KFAC Terms and Conditions
1. Definitions & Interpretation
- In these Terms & Conditions:
- “Agreement” means the agreement between the School and KFAC relating to the provision of the Services at the Site in accordance with these Terms and the Booking Form, and includes the terms set out in our Policies;
- “Arrival Date” means the first date of your Booking, being the date that the School is booked to arrive at the Site;
- “Booking” means a booking by you for the provision of our Services;
- “Booking Form” means the booking form and any other documents agreed to at the time of the booking for the provision of our Services and any variation thereto agreed to in writing by us;
- “Cancellation” means the cancellation of the Booking and “Cancel” has a similar meaning;
- “Claim” means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise);
- “Code Red Day” means a day on which the location or en-route to the location where the Site is situated is declared to be a Code Red Day as published on the VicEmergency, CFA and or Bureau of Meteorology websites;
- “Deposit” means the amount equal to 25% of the Price or $500, whichever is the greater, and includes the non-refundable administration fee;
- "Force Majeure Event" means any event beyond the control of the affected party, including but not limited to:
- a declaration by a government authority that has the effect that the Site cannot be used by the School as at the Arrival Date;
- fire, explosion, flood, earthquake, cyclone, Code Red Day, pandemic, epidemic or natural disaster;
- war, revolution, outbreak of hostilities, riot, civil disturbance, acts of terrorism or any other unlawful act against public order or authority;
- theft, malicious damage, strikes, lock-outs, or industry action of any kind;
- power failure, failure of telecommunications lines, failure or breakdown of plant machinery or vehicles;
- in respect of us, the death or disablement of an employee essential to the performance of the Services;
provided however that an event is not a Force Majeure Event if the party seeking to rely upon it was aware, or should have been aware, of the event occurring prior to making the Booking and or if the party did not take reasonable steps to avoid the event or the circumstances giving rise to the event;
- “Guests” means your Personnel and guests who attend at the Site during the Booking period;
- “KFAC”, “we” and “us” means Frenchco Pty Ltd (ACN 118 105 623) of 1419 Whittlesea-Yea Road, Kinglake West, Victoria as trustee for the French Family Trust (ABN 62 640 579 029) trading as Kinglake Forest Adventures Camp;
- “Loss” means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any Claim.
- “Materials” means all goods and materials supplied or to be supplied or provided (if any) to or for the School and its Personnel in accordance with the Booking Form;
- “Non-refundable administration fee” means the sum of $500, and it is agreed that this represents a genuine estimate of our costs in relation to administration processes related to the Booking;
- “our Policies” means the policies, if any, that we provide to you and or that are published on our website from time to time;
- “Party” means a party to this Agreement and includes you and us;
- “Payment Schedule” means the schedule of payments (if any) in relation to the Price as set out in the Booking Form;
- “Personal Information” has the same meaning given to it in the Privacy Act 1988 (Cth);
- “Price” means the total price for the provision of the Services as per the Booking Form together with any additional fees or amount payable by you to us;
- “Representatives” means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person;
- “School”, “you” and “your” means the School named in the Booking Form;
- “School Personnel” and “your Personnel” means all School staff, students, employees, contractors and or invited guests who attend the Site and includes the School’s Representatives;
- “Services” means the services and accommodation to be provided for you at the Site under this Agreement as set out in the Booking Form;
- “Site” means the camp operated by KFAC at 1419 Whittlesea-Yea Road, Kinglake West, Victoria, including the improvements, facilities and equipment at the property and adjacent locations noted on Parks Victoria Tour Operator Licenses and Hancocks Plantations MOUs;
- “these Terms” means these terms and conditions.
- No rule of construction will apply to a clause to the disadvantage of a party to this Agreement merely because that party put forward the clause or would otherwise benefit from it.
- A reference to:
- a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
- a person includes the person's legal personal representatives, successors, assigns and persons substituted by novation;
- any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
- an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation.
- Headings do not affect the interpretation of these Terms.
- The School is deemed to have agreed to these Terms upon making the Booking.
- We shall use our best endeavours to provide the Services in accordance with the Booking Form on the dates and in the manner as agreed between you and us.
- In providing the Services, we shall:
- be honest and diligent and provide the Services;
- maintain reasonable ethical, professional and technical standards;
- not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person; and
- in relation to any Personal Information of any of your Personnel, comply with:
- the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner; and
- You acknowledge that on days of arrival at or departure from the Site there may be other groups at the Site and we agree that we shall use reasonable endeavours to minimise interaction between the groups.
- The details and nature of the Services to be provided by us may only be varied by a variation in writing and signed by us.
- We reserve the right to correct any obvious errors in relation to the Booking Form, whether technical, typographic or otherwise.
3. Use of the Site
- You must:
- ensure that during the Booking period the Site is used by the School and your Personnel at all times in a proper, professional and responsible manner, in compliance with all applicable laws and that that the Site is kept clean and tidy;
- ensure that all of your Personnel who supervise, train, coach or instruct any activity at the Site have obtained and hold current recognised qualifications in relation to the particular activity that allows them to supervise, train, coach or instruct in that activity and that they are qualified in first aid;
- promptly pay for the cost of any repairing or replacing any item or equipment at the Site that is damaged by the School or your Personnel;
- ensure that your Personnel use suitable safety equipment at all times whilst undertaking any activity at the Site;
- have child protection protocols in place in accordance with applicable legislative requirements; and
- ensure that the Site and all equipment at the Site is used by you and your Personnel in a safe and lawful manner and in accordance with instructions, procedures and Policies.
- You must pay:
- the Deposit at the time of making the Booking; and
- the balance of the Price no later than 10 days prior to the Arrival Date.
- You must also pay to us any additional amounts due to us on account of any variations relation to the provision of the Services or any other clause of this Agreement upon an invoice being provided to you.
- You shall be liable for all taxes, fees and charges imposed by local authorities and government bodies, including all GST, in relation to the supply of the Services and/or the provision of Materials (if any) and you must pay all such amounts to us upon request.
- If you default in payment of any monies payable to us by the due date you must pay interest to us on the amount overdue at the rate of 10% per annum. All interest charge must be paid on demand.
- You must pay all reasonable expenses properly and necessarily incurred by us in the course of providing the Services, provided that we obtain your consent before incurring the expenses and provide you with documentation relating to the expenses incurred.
- At the time of the Booking you shall endeavour to provide us with an accurate estimate as to the number of Guests who shall attend our Site during the Booking period.
- If your estimate as to the number of Guests who shall attend our Site during the Booking period changes, who shall promptly notify us in writing.
- If the number of Guests who attend our Site exceeds the number estimated by you at the time of the Booking, and if as a result the size of a group exceeds 16 participants, we shall create an additional group and use our reasonable endeavours to provide an additional facilitator, and your Guests shall be balanced across the groups, and you agreed to pay to us an additional fee on account of the additional group.
- If the number of Guests who attend our Site is less than the number estimated by you at the time of the Booking, and if as a result the size of a group falls below 10 participants, that group shall be dissolved, and the participants shall be distributed to other groups. If this occurs, we will provide an amended invoice with a revised fee based on an applicable savings in expenses we incur.
6. Cancellation by you due to a Force Majeure Event
- If you notify us in writing that you request to cancel a Booking due to your School and or your Personnel being prevented from attending the Site and using our Services on account of a Force Majeure Event, you must provide us with a copy of all documents necessary to substantiate the basis for your request for cancellation of the Booking including all documents relevant to the reasons given for the request for the cancellation relating to the Booking dates (“a Force Majeure Cancellation Request”).
- If you make a Force Majeure Cancellation Request and we are satisfied that the documents substantiate the request, there will be no Cancellation fees levied and it is agreed that a ‘share the burden’ approach will apply in relation to the Deposit and that:
- 50% of the Deposit, and any additional amounts paid by you, will promptly be refunded to you; and
- 50% of the Deposit shall be forfeited as a genuine agreed estimate of our loss provided however that if your School makes another booking with us in the same calendar year, the amount that would otherwise be forfeited shall instead be applied to that subsequent booking (assuming it proceeds and we are paid all monies otherwise due relating to the subsequent booking), but that otherwise it shall be retained by us.
- If you make a Force Majeure Cancellation Request and we are not satisfied that the documents substantiate the request, then the full Deposit shall be forfeited and retained by us.
- We agree to act reasonably in deciding whether or not we are satisfied that any documents provided substantiate any Force Majeure Cancellation Request.
7. Cancellation by you for other reasons
- This clause applies if a Booking is cancelled for a reason other than your School being prevented from attending the Site and using our Services on account of a Force Majeure Event.
- If you cancel a Booking you:
- must notify us in writing of your cancellation;
- provide us with as much notice as possible so that we have an opportunity to re-book the dates related to the cancelled Booking with another school or group.
- If you cancel a Booking and we re-book the dates related to the cancelled Booking with another school or group of a similar size, we shall refund to you the Deposit and any other fees paid in advance less an administrative fee of $500 on account of administration costs incurred by us. We will proactively promote rebooking.
- If you cancel a Booking and we do not re-book the dates related to the cancelled Booking with another school or group, then:
- if you cancel a Booking less than 7 days prior to the Arrival Date then a cancellation fee of 75% of the Price must be paid by you to us on the date of the cancellation on account of the agreed estimate of the costs and loss suffered by us, including the costs of food purchased, staff and contractor costs and forgone return on investment opportunity costs;
- if you cancel a Booking more than 7 days but less than 6 months prior to the Arrival Date then a cancellation fee of 70% of the Price must be paid by you to us on the date of the cancellation on account of an estimate of the costs and loss suffered by us, including staff and contractor costs and forgone return on investment opportunity costs; and
- if you cancel a Booking more than 6 months prior to the Arrival Date then a cancellation fee of 32% of the Price must be paid by you to us on the date of the cancellation on account of an estimate of the costs and loss suffered by us, including forgone return on investment opportunity costs.
- Time is of the essence of this Agreement.
- If you default in payment of monies due to us or breach any clause or obligation relating to this Agreement we may by notice in writing to you cancel the Booking and sue for the monies owing without affecting our other rights. If the Booking is cancelled pursuant to this clause all money unpaid under this Agreement becomes immediately payable.
- A party who breaches this Agreement must pay the other party on demand:
- compensation for any reasonably foreseeable cost, loss or damages incurred or suffered by the other party resulting from the default; and
- interest on any money overdue during the period of default at a rate 2% higher than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) as at the date of the default.
without affecting the rights of the offended party.
- The expressions “breach” and “default” are interchangeable in these Terms.
9. Cancellation by us other than due to breach
- If we cancel a Booking for a reason other than a breach of this Agreement, we will:
- endeavour to provide you with as much notice as possible;
- provide a full refund of all money paid by you in relation to the Booking;
- use our reasonable endeavours to locate a suitable alternate venue for you to book.
10. Risk Acknowledgment, Indemnity and release
- By attending KFAC programs and participating (herein referred to as "the Activity") you and any participant listed in the attendance list acknowledge and agree that the Activity conducted by KFAC is in the nature of an "extreme sport" and as such, acknowledge that the Activity involves a number of inherent risks.
- By signing this Agreement, I/we understand that not all risks can be predicted due to the nature of the Activity. I/we acknowledge and agree that I/we have undertaken the activity freely, voluntarily and absolutely at my/our own risk with a full appreciation of the nature and extent of all risks involved in the activity.
- I/we acknowledge that I/we will be required to physically exert myself/ourselves and that possible injury may occur due to the nature of the Activity. Therefore I/we acknowledge I/we must remain within my/own personal limitations.
- I/we acknowledge that I am/we are participating in an Activity that may be high above ground level in a forest environment and that at ground level, the Activity may involve narrow forest pathways. I/we understand that appropriate protective equipment and skill assessment will be provided.
- I/we understand that there are age, height and weight restrictions for some Activities and the staff of KFAC have discretion to allow the participant to attempt an activity outside of these restrictions based on the participant's individual capabilities and weather conditions.
- I/we agree to abide by rules and instructions given by KFAC and its personnel. If I/we suffer any harm on Activity, I/we will not hold KFAC or its personnel legally responsible for any injuries suffered (to the full extent permitted by law). These rules will be made clear by KFAC prior to undertaking the Activity.
- I/we understand there are weight limits for climbing, flying fox and slackline activities up to 120 kg.
- I/we are not affected by drugs and alcohol and that KFAC retains the right to refuse participation, if they determine, in absolute discretion, that I/we may be affected by drugs or alcohol. I understand that participation in the Activities after the consumption of drugs or alcohol will remove any and all liability and responsibility from KFAC and its personnel.
- I agree that the images taken of any participant listed below whilst on the Activity and within the grounds of the program may be used for publicity purposes. It is understood by both parties that these images are for the sole use of publicity in the form of, brochures, pamphlets, projected images and on screen and will under no circumstances be used for any other purpose. If any participants are to be excluded from this Model Release, written advice needs to be provided to KFAC prior to the program delivery.
- I/we understand KFAC requires all relevant information about my health and capabilities including any pre-existing or previous injuries or medical conditions that may affect either my/our safety or that may be exacerbated by participation in the Activity and that if I/we fail to provide this information KFAC personnel will not be able to take appropriate action to limit the risk of harm. If applicable, please provide details of the condition, injury or impairment.
Fair Trading (Recreational Services) Regulations 2004 (SR NO 34 OF 2004)
Warning under the Fair Trading Act 1999
- Under the provisions of the Fair Trading Act 1999 several conditions are implied into contracts for the supply of certain goods and services. These conditions mean that the supplier named on this agreement is required to ensure that the recreational services it supplies to you are-
- rendered with due care and skill; and
- fit for the purpose for which they are commonly bought as it is reasonable to expect in the circumstances; and
- reasonably fit for any particular purpose or might reasonably be expected to achieve any result you have made known to the supplier
- Section 32N of the Fair Trading Act 1999, the supplier is entitled to ask you to agree that these conditions do not apply. If you sign this agreement, you will be agreeing that your rights to sue the supplier under the Fair Trading Act 1999 if you are killed or injured because the services were not rendered with due care or skill or they were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in 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" is defined in the Fair Trading (Recreational Services) Regulations 2004.
- You or your delegate will be supervising participants and you will accept responsibility for their safety as per any instruction provided by KFAC. If your careless act, omission or negligence results in harm to any participants, you will take full responsibility for your actions and will not hold KFAC concurrently responsible and will fully indemnify KFAC and its personnel against any Liability.
- By signing this agreement I expressly state that I have read and understood this waiver, that I have legal capacity and I warrant that all of the information provided is true and correct. Any persons listed on the attendance list will abide by the above rules and by KFAC and its personnel.
11. Intellectual Property
- You acknowledge and agree that we shall retain ownership of all intellectual property rights and other proprietary rights in relation to the Services and all designs, documents and methods of working in relation to the Services.
- Your School must have during the period of the Booking its own public liability insurance policy in place with a minimum limit of indemnity of $10,000,000 with a reputable insurer.
If requested, you must provide us with evidence of such insurance.
- You shall ensure that you and your Personnel do not do or allow anything to be done which may invalidate or prejudice any insurance policy relation to the Site and or the Schools’ use of the Site.
- Termination or cancellation of this Agreement shall not affect any rights or liabilities that the parties have accrued under it prior to such termination.
- Every provision of this Agreement is independent of the others. Any provision which is prohibited or unenforceable will be deemed removed to the extent of the prohibition or unenforceability without invalidating the remaining provisions.
- This Agreement shall be governed by the law of the State of Victoria.