TERMS AND CONDITIONS
1. Defined Terms
1.1 In this Agreement, words importing the singular include the plural and vice versa. References to a party includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity and a reference to a party to this document includes the party’s successors, permitted substitutes and permitted assigns. Any terms used in these Terms and Conditions have the same meaning as in the balance of this Student Enrolment Form.
1.2 In this Agreement:
(a) Agreement means the agreement comprised by this Student Enrolment Form, the Terms and Conditions and the KI Rules, as amended from time to time;
(b) Agreement Date means the first date on which the Student can access the Services pursuant to these Terms and Conditions;
(c) Booking Platform means the booking platform used by Students to make bookings for Online Classes, Workshops and Private Lessons;
(d) Deposit means an amount equal to 50% of the Fee;
(e) Fee means the fees payable to KI at the time of booking, for the provision of the Online Classes, W or Private Lessons as advised by KI from time-to-time;
(f) KI means Kristy Jacinta Richardson trading as Kreate It ABN 30 336 857 711;
(g) KI Rules means any rules made and published by KI from time-to-time;
(h) Online Class means a one-off class in which the Services are provided to the Student by any online or virtual method determined by KI from time to time;
(i) Payment Date means the date or dates on which payment of the Fee is due to be paid by the Student;
(j) Personnel means any employees employed by and/or contractors or subcontractors engaged by KI to provide the Services on behalf of KI;
(l) Private Lesson means a one-off class in which the Services are provided to the Student in person, and may be provided to a group of Students simultaneously;
(m) Provision Date means the date or dates on which the Services are provided by KI to the Student, as advised in advance by KI to the Student;’
(n) Provision Times means the time/s on the Provision Dates during which the Services are provided by KI to the Student, as published in the timetable or as advised in advance by KI to the Student;
(o) Services means the courses, workshops, private lessons or any other class made available to the Student by KI from time-to-time, in accordance with these Terms and Conditions;
(p) Student means the person specified as the Student in Section 1 of this Student Enrolment Form;
(q) Terms and Conditions means these terms and conditions;
(r) Timetable means the timetable published by KI detailing the Provisions Dates and Provision Times, as amended from time-to-time in KI’s sole discretion;
(s) Workshop means a fixed term of recurring classes or one-off courses for those other services specified in Section 3;
2. Provision of the Services
2.1 In consideration of the payment of the Fee, KI agrees to provide the Services to the Student on the Provision Date/s, or on an alternative date/s and time in accordance with this Agreement.
2.2 The scope of Services is strictly limited to those Services specified in this Agreement, unless otherwise agreed between the parties in writing from time-to-time.
2.3 Provided that the Student complies with their obligations under this Agreement, KI agrees to use all reasonable endeavours to provide the Services in accordance with the Provision Dates and Provision Times, or at a reasonable alternative date and time.
2.4 KI may make changes to the Provision Dates and Provision Times during which Services are delivered at any time prior to the delivery of the Services on that specific Provision Date or at that specific Provision Time, in KI’s sole discretion. KI may determine the Provision Dates on which Services are delivered in consideration of any factor relevant to KI, including (but not limited to) public holidays.
2.5 KI warrants that they and their Personnel will provide the Services using due care and skill, as expected from a comparable service provider.
2.6 KI warrants that all Personnel delivering the Services on KI’s behalf will hold a current working with children ‘blue card’ or equivalent, if they are providing the Services to children.
2.7 The Student will be required to promptly provide all reasonable information required by KI(the Student Information) in order to allow KI to provide the Services. The Student acknowledges and agrees that if the Student delays, or fails to, supply KI with the Student Information, then KI may be unable to perform the Services and/or perform the Services properly in accordance with any specific Provision Date or Provision Time or at all. KI will not be liable for any delay or other issue in relation to the provision of Services caused by the Student’s failure to comply with the obligations contained in this clause.
2.8 KI may (in their sole discretion) refuse to provide the Services to the Student.
2.9 The Services are strictly non-transferable and KI will not provide the Services to anyone other than the Student, in accordance with this Agreement.
3.1 Students may be required make a booking in advance of the Provision Date and Provision Time for the Services via the Booking Platform or via KI’s website or other online platforms.
3.2 The Student is required to comply with any ‘cut off’ times in relation to Bookings as advised by KI, from time-to-time.
4.1 In consideration of KI providing the Services, the Student must pay the Fees on the Payment Dates in the manner and method as determined by KI from time-to-time.
4.2 The Student acknowledges and agrees that:
(a) they may be required to provide KI with valid credit card details, upon request, and they hereby authorise KI to charge their nominated credit card for the Fees as and when required by KI; and/or
(b) they may be required to complete and execute a direct debit form in order for KI to take the Fees by way of direct debit on the Payment Dates. Any such direct debit form will be deemed to form part of this Agreement.
4.3 KI may, in their discretion, require some of the Fees to be paid prior to them providing the Services to the Student.
4.4 In the event that any payment of the Fees fails due to incorrect credit card details or insufficient funds or otherwise KI may:
(a) charge the Student a late payment fee of ten dollars ($10.00) or such other amount as advised from time to time by KI that represents the loss or damage suffered by KI as a result of the Student’s conduct;
(b) immediately cease providing the Services to the Student;
(c) retain any Fees already paid in relation to provision of the Services;
(d) terminate this Agreement; and/or
(e) commence proceedings against the Student in order to collect any outstanding debts owed to KI.
4.5 In respect of any taxable supply made under this Agreement, the Student must pay to KI an amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Student of a valid tax invoice.
5. Cancellation of Services
5.1 If a Student wishes to cancel any Service, they must provide KI with written notice of same at least 48 hours prior to the Provision Date, in which case, the Fee paid by the Student less the Deposit will be refunded to the Student.
5.2 If a Student cancels or withdraws from any of the Services provided by KI within 48 hours of the Provision Date and/or Provision Time, they may not be entitled to a refund of Fees paid unless such cancellation or withdrawal is due to events which are outside of the Student’s control. In which case, KI may request that the Student provide them with evidence to support their request or withdrawal, in which case KI will refund the Fee less the Deposit (if any).
5.3 If a Student is suffering from an illness, or is injured or pregnant and the Student provides KI with at least 48 hours’prior written notice and a medical certificate that is current and valid and provided by a Doctor for the illness, injury or pregnancy to the satisfaction of KI then the Student may cancel their enrolment, and KI may refund the Fee less the Deposit.
5.4 A Student may only transfer or assign their enrolment to another party provided they have first obtained prior consent from KI.
5.5 KI may cancel the Services by providing the Student with reasonable prior notice, in which case KI will refund any Fee paid in advance, unless KI and the Student agree to the provision of the Services on another date and time.
5.6 Unless the Student validly cancels the delivery of the Services in accordance with clause 5.1 to 5.3 above, KI will not be required to refund any Fees paid by the Student.
6. Student Acknowledgements and Obligations
6.1 The Student acknowledges and agrees that:
(a) KI may, in their sole discretion, appoint the Personnel to perform the Services on their behalf;
(b) the Student is in a physical condition which allows them to properly participate in the Services and is not aware of any impediment that may be triggered or worsened by them participating in the Services, except those that they have specifically disclosed to KI;
(c) they participate in the Services and any equipment solely at their own risk;
(d) all Students who are children must be accompanied by a parent and/or guardian at all times;
(e) KI may perform first aid assistance on the Student, where necessary, and if the Student refuses to accept first aid, KI cannot be held responsible in any way whatsoever for the repercussions of that Student not accepting first aid when offered to them by KI;
(f) if first aid is required to be performed on the Student by KI, the Student will complete any documentation as and when required by KI;
(g) the Student will abide by the KI Rules at all times;
(h) the Student will provide all relevant information required for KI to provide the Services to the Student in a timely manner, including any relevant medical information;
(i) if they delay, or fail to, supply KI with the information requested pursuant to clause 2.7 above, then KI may be unable to perform the Services in the agreed time frame or at all;
(j) they will act with the utmost good faith in all dealings with KI;
(k) KI will provide the Services to the Student based solely on information provided by the Student and in accordance with the terms and conditions of this Agreement;
(l) KI makes no representation or warranty as to any particular outcome or result as a result of KI providing the Services;
(m) if the Student becomes aware of anything that may affect the Student’s ability to receive the Services or KI’s ability to provide the Services to the Student, the Student must notify KI in writing and following such notification, KI will notify the Student of the new or varied terms (if any) of this Agreement. Such variations can then be accepted by the Student by:
(i) signing a new Agreement (if KI submits a new Agreement to the Student for signing); or
(ii) otherwise in writing provided to KI; or
(iii) by continuing to receive the Services from KI;
and any variation will always be subject to these Terms and Conditions.
7. Risk and Liability
7.1 The Student acknowledges and understands that use of KI’s Services, facilities and equipment and participation in any activities at the premises which KI operates require varying degrees of physical exertion and/or physical risk which may cause the Student’s death or personal injury. If the Student believes there is a risk to their health by participating or using KI’s Services, facilities or equipment or participating in activities at the premises which KI operates, the Student must inform KI about the risk in writing.
7.2 The Student is responsible for their personal belongings while at the premises which KI operates and KI takes no responsibility for the loss or damage of the Student’s personal belongings.
7.3 The Student warrants that they have advised KI of any medical or physical conditions which they have which may affect their use of the Services, facilities or equipment. It is the Student’s responsibility to update KI regarding any changes to the Student’s condition as soon as they become aware of the change.
7.4 KI accepts no responsibility for any injury or death that results directly or indirectly from the use or misuse of the Services, facilities or equipment by the Student.
7.5 To the fullest extent permitted by law, KI excludes all liability in respect of any prosecution, claim, writ, action, proceeding, suit, demand, cause of action, arbitration, debt, dues, verdict, judgment, loss, cost and expense or other like matter whether present, prospective or contingent, whether arising at law, in equity or under statute and whether or not the facts, matters or circumstances giving rise to those claims are known to the parties at the date of completion of this Student Enrolment Form or on the date/s of delivery of the Services (each a Claim), except for any Claim that is a direct result of KI’s negligent or wilful conduct.
7.6 To the fullest extent permitted by law, the Student releases KI from liability for any Claim except to the extent that the Claim is as a direct result of the negligent or wilful act of KI or its Personnel.
7.7 The Student acknowledges and agrees that KIis not liable to the Student or any other person for:
(a) any loss or damage of any kind that is directly or indirectly caused by or results from the Student’s wrongful, wilful or negligent act or omission; or
(b) any direct, incidental, special or consequential damages, including loss of profits or anticipated profits, even if notified of the possibility of that potential loss or damage.
7.8 The Student indemnifies KI against all Claims arising during or after the term of this Agreement from or in connection with:
(a) damage, loss, injury or death to the extent it is caused or contributed to by the Student’s act, negligence or default; or
(b) anything KI is permitted to do under this Agreement;
unless the Claim arises from the negligence of KI, its Personnel, employees, contractors or agents.
7.9 Subject to clause 7.14,the Student indemnifies KI, its Personnel and their related entities and representatives against:
(a) all losses and expenses they incur (including legal costs on an indemnity basis); and
(b) all liabilities they incur;
directly or indirectly caused by, or resulting from, any breach of this Agreement by or any wrongful, wilful or negligent act or omission by the Student.
7.10 The Student indemnifies KI against any intentional and/or unintentional damage they cause to the premises in which KI provides the Services and/or any of KI’s equipment, facilities or other property.
7.11 KI’s total aggregate liability for all Claims relating to this Agreement is limited to the Fees payable under this Agreement.
7.12 Either party's liability for any Claim relating to this Agreement will be reduced to the extent to which the other party’s negligent or intentional act or omission contributed to the Claim.
7.13 Any representation, warranty, condition or undertaking that would be implied in these Terms and Conditions by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
7.14 Despite clause 7.13, nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Student by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
7.15 To the fullest extent permitted by law, KI’s liability for a breach of a non-excludable condition or warranty is limited to, at KI’s option:
(a) the re-supply of the Services; or
(b) the payment of the cost of having the Services supplied again.
7.16 The Student acknowledges and agrees that this Agreement’s limitations of liability in this clause 7 are essential to KI and KI would not have entered into this Agreement in their absence.
8. Intellectual Property
8.1 The parties acknowledge that existing and future intellectual property rights in any intellectual property created pursuant to, or in any way connected with, the Services or this Agreement (the Intellectual Property), other than the Student Information, is the property of KI and the Student is not permitted to use the Intellectual Property in anyway with without KI’s prior consent.
8.2 The Intellectual Property includes (but is not limited to) the teaching methods adopted by KI, the knowledge, tips and tricks shared by KI, the artwork produced by KI in providing the Services, and any content (including photos, videos and the like) uploaded to KI’s website in connection with or the provision of the Services.
9. Confidential Information
9.1 Each party must not disclose any Confidential Information or suffer or permit it to be disclosed or redistribute to any person or related corporation except:
(a) with the prior consent of the other party;
(b) where the party is required by statute, rule, regulation, judicial process or in connection with any litigation to which it is a party; or
(c) to the party’s legal and financial advisors and bankers where the recipient agrees prior to receipt to keep the information disclosed confidential.
9.2 For the purpose of clause 9.1, ‘Confidential Information’ means all trade secrets and know how and other commercially valuable information of whatever description and in whatever form, including, without limitation, information that:
(a) contains lesson plans and structures;
(b) is by its nature confidential;
(c) is designated by a party as confidential;
(d) the recipient knows or ought to know is confidential;
(e) is “personal information”, that is, information or an opinion, whether true or not and whether recorded in a material form, about a natural person whose identity is apparent or can be readily ascertained from the information or opinion.
10. Photography and Videography
10.1 The Student acknowledges and agrees that KI may use the Student’s image for marketing and promotional purposes. The Student must advise KI in writing if they do not wish to appear in marketing and promotional material.
10.2 KI reserves the right to prohibit the use (including for personal use, such as posting on the Student’s Facebook page) of any image or video which a Student takes during the delivery of the Services, in KI’s sole discretion.
10.3 The Student acknowledges and agrees that it will not take or use photographs of other persons who are also receiving the Services, without first obtaining their consent and the consent of KI, which may be withheld in their absolute discretion.
11.1 KI may terminate this Agreement at any time by written notice to the Student if KI ceases to offer the Services or if the Student breaches any term or condition of this Agreement.
11.2 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Services Agreement except those obligations that, by their nature, survive termination;
(b) each party retains the Claims it has against the other; and
(c) the Student must immediately pay all outstanding Fees (if any) to KI without off-set (including any off-set for any alleged claim).
12.1 KI may appoint employees,contractors, sub-contractors or agents to perform any Services under this Agreement, in their sole discretion.
12.2 This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this agreement, no party has relied on any representation made by or on behalf of the other.
12.3 KI may amend these Terms and Conditions at any time upon giving the Student notice via email or by posting notices of any changes on our Facebook page and/or website. If you continue to utilise any Services on a date that is seven days after the date on which notice of the change is given, you will be deemed to have accepted these changes.
12.4 A party waives a right under this Agreement only if it does so in writing. Neither party waives a right simply because they fail to exercise a right, delays exercising a right or only exercise part of the right. A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
12.5 If a provision in this Agreement is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of the provision that is invalid or enforceable must, to that extent, and in that jurisdiction, be treated as deleted from this Agreement. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.
12.6 KI may assign or otherwise deal with the benefit of any contract made pursuant to this Agreement without the Student’s consent.
12.7 The Student may not assign any rights and obligations under this Agreement under any circumstances without first obtaining KI’s written consent to do so. Any purported assignment not undertaken in accordance with this clause will be invalid.
12.8 All contracts made between KI and the Student shall be governed by and construed in accordance with the laws of the State of Queensland. The Student agrees to submit to the exclusive jurisdiction of the Queensland courts for all purposes of or in connection with such contracts.
13.1 The Student acknowledges and agrees that they will not enter the premises or participate in any Services if they:
(a) have tested positive for COVID-19 at any time in the preceding fourteen (14) day period; or
(b) have any cold, flu-like or other associated COVID-19 symptoms; or
(c) have been in contact with any person who has tested positive for COVID-19 at any time in the preceding fourteen (14) day period; or
(d) have returned from travel to any place outside of Queensland in the preceding fourteen (14) day period; or
(e) have been in any place identified by the Queensland Government during contact tracing as a place in which a person affected by COVID-19 has been.
13.2 While at the premises and during participation in the Services, the Student agrees to comply with any and all COVID-19 plans implemented by KI, any reasonable direction or instruction KI give the Student in that respect, and any directions made by the Queensland Government with respect to COVID-19.
13.3 The Student acknowledges and agrees that KI have the right to refuse to provide the Services to them if:
(a) KI reasonably suspects the Student poses a risk of spreading COVID-19 to KI or any other Student or person; or
(b) the Student does not follow any direction by KI or the Queensland or Federal Government in relation to, or in connection with, COVID-19.
13.4 The Student indemnifies and releases KI in relation to any Claim that may arise in connection with another student or person breaching KI’s above policy in relation to COVID-19.