Terms

Softball Australia

SOFTBALL AUSTRALIA

SOFTBALL AUSTRALIA LIMITED (SA)

TERMS AND CONDITIONS OF MEMBERSHIP AS AT 24/07/2024

THIS IS AN IMPORTANT DOCUMENT. YOU SHOULD READ IT CAREFULLY BEFORE COMPLETING YOUR MEMBERSHIP APPLICATION. UPON SUBMITTING YOUR MEMBERSHIP APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. YOU COVENANT AND WARRANT THAT YOU ARE EITHER 18 YEARS OF AGE OR OLDER OR THAT YOU HAVE AGREED TO THESE TERMS AND CONDITIONS AS THE PARENT OR LEGAL GUARDIAN OF AN APPLICANT UNDER 18 YEARS OF AGE. NOTE IF THE APPLICANT IS UNDER 18 YEARS OF AGE THESE TERMS AND

CONDITIONS MUST BE AGREED BY THE APPLICANT’S PARENT OR GUARDIAN.

IN CONSIDERATION OF MY APPLICATION FOR MEMBERSHIP BEING ACCEPTED I ACKNOWLEDGE AND AGREE TO THE FOLLOWING:

Membership

I declare that I am not aware of any reason why I should not be admitted to membership of SA. I assume exclusive liability for my application and for the use that I shall make of the membership if it is granted.

Rules of membership and participation

I have read, understood and agree to abide by all by-laws and policies as adopted by SA including, SA’s National Integrity Framework Policies.
I agree and undertake to be bound by and abide by the Constitution of SA.
I will participate in Softball activities, competitions or events (Softball Events) in a fair and sporting manner. I shall submit to disciplinary measures taken against me and shall take any appeals and litigation before the authorities provided for in the regulations of those bodies.

Risk Warning

I acknowledge that Softball Events are inherently dangerous and may involve risk. I recognise and understand that there are risks specifically associated with Softball Events which include, but are not limited to, collisions and contact with equipment and other participants, sudden and unexpected changes in weather and physical exertion. I acknowledge that accidents can and often do happen which may result in injury or death, or my property being damaged. Prior to undertaking any Softball Event, I acknowledge that I am aware of the risks involved, including those risks associated with any health condition I may have.
By agreeing to these terms and conditions, I acknowledge, agree, and understand that participation in any recreational services provided by SA may involve risk. I agree and undertake any such risk voluntarily and at my own risk. I acknowledge that the assumption of risk and warning above constitutes a 'risk warning' in accordance with relevant legislation.

Waiver

I acknowledge that it is possible for a supplier of recreational services or recreational activities to ask me to agree that statutory guarantees under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) do not apply to me (or a person for whom or on whose behalf I am acquiring the services or activities).
I acknowledge that by agreeing to these terms and conditions, I will be agreeing that my rights (or the rights of a person for whom or on whose behalf I am acquiring the services) to sue the supplier in relation to recreational services or recreational activities that I undertake because the services or recreational activities provided were not in accordance with the guarantees are excluded, restricted or modified as set out in Schedule 1 to these terms and conditions.
To the extent of any liability arising, the liability of SA will, at the discretion of SA, be limited in the case of goods, to the replacement, repair or payment of the cost of replacing the goods and in the case of services, the resupply of the services or payment of the cost of having the services supplied again.

Disclosure

I declare that I am medically and physically fit and able to participate in Softball Events. I acknowledge that I must, and I agree that I will, disclose any pre-existing medical or other condition that may affect the risk that either I or any other person will suffer injury, loss or damage prior to any Softball Events.

I acknowledge that SA relies and will rely on information provided by me and that all such information is accurate and complete.

I agree to report any accidents, injuries, loss or damage I suffer during any Softball Event to SA before I leave any relevant venue.

I agree that SA may in its absolute discretion deny me entry to a Softball Event if it considers I am not medically, mentally and physically fit and able to participate (or continue to participate) in Softball Events without unreasonable risk to myself or others. SA is in no way liable if it chooses not to exercise its discretion under this clause.

Safety

I understand and acknowledge the dangers associated with the consumption of alcohol or any mind-altering substance before or during any Softball Event, and I accept full responsibility for injury, loss or damage associated with the consumption of alcohol or any other mind-altering substance.

I agree to follow any rules set by SA in connection with any Softball Events. In particular, I have been advised to wear approved safety equipment at relevant times during Softball Events. If I fail to comply with SA's rules and/or directions, I will not be permitted to participate or continue to participate in a relevant Softball Event and if I am excluded no refund will be given.

Release and indemnity

In consideration of SA accepting my membership application I, to the extent permitted by law:

release and will release SA from all Claims that I may have or may have had but for this release arising from or in connection with my participation in Softball Events;
release and indemnify SA against any Claim which may be made by me or on my behalf for or in respect of or arising out of my death whether caused by the negligence or breach of contract by SA or in any other manner whatsoever; and
indemnify and will keep indemnified SA to the extent permitted by law in respect of any Claim by any person:
1. arising as a result of or in connection with my membership or my participation in Softball Events;
2. against SA in respect of any injury, loss or damage arising out of or in connection with my failure to comply with SA's rules and/or directions;

save that the above releases and indemnities shall not apply to the extent that the loss, damage or injury that is the subject of the Claim is directly caused or contributed to by the gross negligence of SA.

Insurance

I understand that all SA state associations participate in the SA National Insurance Program (Program), and their affiliated associations and clubs have $20 million public liability insurance cover. All claims are handled by V-Insurance (Please contact V-Insurance on 02 8599 8660 or www.vinsurancegroup.com/softball/). I fully understand that the Program includes a limited level of cover in the event of personal Injury. I understand that only NON-MEDICARE medical expenses can be claimed. Due to current Commonwealth Legislation, if the medical service provided is eligible for a Medicare rebate of any value, any resultant GAP in costs cannot be covered by the Program. In relation to the limited insurance arranged by SA through the Program I acknowledge, understand and accept as follows:

that insurance taken out by SA may not provide me with full indemnity for loss, damage or injury that I may suffer during my participation in the Softball Events, and that I may have to pay the excess if a claim is made on my behalf;
my own insurance arrangements are ultimately my responsibility and I will arrange any additional coverage (including but not limited to specific personal accident coverage) at my own expense after taking into account SA's insurance arrangements and my own circumstances; and
SA may renew, vary or update its insurance policy and/or insurance provider during the period of my membership and that SA reserves the right to amend, increase or decrease the level of benefits payable at any time and in its sole discretion.

Use of image

Unless, through my application for membership, I have expressly notified Softball Australia to the contrary, I grant permission to Softball Australia to commission, take, and/or use any broadcast, film/video, audio or photograph material of me during my participation if Softball Events,

I acknowledge and agree that such material is and will be owned by SA and unless, through my application for membership, I have expressly notified Softball Australia to the contrary, that SA or other third parties may use such material for promotional or other purposes without my further consent being required.

20. I further acknowledge and agree that SA is not responsible for any:

a. photographs or other electronic images of me captured by persons who are not an official or endorsed representative of SA; and

b. inadvertent use of any image of me by SA

Privacy

I understand that the personal information I have provided in my membership application is necessary for the objects of SA and is collected, used and disclosed in accordance with the SA Privacy Policy (this policy can be found at Softball Australia Privacy Policy). SA may use and disclose my personal information for the purposes of conducting and administering Softball Events, providing me with member services or promotional material, complying with legal obligations or otherwise in accordance with the SA Privacy Policy. SA may share my information with third parties such as:

affiliates and other organisations involved in Softball Events in Australia;
companies engaged by SA to carry out functions and activities on their behalf including direct marketing;
government agencies; and
SA's professional advisers, including their accountants, auditors, lawyers and insurers.

Except for the above mentioned purposes, I understand that my information is not generally disclosed to anyone outside Australia. I acknowledge that SA’s policies contain information about how I may access and request correction of my personal information held by SA or make a complaint about the handling of my personal information, and provides information about how a complaint will be dealt with by SA. I understand that my membership application may be rejected if the information is not provided. I understand that if I do not wish to receive promotional material from SA's sponsors and third parties that I must advise SA via email or telephone or via the specific opt-out procedures provided in the relevant communication.

Bar to proceedings

I acknowledge and agree that membership of SA gives rise to a contract between me and SA and that these terms and conditions form part of that contract. I further acknowledge and agree that I will not commence any proceedings against SA until I have exhausted all avenues of appeal or inquiry available to me under SA’s rules framework. SA may plead this contract as a bar to proceedings now or in the future commenced by or on behalf of me or by any person claiming through me. I acknowledge that where I commence proceedings against SA, I:

will commence those proceedings in the courts of the jurisdiction in which any incident occurs;
waive any right to object to the exercise of such jurisdiction;
will, where I seek to commence proceedings in another jurisdiction from where any incident occurs, consent (if required by SA) to move those proceedings to the jurisdiction in which any incident occurs including consenting to any application made by SA to remove the proceedings to the jurisdiction in which any incident occurs;
will pay the costs of any application made by SA under paragraph 20(c) and will consent to any application for security of costs made at any time by SA; and
consent to paying SA's legal defence costs of the proceedings (on a solicitor client basis) where SA successfully defends the proceedings.

Governing Law

The governing law of this agreement is the law of Victoria (Jurisdiction). I irrevocably and unconditionally consent and submit to the jurisdiction of the courts of the jurisdiction in which any incident occurs and waive any right to object to the exercise of such jurisdiction.

Entire Agreement

This agreement (and the documents to which it refers) constitutes the entire agreement between the parties and supersedes all other agreements, understandings, representations and negotiations in relation to Softball Events.
To the extent that any clause of this agreement is void or unenforceable it is severable and does not affect the remaining provisions of the agreement.

Successors and Assigns

The parties acknowledge and agree that this agreement binds them and their legitimate and permitted successors and assigns.

Cancellation of Membership & Refund Policy

I understand and accept that I can cancel my membership with SA at any time by providing notice in writing to SA. Refunds of membership fees will only be offered in limited circumstances at SA's sole and absolute discretion in line with the SA Refund Policy. Please note that each particular circumstance is unique and the exercise of discretion by SA in one instance does not create the obligation to exercise discretion again in another. If SA exercises its discretion to refund a membership fee, the refund of money owed (less any applicable cancellation fee) will be arranged with the member.
In these terms:

Softball Australia or SA means and includes:
1. Softball Australia Ltd (ABN 72 092 181 318), its subsidiaries, directors, officers, servants, agents and members including, but not limited to, its affiliated State Associations (as defined in the SA constitution) and clubs affiliated with those State Associations (as defined in the SA constitution), and
2. all the above Softball entities’ respective directors, officers, members, servants or agents.
Claim means and includes any action, suit, proceeding, claim, demand, damage, penalty, cost or expense however arising including but not limited to negligence, BUT does NOT include:
1. a claim against SA by any person expressly entitled to make a claim under a SA insurance policy;
2. a claim against SA under any right expressly conferred by its constitution or regulations.
Softball Events means performing or participating in any capacity, including as a Member, in any authorised or recognised SA activity.

SCHEDULE 1

For recreational services or activities provided throughout Australia:

For recreational services to which the Australian Consumer Law (Commonwealth) applies:

death;
physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
the contraction, aggravation or acceleration of a disease;
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:
that is or may be harmful or disadvantageous to me or the community;
that may result in harm or disadvantage to me or the community, that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) resulting from the supply of recreational services or recreational activities;

is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.

For recreational services or activities provided in NSW or WA:

For recreational services or recreational activities to which the Australian Consumer Law (New South Wales) and Australian Consumer Law (Western Australia), applies:

By submitting this form, I agree that the liability of Softball Australia in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law) and recreational activities (as that term is defined in the Civil Liability Act 2002 (NSW)) or Civil Liability Act 2002 (WA), as applicable) for any:

death;
physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
the contraction, aggravation or acceleration of a disease;
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:
1. that is or may be harmful or disadvantageous to me or the community;
2. that may result in harm or disadvantage to me or the community, that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) resulting from the supply of recreational services or recreational activities;

is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.

For recreational services or activities provided in Victoria:

For recreational services to which the Australian Consumer Law (Victoria) applies:

Warning under the Australian Consumer Law and Fair Trading Act 2012: Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the suppliers named on this form, Softball Australia, are required to ensure that the recreational services supplied to you:

are rendered with due care and skill; and
are reasonably fit for any purpose which you either expressly or by implication, make known to the supplier; and
might reasonably be expected to achieve any result you have made known to the supplier.

Under section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the supplier is entitled to ask you to agree that these conditions do not apply to you. If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services were not in accordance with these guarantees, 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” 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 2012 (Vic) and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

Exclusion of rights under the Australian Consumer Law (Victoria): By submitting this form, you agree that the liability of Softball Australia for any death or personal injury (as defined in the Australian Consumer Law and Fair Trading Act 2012) that may be suffered by you (or a person from whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services is excluded.

For recreational services or activities provided in ACT, Queensland or Tasmania:

For recreational services to which the Australian Consumer Law (Australian Capital Territory), Australian Consumer Law (Queensland) or Australian Consumer Law (Tasmania) applies:

By submitting this membership application form and declaration, I acknowledge that where I am a consumer of recreational services, as defined by any relevant law, certain terms and rights usually implied into a contract for the supply of goods or services may be excluded. I acknowledge that these implied terms and rights

and any liability of Softball Australia flowing from them, are expressly excluded to the extent possible by law, by this membership application form and declaration. To the extent of any liability arising, the liability of Softball Australia will, at the discretion of Softball Australia, be limited in the case of goods, to the replacement, repair or payment of the cost of replacing the goods and in the case of services, the resupply of the services or payment of the cost of having the services supplied again. For the avoidance of doubt, this exclusion does not exclude liability for recklessness as defined by any relevant law.

For recreational services or activities provided in South Australia:

For recreational services to which the Australian Consumer Law (South Australia) applies:

Your rights: Under sections 60 and 61 of the Australian Consumer Law (SA), if a person in trade or commerce supplies you with services including recreational services), there is:

statutory guarantee that those services will be rendered with due care and skill; and
statutory guarantee that those services, and any product resulting from those services, will be reasonably fit for the purpose for which the services are being acquired (as long as that purpose is made known to the supplier); and
a statutory guarantee that those services, and any product resulting from those services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve the result that the consumer wishes to achieve (as long as that wish is made known to the supplier or a person with whom negotiations have been conducted in relation to the acquisition of the services).

Excluding, restricting or modifying your rights: Under section 42 of the Fair Trading Act 1987 (SA), the supplier of recreational services is entitled to ask you to agree to exclude, restrict or modify his or her 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). If you sign this form, you will be agreeing to exclude, restrict or modify the supplier's liability with the result that compensation may not be payable if you or the third party consumer suffer personal injury.

Important: You do not have to agree to exclude, restrict or modify your rights by signing this form. The supplier may refuse to provide you with the services if you do not agree to exclude, restrict or modify your rights by signing this form.

Even if you submit this form, you may still have further legal rights against the supplier. A child under the age of 18 cannot legally agree to exclude, restrict or modify his or her rights. 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.

Agreement to exclude, restrict or modify your rights: I agree that the liability of Softball Australia for any personal injury that may result from the supply of the recreational services that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) is excluded.

Definitions:

Recreational services are services that consist of participation in

• sporting activity or similar leisure-time pursuit; or

• any other activity that involves a significant degree of physical exertion or risk and is undertaken for the purposes of recreation, enjoyment or leisure.

Personal injury is bodily injury and includes mental and nervous shock and death.

Further information: Further information about your rights can be found at Consumer and Business Services | Consumer and Business Services (cbs.sa.gov.au)

For recreational services or activities provided in Northern Territory:

For recreational services to which the Australian Consumer Law (Northern Territory) applies:

By submitting this form, I agree that the provisions of Part 3.2, Division 1, sub- division B of the Australian Consumer Law (NT) do not apply to the services provided to me, and Softball Australia incurs no liability with respect to death or personal injury for a failure to comply with a guarantee under that sub-division in relation to supply of these recreational services. By signing this document, I acknowledge that I have been made aware of the general effect of this exclusion, restriction or modification, have had a reasonable opportunity to consider whether or not to enter into this contract on that basis and have decided to enter into the contract.