;
- the Member authorises Partial.ly or The Kite Hub to directly debit the Member’s nominated bank account or credit card for any instalments of Membership fees due under this agreement;
- if paying by direct debit, the Member agrees to pay the instalment amount at the agreed payment frequency until the end of the Term or until this agreement is terminated in accordance with clause 18; and
- if paying by direct debit, it is the Member’s responsibility to ensure cleared funds are available in the Member’s nominated account to meet the direct debit payment. If a debit is returned unpaid by the Member’s financial institution, the Member will be responsible for payment of the debit and may be required to pay an additional $15.00 for return fees and administrative costs incurred by The Kite Hub, in its sole discretion. If Partial.ly or The Kite Hub has not received instruction to the contrary from the Member, Partial.ly or The Kite Hub will debit both the next due payment and any overdue amounts on the next scheduled debit date.
Member Accreditation and Insurance:
- The Member must hold a level 2 (Intermediate) kitesurfing accreditation from an International Kiteboarding Organisation affiliated teaching centre (“Accreditation”).
- If the Member does not hold the Accreditation, The Kite Hub may:
- assess the Member to determine, in its sole discretion, whether the Member has a level of kite surfing experience and competence equivalent to the Accreditation; or
- suspend the Membership until the Member provides The Kite Hub with evidence that the Accreditation has been obtained.
- The Member must at all times during the Term maintain valid insurance through the Kiteboarding Australia National Insurance Program or equivalent cover.
- The Member must provide a copy of the Accreditation and insurances to The Kite Hub upon request.
- If at any time the Member ceases to hold the insurances in accordance with clause 9(c) during the Term, The Kite Hub may suspend the Membership until such time as the Member obtains or renews the insurances and produces evidence to The Kite Hub of the insurances.
Rules and Regulations: The Member agrees to comply with the rules and regulations of The Kite Hub attached to this agreement (as amended from time to time).
- The Member may book Equipment through the member’s portal at thekitehub.com.
- Equipment is available for collection at the locations specified by The Kite Hub from time to time, including but not limited to the Safety Bay carpark on the corner of Safety Bay Road and Waimea Road, Safety Bay, Western Australia.
- A Member may cancel a booking at any time, however The Kite Hub reserves the right to charge a reasonable cancellation fee in the event of the Member cancelling a booking within 30 minutes of the booking time on more than three consecutive occasions.
Use of Equipment:
- The Equipment is to be used at the locations specified by The Kite Hub from time to time, including but not limited to The Pond, Penguin Island and Secret Harbour.
- Equipment may only be used by the Member who booked the Equipment.
- The Member agrees to use the Equipment in accordance with its operating and safety instructions, and if the Member has any doubts about the correct use or operation of any piece of Equipment, they must seek assistance from a staff member of The Kite Hub or not use the Equipment.
- All Equipment must be returned to The Kite Hub in its original state.
Damage to Equipment:
- The Kite Hub will inspect all Equipment upon return by the Member.
- The Member is liable to pay for any damage to the Equipment caused wilfully or by the Member’s negligence.
Risk: The Member acknowledges and understands the inherent risks of injury or ill health resulting from use of the Equipment and from participation in kitesurfing generally, and the use of the Equipment is at the Member’s own risk and responsibility, whether or not supervised by The Kite Hub.
Minors: Any person under the age of 18 years is not entitled to Membership unless a parent or guardian has signed a consent form in person with a staff member of The Kite Hub.
Liability and Indemnity: The Member agrees that except to the extent caused by a breach of this agreement by The Kite Hub or the negligence or wilful misconduct by The Kite Hub or its officers, employees or contractors, The Kite Hub and its officers, employees and contractors shall, to the maximum extent permitted by law, not be liable to the Member for any Claims whatsoever in relation to:
- provision or non-provision of the Membership or arising from any act or omission by The Kite Hub relating to the Membership;
- the matters set out in clause 6;
- the use by the Member of the Equipment; or
- acts or omissions of the Member or any third party,
and the Member shall and hereby does indemnify and hold The Kite Hub and its officers, employees and contractors harmless from all such Claims. In this agreement “Claim” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation for legal costs or special, indirect, punitive or consequential damages, loss of profit or business opportunity or payment of liquidated sums).
- To the maximum extent permitted by law, the Membership is provided without any warranties of any kind, either express or implied. Any warranty which is implied by law or statute is excluded to the maximum extent permitted.
- Nothing in this Agreement may be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the Membership of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal law. The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to the Membership and cannot be contracted out of, they apply and override any inconsistent provisions in this agreement but only to the extent of the inconsistency.
Suspension and Termination:
- The Kite Hub may suspend the Membership during any period in which an amount owing by the Member pursuant to this agreement is overdue.
- The Member may terminate this agreement at any time by giving The Kite Hub 14 days written notice to that effect, provided that:
- the Member has paid the full Membership fee due for the period from the Start Date to the date of termination, calculated on a pro-rata basis, plus any other amounts owing by the Member to The Kite Hub under this agreement; and
- the Member has paid a termination fee equal to 20% of the Membership fees that would have been payable by the Member between the date of termination and the date on which this agreement would have ended if it had not been terminated by the Member early (“Termination Fee”).
- The Kite Hub may terminate this agreement by notice in writing to the Member if:
- the Member breaches this agreement and fails to remedy that breach within 14 days of notice by The Kite Hub setting out that breach;
- to the extent permitted by law, the Member goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or becomes subject to Part X of the Bankruptcy Act 1966; or
- despite all reasonable efforts, The Kite Hub is unable to supply the Equipment or The Kite Hub temporarily or permanently ceases business.
- If this agreement is terminated in accordance with clause 18(b) or 18(c), The Kite Hub will repay to the Member any Membership fees paid in advance by the Member in respect of the period between the date of termination and the date on which this agreement would have ended if it had not been terminated early, on a pro-rata basis, less the Termination Fee and any other amounts owing by the Member to The Kite Hub under this agreement.
- If not terminated sooner, the Membership expires at the end of the Term.
Transfer of Membership:
- The Member may transfer or assign the Membership to another person with the written consent of The Kite Hub, which will not be unreasonably withheld, provided that all Membership fees are paid in full for the entire Term.
- Transfers are subject to The Kite Hub’s normal Membership Terms and Conditions, however no cooling off period shall apply to the new member.
- The terms of the membership agreement that the Membership is associated with remain unchanged.
- Requests to transfer a Membership must be made by the Member to a staff member of The Kite Hub in person.
Images, Videos and Recording: The Member irrevocably authorises The Kite Hub to capture and record any image, video or sound of the Member whilst using the Equipment and to use such image, video or sound in any way The Kite Hub may choose at its sole discretion, including for marketing and promotion purposes.
GST: All fees referred to in this agreement do not include goods and services tax (GST) unless expressly stated otherwise in the Membership Form. The Member must pay to The Kite Hub, on each date the Member must make payment for a taxable supply under this agreement, an additional amount equal to the GST payable on the GST free amount of the taxable supply. In this agreement “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
- Reference in this agreement to the singular includes the plural, and to any party to this agreement includes the party and its successor, administrator, personal representative, transferees and assigns.
- A notice to be served under this agreement will be duly served if it is in writing and is sent to the address appearing in the Membership Form for each party by certified mail, personal delivery or email, provided there is proof of delivery.
- Neither party may assign or transfer any right or obligation under this agreement without the written consent of the other.
- Nothing in this agreement constitutes or creates a relationship of partnership, employment, agency or joint venture between The Kite Hub and the Member.
- If any provision or part provision of this agreement is invalid, unenforceable or illegal then it shall be deemed deleted and the remaining parts shall continue to apply with full force and effect.
- This agreement is governed by the law in force in Western Australia. Each party irrevocably submits to the jurisdiction of the courts of Western Australia with respect to any Claim which may be brought at any time relating in any way to this agreement.
- Any omission by a party to enforce any provision of this agreement shall not operate as a waiver and will not prejudice the rights of the party to enforce any of the provisions.
- All provisions in this agreement in respect of indemnities survive the termination of this agreement. This agreement may be exchanged by execution in counterparts and the exchange of executed facsimile or PDF copies shall constitute a binding and complete agreement.
- The Kite Hub reserves the right to amend this agreement at any time. The Kite Hub will notify the Member of any amendments in writing. Continued use of the Equipment or the member portal will be deemed to constitute acceptance of those amendments.