Terms and Conditions

WELCOME

The YMCA, on behalf of Baw Baw Shire Council, welcomes you to the Baw Baw Leisure Facilities. This facility is managed by YMCA and owned by Council.

At the Baw Baw Leisure Facilities, community comes first. We believe in building community connections and are proud to contribute to creating a vibrant and inclusive Baw Baw Shire.

To guarantee a safe and enjoyable experience for all, please take a moment to familiarise yourself with the below Conditions of Entry.

These conditions apply to the following sites operated by YMCA Victoria:

• Warragul Leisure Centre
• Bellbird Park Indoor Centre
• Drouin Outdoor Pool
• Neerim South Outdoor Pool
• Trafalgar Outdoor Pool
• Thorpdale Outdoor Pool
• Rawson Outdoor Pool

______________________________________

ENTERING THE FACILITY

By entering the Facility, you must, at all times, comply with:

• All posted signs and instructions provided by staff from either the YMCA or Council, including emergency procedures.
• The specific conditions of entry applicable to different areas within the facility, including dress-code and attire standards.

To the fullest extent permitted by law, YMCA and Council retain the right to deny you entry to the Facility, require you to leave, or cancel/suspend your membership, for any reason, including but not limited to:

• Bringing or attempting to bring, an animal on the premises, except where it is a guide or assistance/service animal.
• Bringing, or attempting to bring, prohibited items on the premises, including alcohol, drugs, weapons, glass, and other objects reasonably capable of causing harm.
• Being, or appearing to be, under the influence of drugs or alcohol.
• Engaging in, or attempting to engage in, any of the prohibited behaviours outlined below:

PROHIBITED BEHAVIOUR 

• Smoking, or using, electronic cigarettes (including vapes).
• Using offensive language or engaging in offensive behaviour.
• No drinking alcohol or taking prohibited substances. Note: Staff have the right to refuse entry if they believe a patron is intoxicated or under the influence.
• Displaying offensive images, symbols or text, including tattoos and clothing.
• Disrespecting other patrons or staff.
• Not damaging or stealing property belonging to the facility or patrons visiting the facility. 
• Interfering with the enjoyment of the premises by other patrons.
• Endangering or causing injury to patrons and staff.
• Obstructing or hindering YMCA or Council staff from performing their duties.
• Causing damage to the premises or any property.
• Not bringing glass, sharp items, weapons into the facility. 
• The facility reserves the right to refuse entry to any person and/or request any person to leave if they could cause harm or public nuisance or fail to act in the outlined safe and lawful manner (listed above and in these conditions of entry).

_______________________________________

CHILDREN AND SUPERVISION

• Children under 10 years must be actively supervised at all times by a person over 16 years of age.
• Children under 5 years must be accompanied in the water and within arm's reach at all times.
• Children between 5 and 9 years must be visible and accessible by a parent, guardian or carer at all times.
• Groups will not be admitted where the number of parents, guardians, or carers supervising children under 5 years exceeds the ratio 1:2.
• Groups will not be admitted where the number of parents, guardians, or carers supervising children between 5 to 9 years exceeds the ratio 1:4.

________________________________________

PERSONAL PROPERTY

Your personal property must not be left unattended.

Baw Baw Leisure Facilities will not take responsibility for stolen, lost or damaged goods. 
________________________________________

PHOTOGRAPHY AND PRIVACY

• Capturing photos or videos of your child during swimming lessons is permitted under the following strict conditions to respect the privacy and safety of others:
  • You must obtain consent from all individuals captured in the image or video.
  • It is illegal to publish or broadcast images without consent.
  • Under no circumstances are cameras, mobile phones, or video recording devices to be used in change room areas.
• Failure to comply may result in immediate removal from the Centre and referral to authorities if necessary.

________________________________________

Please see below for Area specific Terms and conditions of entry:

AQUATIC AREAS INCLUDING OUTDOOR POOLS

• Follow our Watch Around Water Policy at all times.
• No running, diving (outside of designated areas), or rough play.
• Infants, Babies/toddlers must wear aqua nappies – standard nappies are not permitted.
• Showers must be taken before entering pools.
• Entry is at your own risk.
• Do not enter the pool if you have had diarrhea or gastro in the last 14 days (crypto risk).
• No glass containers in the pool area.
• Appropriate swimwear only (no street clothing, denim, or underwear).
• Motionless Breath Holding activities are not permitted. Hypoxic training activities must have prior permission from centre management.

________________________________________

AQUA PLAY AREAS / SPLASH PARKS/ INFLATABLE USE

• Height or age restrictions may apply.
• No running.
• Slide feet first.
• Ride one at a time.
• Exit the slide once you have finished.
• Suitable swimwear required.
• Follow our Watch Around Water Policy at all times.

________________________________________

GROUP FITNESS

• Return weights and equipment after use.
• Youth aged 13–18 require adult supervision unless part of a teen program.
• Closed footwear and appropriate exercise clothing must be worn at all times.
• Being mindful of others by sharing space and equipment

________________________________________

SQUASH COURTS

• No food or drink (except water) on court surfaces.
• Correct footwear must be worn – non-marking soles required.
• Spectators must remain off the playing surface and in the dedicated viewing area.
• Do not use courts unless booked or authorised.

________________________________________

STADIUM / SPORTS HALL

• No food or drink (except water) on court surfaces.
• Correct footwear must be worn – non-marking soles required.
• Spectators must remain off the playing surface.
• Do not use equipment unless booked or authorised.

________________________________________

PROGRAMS AND MEMBERSHIPS

If you are a member or enrolled into our programs you are bound by program-specific or membership terms upon enrolment which is located via your online account under agreements.

Public Holidays

• No swimming lessons are conducted on public holidays.
• Direct Debit members may book a make-up lesson as per Clause below.
• Term-paying members are not charged for public holidays and therefore are not eligible for make-up lessons.

Missed Swimming Lessons/Gymnastics and Make-Ups

• Direct Debit customers can organise make up classes for cancelled attendance, provided the Centre was notified of the non-attendance no less than 2 hours before the class.
• Make-up lessons are valid for 90 days from the date of the notified non-attendance.
• Make-up lessons are subject to availability and can be booked through your online account in the client portal.
• Make-up lessons are non-transferable, and unused lessons are non-refundable.
• Non-attended make-up lessons will be forfeited and will not result in an additional make-up lesson.

Parental Involvement in Infant Swimming Classes

• For children under three or those enrolled in infant classes (Starfish, Periwinkle, Minnow), a parent or guardian must be in the water for the duration of the lesson.

________________________________________

OUR POLICIES

Keeping our staff, customer and community safe. Please see link to view our policies.  Specifically in Child safety, Occupational health and safety and Environmental.

________________________________________

LIABILITY

• You will be held responsible for any damage caused to the premises or any property on the premises by yourself or any accompanying children.
• The YMCA and the Council do not accept liability for any injury or death of any person at the premises for any loss or damage to personal property on the premises, to the extent permitted by law.
• If any of these Conditions of Entry, or part thereof, are held to be illegal, invalid, void or unenforceable, that condition is severable, without affecting the validity or enforceability of the remaining part of that Condition or the other Conditions. 

WARNING: If you participate in these activities your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because these activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this sign. 

NOTE: The change to your rights, as set out in or on this sign, 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 committing to doing 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 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012. 

Bellbird Park Indoor Centre Direct Debit Service Agreement

Gymnastics

INTRODUCTION

(a) These are the terms and conditions (Agreement) between YMCA Community Programming Pty Ltd, ABN 75 092 818 445 (YMCA, Us, We) and You as the receiver of the Services. We manage the Bellbird Park Indoor Centre, 270 Settlement Road, Drouin, VIC 3818.

(b) By entering into this Agreement, you agree to the terms and conditions contained within this Agreement.

DEFINITIONS

Activities means for the purpose of clause 15, recreational services including Gymnastics offered at the Facility. 

Centre Conditions of Entry means the terms and conditions governing Your entry and use of the Facility as available at the [https://bellbirdpark.ymca.org.au/terms-and-conditions] and as You agree to as a condition of receiving the Services.

Customer Portal means the platform that We provide You access to upon entering into this Agreement which is a mode of communication, among others, that we will use to communicate with You, throughout this Agreement. 

Facility means the designated dry areas at Bellbird Park Indoor Centre at the Location, including all associated equipment, bathrooms, change rooms, furniture, lockers, and any other areas, services or equipment that You may access or use when entering into this Agreement. Access to certain areas, equipment or attractions within the Facility may be restricted based on safety requirements, including but not limited to age, height, supervision or other operational conditions.

Facility Rules means the rules implemented by Us from time to time for use of the areas within the Facility.

Force Majeure Event means any event beyond a party's reasonable control, including without limitation acts of God, epidemic, pandemic, disease or public health alert, hostilities, war (declared or undeclared), act of terrorism or other threatened acts of violence, hijack, blockade, national strikes, riots, civil commotion or disturbance, a governmental restraint, a court order, an act or omission of a government agency, fire, flood, storm, cyclone or earthquakes.  

Location means Facility located at 270 Settlement Road, Drouin, VIC 3818.

Operating Hours means the period during which the Facility are open and accessible to the public, times which are available at https://bellbirdpark.ymca.org.au/visit/opening-hours and may vary subject to any public holidays observed in Victoria, Australia. 

Services means the provision of Gymnastics by YMCA (Lessons) and access to the Facility. 

Service Fees means the fees that You are required to pay to YMCA to receive the Services from Us.

Suspension means where the Services to you are paused or put on hold for a duration on the terms set out in clause 7.

Program Shutdown Period means a period during which Lessons are not scheduled or delivered, including during Victorian school holiday periods or other periods determined by Us, with the specific dates notified to You in advance.

Service Interruption means any circumstance, where a Lesson is cancelled, postponed, or unable to be delivered due to operational or external factors, including but not limited to Facility closure, maintenance, safety requirements, or staffing constraints.

Membership means the Customer’s ongoing entitlement to receive the Services under this Agreement, including access to the Facility and participation in Lessons, subject to the terms of this Agreement.

Direct Debit Services Agreement means an agreement which authorises a merchant to debit money from your bank account. It outlines the terms of the direct debit, including the amount, payment schedule, your rights (such as the ability to cancel), and the merchant's obligations. The Agreement is the legal basis for the recurring payments and must be in place before any funds are debited.

Merchant means YMCA Community Programming Pty Ltd 

You, User, Customer means the person wishing to receive the Services from YMCA and "Your" has a corresponding meaning. 

1. AGREEMENT

By subscribing to the Services, You acknowledge and agree:

(a) to receive the Services from YMCA at the Facility as governed by this Agreement;

(b) to follow the rules, regulations and Centre Conditions of Entry at all times while using the Facility; 

(c) that to the best of your knowledge, You have no medical reason that might prevent You from using the Facility safely;

(d) that We do not provide medical advice before You use the Facility, and cannot give You medical advice whilst You use the Facility or following Your use of the Facility;

(e) that Your responsibilities under this Agreement, including payments, do not depend on how often You use the Facility, rather they provide You with an entitlement to use the Facility and receive the Services, as contained in this Agreement; 

(f) to tell us if at any time You believe that You may not be able to comply with Your obligations under this Agreement, so we can discuss Your options with You; 

(g) that You may enter into this Agreement for the provision of the Services for a Minor and where you do, You are responsible for the Minor's compliance of this Agreement; and

(h) that this Agreement will come to an end if it is Terminated pursuant to this Agreement. 

2. SERVICES AND FEES

(a) As part of our Services, You are entitled to a certain number of Lessons.

(b) Our Service Fees and inclusions for such fees are detailed on our website at https://bellbirdpark.ymca.org.au/visit/prices.  

(c) Lessons do not have individual fees attached to them and any Service Fees You pay to us, under this Agreement, are for the Services in full (i.e. for access to the Facility and for the number of Lessons allocated as per our Service Fee schedule on our website). 

(d) Your Lessons apply solely to You and may not be sold, transferred to, or used by, any other person with the exception that if You are a parent or guardian entering into this Agreement to retain the Services on behalf of a Minor, YMCA acknowledges that the Minor will attend the Lessons and will be permitted access to the Facility. 

(e) Once You have:

(i) agreed to this Agreement, and We have accepted You as a customer and provided You access to the Customer Portal;

(ii) selected the Services via the Customer Portal and paid your Service Fees up-front or agreed to a direct debit payment arrangement with Us,
then this Agreement to receive the Services will commence.

3. CUSTOMER PORTAL

(a) By entering into this Agreement, We will provide You with access to the Customer Portal. 

(b) The Customer Portal is Your platform to our system to book Lessons and manage Your payment of the Service Fees as outlined in this Agreement.

4. ACCESS

(a) Once Your Agreement commences You are permitted to access the Facility, during all Operating Hours.

(b) We will keep the Facility open during the Operating Hours except where such circumstances prevent us from opening the Facility including a government direction, change in Law or an emergency situation

5. MINORS AND AUTHORISED PAYERS

(a) Where the Customer is under 18 years of age (Minor), this Agreement must be agreed to by a parent or legal guardian who agrees to be bound by all terms and conditions of this Agreement on behalf of the Minor and, guarantees all of the obligations of the Minor (Guarantor). The Guarantor is responsible for ensuring payment of Service Fees and for ensuring all obligations arising under this Agreement are complied with.

(b) Customers under the age of 10 years:

(i) must be accompanied by a parent or guardian at all times when in the Facility; 

(c) If a parent or guardian provides their bank account or credit card details for payment purposes as outlined in this Agreement, they acknowledge and agree that:

(i) they are the authorised payer and are responsible for all payments under this Agreement;

(ii) all notices and communications relating to this Agreement, including but not limited to price changes, payment reminders, and contractual updates, may be sent to the email address provided by the Customer via the Customer Portal, unless otherwise requested; 

(iii) it is their responsibility to ensure that all their details on the Customer Portal are correct and up to date at all times to ensure they are receiving communications from Us; and 
they may request to update the contact email at any time by contacting Us or updating the details via the Customer Portal.

6. PAYMENTS 

(a) Unless You have paid Your Service Fees upfront, Your Service Fees will be debited from Your nominated account at the agreed payment frequency for your Service Fees as governed in this clause 6 upon completing the direct debit authority via the client portal (Direct Debit Authority). 

(b) By completing the Direct Debit Authority, You irrevocably authorise Us to debit Service Fees from Your nominated bank account, in accordance with this Agreement for the agreed amount and frequency of payments, relevant to the frequency of Lessons You have selected via the Customer Portal.

(c) You authorise Us to arrange for any amount We may debit or charge You pursuant to this Agreement to be debited by Us, from Your bank account. 

(d) Throughout Your Agreement, You must ensure:

(i) Your account can accept direct debits (your financial institution can confirm this);

(ii) there is enough money in Your account on the day the payment is due;

(iii) You tell Us if You are transferring or closing your account, at least one week before Your next direct debit; 

(iv) You tell Us about any changes to Your credit card, such as its expiry date or number, at least one week before your next direct debit; and 

(v) You notify Us and Your financial institution if You want to change or stop Your direct debits,

(e) If the nominated day of Your debit falls on a public holiday or weekend, YMCA will debit Your account on the next business day. 

(f) If You are uncertain as to when the debit will be processed, please inquire with Your financial institution. It is Your responsibility to have clear funds in Your account on the due date of the direct debit. 

(g) Should there be any arrears in payments YMCA will provide You with written notice via the Customer Portal of the arrears and will be authorised to debit the outstanding balance in accordance with such notice in order to bring Your account up to date. 

(h) It is Your responsibility to advise Us if the account nominated by You to receive the direct debit drawings is transferred or closed. It is Your responsibility to arrange with Us a suitable alternate payment met if You wish to cancel the direct debit.

(i) The supply period is for 14 consecutive days from the date of the most recent automated direct debit payment. 

(j) Should any payment via direct debit be dishonoured, a $10 administration fee (Dishonour Fee) may be applied to Your next direct debit payment, reflecting the administrative costs associated with processing failed transactions. YMCA will attempt to contact You via email or text message to notify You of the dishonoured payment and the Dishonour Fee that may be added to Your next direct debit payment. 

(k) In the event of payments being dishonoured on two consecutive occasions, YMCA reserves the right to suspend or terminate Your Agreement.  (l) YMCA may additionally charge any other reasonable fees We incur in the recovery of outstanding payments, including fees associated with third party collection services if required.

(m) Any outstanding payments may be made through your Customer Account via the Customer Portal and navigating to My Accounts and Payments.

(n) For the purposes of this clause 6, this Agreement, together with the Direct Debit Authority is your Direct Debit Request Service Agreement with YMCA Community Programming Pty Ltd (YMCA) Direct Debit User Id 403017; ABN 75 092 818 445

For the purposes of this clause 6:-

Direct Debit Services Agreement means an agreement which authorises a merchant to debit money from your bank account. It outlines the terms of the direct debit, including the amount, payment schedule, your rights (such as the ability to cancel), and the merchant's obligations. The Agreement is the legal basis for the recurring payments and must be in place before any funds are debited.

Merchant means YMCA Community Programming Pty Ltd 

7. SUSPENSION OF LESSONS

(a) You will not be charged any Fees during any Suspension, as outlined in this clause 8.

(b) If You require a Suspension for medical reasons, as declared by a qualified medical professional via a medical certificate, You are required to provide us with a medical certificate for the period you require the Suspension for (Medical Suspensions). 

(c) Medical Suspensions may be backdated up to 30 days. 

(d) A Medical Suspension may be requested for a minimum of two (2) weeks and up to a maximum of eight (8) weeks in each calendar year.

(e) You are entitled to request a travel suspension for a maximum of fourteen (14) days per calendar year (Travel Suspension). The Travel Suspension must be taken as either: 

(i) One (1) continuous period of fourteen (14) days; or

(ii) Two (2) separate periods of seven (7) consecutive days each.

Requests must be submitted no less than three (3) days prior to the intended start date and will not be accepted retrospectively.

(f) Suspension requests must be submitted by the customer in writing (via email) or made in person at the facility and processed by Us at that time. Suspensions cannot be requested or processed via the Customer Portal.

(g) Any direct debit payment arrangements will be paused during the relevant Suspension outlined in this clause 8.

(h) During the suspension period, all Services entitlements are placed on hold and are not accessible. You will not be permitted to access the Facility while your Agreement is on Suspension. 

(i) Programs are subject to Program Shutdown Periods. Lessons are not scheduled or delivered during Victorian school holiday periods, and Program Shutdown Periods are not treated as a Suspension requested by You. We will provide reasonable prior notice of Program Shutdown Periods, including applicable dates.

8. ANNUAL GYMNASTICS FEE

8.1 An annual registration/administration fee applies upon enrolment and each calendar year thereafter. For online enrolments this fee will be added to your account after sign-up and charged with your first direct debit payment. The current fee amount, which is subject to change annually, is listed here https://bellbirdpark.ymca.org.au/gymnastics. This fee includes administration costs and registration with Gymnastics Victoria and Gymnastics Australia.

9. TERMINATION 

(a) This Agreement shall continue indefinitely unless terminated by You in accordance with this clause 9.

(b) You may request to terminate this Agreement in writing via email (as outlined in (c) below) or by visiting the Facility and completing a termination form (Notice).

(c) If You wish to terminate your Agreement by email, You may do so by emailing Us at bellbird.park@ymca.org.au. In Your email, We require the following information from You in order to action your request:

(i) Customer name;

(ii) Your phone number;

(iii) address; 

(iv) best email address (if not the email address You emailed Us from); and

(v) reason for the termination.

We will then contact You to discuss finalising the termination of Your Agreement with Us.

(d) You may terminate this Membership (Agreement) at any time by providing at least fourteen (14) days’ written notice to Us (or as otherwise agreed with Us) (Notice Period)

(e) Your final payment will be the last direct debit (Service Fees) that falls within the Notice Period. Following the final payment, your Membership will remain active for a period of fourteen (14) days after which this Agreement will terminate.

(f) We reserve the right to terminate this Agreement on immediate written notice if You do not comply with this Agreement, the Centres Conditions of Entry or the Facility Rules at any time. We will provide You with written notice of the non-compliance and provide You with an opportunity to rectify the non-compliance within a reasonable timeframe unless We determine, acting reasonable, that the non-compliance presents a risk to the health and/or safety of You, Our staff, any other patron at the Facility or any property.

10. FORCE MAJEURE EVENT 

(a) A party affected by a Force Majeure Event must give written notification to the other party as soon as reasonably possible, providing details of the Force Majeure Event and (to the extent reasonably ascertainable) the obligations from which it is being prevented from discharging. 

(b) If a Force Majeure Event prevents or delays a party from performing its obligations under the Agreement, then the requirement to perform that obligation (other than any obligation to pay) is suspended and neither party shall be liable for any delay or default in performance of its obligations for so long as the Force Majeure Event continues. 

(c) Either party may terminate the Agreement if a Force Majeure Event subsists for more than 2 months by providing written notice to the other party via email. 

11. INCREASE IN FEES AND CHANGE OF TERMS 

(a) You acknowledge that We may increase Your Service Fees, direct debit payment amounts, change the frequency of payments, the debit date schedule or this Agreement by providing You with 30 days' written notice. 

(b) If you have any queries in relation to any proposed changes, please contact Us at bellbird.park@ymca.org.au. 

(c) You are entitled to terminate this Agreement in accordance with clause 9 prior to the change taking effect. Otherwise, the change will take effect on the date that is 30 days after We provide written notification to You. Written notification may be provided by email or through the Customer Portal (or both).

12. DISPUTES 

All disputes regarding a direct debit payment should be referred to YMCA:

a) in person at the Facility;

b) by telephone on 03 5625 2501;

c) mailed to 270 Settlement Road, Drouin, VIC 3818;

d) by email at bellbird.park@ymca.org.au;  or 

e) (where relevant) your nominated financial institution.  

13. GENERAL

(a) Provision of services provided by Us may change and for the purposes of this Agreement, is based on “entitlement” to use and not on actual use. 

(b) The Agreement is governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria, Australia.

14. PRIVACY 

(a) YMCA acknowledges and respects the privacy of individuals. The information that is being collected on this document is for the purposes of processing Your acceptance of this Agreement and financial institution payments where applicable. YMCA, its authorised staff and contracted service providers such as financial institutions and Government agencies covered by law, maybe recipients of this information.

(b) By joining or enrolling in Lessons or a program at the Facility You will receive communications from YMCA from time to time to update you on items relating to this Agreement. YMCA uses a range of mediums to communicate with You including, but not exclusive to, direct mail, email, SMS and telephone. If You do not wish to have your information contained in this document used or disclosed for this purpose the YMCA will be unable to process Your Agreement. 

(c) You have the right to access and alter personal information protecting yourself in accordance with the Commonwealth Privacy Act (Amended 2001). Full details of the YMCA Privacy Policy can be obtained on request at the Centre or online at https://victoria.ymca.org.au/privacy-policy

15. RECREATIONAL WAIVER ACKNOWLEDGEMENT 

(a) By agreeing to this Agreement, You acknowledge and agree that You accept the following:- 

(i) Your access to and participation in the Activities offered by YMCA may involve significant risk. The risks involved may result in personal injury, death or loss of property. Prior to undertaking any Activities offered by YMCA, You should ensure You are aware of all the risks involved and the risks associated with any health conditions You may have.

(ii) By accepting the recreational waiver prompt via the Customer Portal when You accept this Agreement with Us and additionally set out in this clause 15, You acknowledge, agree and understand that participation in the Activities offered by YMCA may involve risk. You agree and undertake any such risk voluntarily. 

(iii) If You or Your parent or guardian refuse to agree to the waiver prompt, YMCA may in its absolute discretion refuse to allow You to participate in the Activities.  

(iv) If You are under 18 years of age, Your parent or legal guardian (Guarantor) agrees to guarantee and provide an indemnity for all of Your obligations under this Agreement and release as provided in clause 15(J).

(v) By accepting the recreational waiver prompt via the Customer Portal when You accept this Agreement with Us, You are additionally agreeing that your rights to sue YMCA under the Australian Consumer Law and Fair Trading Act 2012 (VIC) 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 in this clause 15.  

Your Rights: 

(b) Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that YMCA is required to ensure that the recreational services it supplies to You:-

(i) Are rendered with due care and skill; and

(ii) Are reasonably fit for any purpose which you, either expressly or by implication, make known to YMCA;  and

(iii) Might reasonably be expected to achieve any result you have made known to YMCA.

(c) Under section 42 of the Fair Trading Act 1987, YMCA ,as the supplier of recreational services, is entitled to ask You to agree to exclude, restrict or modify YMCA 's liability for any personal injury suffered by You or another person for whom or on whose behalf You are acquiring the services (a third party consumer).

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 Y'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. 

Excluding, restricting or modifying Your Rights: 

(d) By entering into an Agreement with Us, You will be agreeing to exclude, restrict or modify YMCA s liability with the result that compensation may not be payable if You or the third party consumer suffer personal injury.

(c) You do not have to agree to exclude, restrict or modify Your rights by however, this will mean You are not eligible to use the Facility in accordance with this Agreement. YMCA may refuse to provide You with services if You do not agree to exclude, restrict or modify Your rights by accepting the terms set out in this clause 15.

(d) Even if You accept the terms in this clause 15, You may still have further legal rights against YMCA. 

(e) A child under the age of 18 cannot legally agree to exclude, restrict or modify his or her rights.

(f) A parent or guardian of a child who acquires recreational services for the child cannot legally agree to exclude, restrict or modify the child's rights.

(g) Under 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 Agreement.

(h) You agree that other than where YMCA has engaged in reckless conduct (being conduct that satisfies section 22(3) of the Australian Consumer Law and Fair Trading Act 2012 (Vic)),  YMCA will not have any liability for any:

(i) death;

(ii) physical or mental injury (including the aggravation, acceleration or recurrence of such injury);

(iii) the contraction, aggravation or acceleration of a disease; or 

(iv) the coming into existence, the aggravation, acceleration or the reoccurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to You:

(v) that is or may be harmful or disadvantageous to You or the community; or 

(vi) that may result in harm or disadvantage to You or the community.

Agreement to exclude, restrict or modify Your rights:-

You agree that the liability of YMCA for any personal injury that may result from the supply of the recreational services that may be suffered by You (or a person for whom or on whose behalf You are acquiring the services) is excluded.

For the purposes of this clause 15 in respect of Victoria:-

Personal injury means—

(a) an injury of a natural person (including the aggravation, acceleration or recurrence of an injury of the individual); or

(b) the contraction, aggravation, acceleration or recurrence of a disease of a natural person; or

(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to a natural person that is or may be harmful or disadvantageous to, or result in harm or disadvantage to—

(i) the person; or

(ii) the community. 

Injury means any physical or mental injury.

Recreational services means services that consist of participation in—

(a) a sporting activity or similar leisure-time pursuit; or

(b) any other activity that—

(i) involves a significant degree of physical exertion or risk; and

(ii) is undertaken for the purposes of recreation, enjoyment or leisure.

IMPORTANT 

By entering into this Agreement, You (and if You are under the age of eighteen, Your Guarantor), acknowledge and agree that You have read this clause 15 before You access or participate in any Activities offered by or through Us.

For the purposes of this clause 15, any reference to YMCA  also includes a reference to YMCA’s employees, officers and agents.

You (and if You are under the age of eighteen, Your Guarantor) acknowledge and agree that:

A. You will only perform the Activities in accordance with Your level of ability; 

B. You do not suffer any significant health issues that may impact your ability to participate in the Activities;

C. You accept and voluntarily assume all risks associated with the accessing and participating in the Activities (including known and unknown risks, not limited to, physical trauma, strains, bruises, sprains, muscle tears, broken bones, cuts and other serious personal injury such as, cardiac injuries and heart attacks, permanent disability, paralysis and death, as well as damage to or loss of personal property, all of which may be caused by Your own actions or inactions or the actions or inactions of others and the conditions in which these activities takes place, or YMCA 's gross negligence; 

D. to the extent permitted by law, You waive any rights that You may have to make any claim against  YMCA in connection with Your access to and participation in the Activities, and release YMCA from any claims, liabilities, loss and damage in connection with Your attendance at or participation in the Activities including in respect of death or injury;

E. You agree to indemnify  YMCA and its employees, officers and agents against all or any claims, loss, liability, damage or expense (including legal fees) incurred by  YMCA in connection with attendance at or participation in the Activities, however caused. Your liability will be reduced to the extent  YMCA 's reckless conduct caused or contributed to the loss;

F. to the extent that the Activities constitute "recreational services" under s 139A(2) of the Competition and Consumer Act 2010 (Cth) You agree that other than where YMCA has engaged in reckless conduct, YMCA will not have any liability for any death, physical or mental injury (including the aggravation, acceleration or recurrence of such an injury); or the contraction, aggravation or acceleration of a disease or the coming into existence, the aggravation, acceleration or the reoccurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to you that is or may be harmful or disadvantageous to you or the community or that may result in harm or disadvantage to you or the community;  

G. subject to item J below, nothing in this clause 15 applies to the extent that it would have the effect of excluding or limiting any non-excludable rights You may have under the Competition and Consumer Act 2010 (Cth) or otherwise under law; 

H. the terms in this clause 15 are accepted by You and are in favour of YMCA;  

I. for the avoidance of doubt, any releases in this document are intended to exclude Your rights under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law and all other rights which may legally be excluded;

J. the Guarantor to the extent permitted by law or as otherwise specified in this document:

(a) and subject to clause 15(J)(d), acts as Your Guarantor and unconditionally and irrevocably guarantees the performance of all of Your obligations under this clause 15;

(b) and subject to clause 14(J)(d), indemnifies YMCA against any loss You suffer in relation to the performance or non-performance of Your obligations under this clause 14;

(c) waives and excludes all rights on Your behalf that You may have against YMCA  in respect of any claim in respect of injury or death or any other loss, damage or claim suffered or incurred by You arising from or in connection with participation in the Activities;

(d) shall be entitled to assert all rights, defences, limitations and exclusions that You are entitled to under this clause 15 (or would have been entitled to under this clause 15 if it were enforceable against You or where not enforceable), including any set-off or counterclaims that You are (or would have been) entitled to assert under this clause 15, but excluding any defences arising from the invalidity, unenforceability or illegality, in whole or in part, of any of this clause 15 (including any unenforceability against You, or any other documents creating, representing or evidencing your obligations, or defences arising from the bankruptcy or other similar proceeding affecting You (if relevant).

16. GUARANTOR ACCEPTANCE 

If the Customer is a Minor (Minor Customer):

(a) the Minor Customer acknowledges that it has read and understood this Agreement and to be bound by its terms; and

(b) the Guarantor:

(i) acts as the Minor Customer's guarantor in relation to all of the Minor Customer's obligations under the Agreement while the Customer is a Minor; and

(ii) indemnifies YMCA against any loss suffered as a result of the Minor Customer's breach of this Agreement.

I, (and if I am under the age of 18 years of age, my Guarantor) acknowledges, by accepting this Agreement, that I / my Guarantor agree to the above terms and conditions.