Terms and Conditions
Membership Terms & Conditions
The below Terms and Conditions outline the Membership Agreement between ¿BGAPS Pty Ltd trading as BGA Pro Shop & Club BGA ABN ¿3861 9974 417 (“us”, “we”, or “our”) and you (“the Member”).
By signing up to Club BGA via our sign up form be it digital, written or otherwise you indicate your agreement to be bound by these Terms and Conditions.
Please read these Terms and Conditions carefully before applying for and using your Membership.
The parties agree:
1. APPLYING FOR MEMBERSHIP
Membership is only available to, and may only be used by, individuals who can form legally binding contracts under Applicable Law. If you do not qualify, please do not submit a membership application to us or use the Membership.
You may register to become a Member by submitting an application form and following the registration process as found on the website or as made known to you by us.
Once your application has been approved by us and upon receipt of your first payment of the Membership Fees, you will be granted Membership.
We reserve the right to accept or decline any membership application at our discretion.
You are required to keep your personal information provided to us current and accurate at all times.
2. MEMBERSHIP TERM
Your Membership commences on the Commencement Date and will continue for a 12 month period unless and until it is terminated earlier in accordance with its terms.
Following the 12 month period, your Membership will automatically renew each year on the anniversary of the Commencement Date for a further 12 month period unless we receive written notice that you do not wish to renew at least 30 days before the expiry of the current Term. Unless you cancel your Membership before this period, you authorise us to continue to charge the Membership Fee.
We will provide you with reminders 7 days before your automatic annual renewal.
3. MEMBER BENEFITS
In consideration of your payment of the Membership Fee and your compliance with these Terms and Conditions, we agree to provide to you with access to the Membership Benefits as specified upon sign up and for the term of your agreement and upon renewal or as otherwise notified by Club BGA.
Member Benefits may be provided by us or by third parties. We take reasonable care to ensure that Member Benefits provided by third parties meet certain standards however we are unable to guarantee so and accept no liability for:
- any use of your personal information by a third party;
- any failure of a third party to provide Member Benefits;
- a failure by a third party to comply with the terms of any transaction entered into.
We are not a party to any transaction entered into between you and a third party that provides Member Benefits, and are not responsible for any such transactions.
All Member Benefits are subject to availability and other terms and conditions which may be imposed by us or third parties.
Membership Benefits are available to Members only and cannot be sold, transferred, assigned or otherwise dealt with except with our written consent.
We may suspend, vary or withdraw any of the Membership Benefits without notice, however will do all we can to notify you through our various communication platforms being email, website, social media or otherwise where possible
In consideration of your Membership, you agree to pay the 12 month Membership Fee up front and in full prior to the commencement of your membership or unless otherwise agreed to or advised by Club BGA via the payment methods made available to you by Club BGA.
The Membership Fee will be the then current fee as stated upon sign up at the time you application for Membership. Membership renewals will be charged at the fee on offer at the time of renewal. Club BGA must provide at least 14 days notice for any price increases and offer any reduced fees amended 30 days after the sign up or renewal takes place.
4.1 Late Payments
If you fail to pay any amount when due under these Terms and Conditions, you acknowledge that we may in its discretion:
suspend your Membership and access to any Membership Benefits, and we will not be responsible for any Loss suffered by you because of this; and/or charge you interest calculated at 10% per annum which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.
4.2 Direct Debit Authorisation
Where relevant and direct debit is authorised, you irrevocably authorise Club BGA to debit the fees during the term from your nominated bank account/credit card/debit card (“Nominated Account”), on or about the due date for payment without notice. You must ensure that the Nominated Account details are up to date at all times and you must notify us in the event that the details are no longer current, and provide replacement details. You also irrevocably authorise us to deduct all other fees and charges payable by you to us under this Agreement from your Nominated Account. You warrant that you are the owner or have the right to use any Nominated Account details provided to us.
Should an alternative payment method be approved that causes us to incur any merchant or transaction fees, you agree to have these fees passed on to you.
The Member must pay all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Membership.
Any additional cost incurred to Club BGA in debt collection of outstanding amounts, including legal fees on a solicitor own client basis will be payable by the Member.
Unless otherwise indicated, amounts payable to us include GST.
To the extent permitted by law, all fees are non-refundable under any circumstances unless otherwise agreed by Club BGA.
5. MEMBERSHIP OBLIGATIONS
Each Member must meet their responsibilities, including payment on time of Membership Fees during the Term of the Membership. You must tell us about anything that may affect this.
Your use of the Membership, and information you provide must not:
- be false, inaccurate or misleading;
- be fraudulent or deceptive;
- infringe any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
- violate any Applicable Laws (including those governing consumer protection, unfair competition, criminal law, anti-discrimination or trade practices law);
- be defamatory, libellous, unlawfully discriminatory, threatening or harassing;
- create liability for us or cause us to lose (in whole or in part) the ability to provide Membership of the Membership Benefits we offer;
- damage the credibility or integrity of the Membership or us, or dilute, tarnish, or otherwise harm our brand in any way;
- breach or violate any of our policies;
- abuse or misuse the Membership, any Member Benefits, services or arrangements;
- be for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Membership, or in a manner that falsely implies endorsement, partnership or otherwise misleads others as to your affiliation with us;
- act in a way which, in our reasonable opinion breaches or is likely to breach these Terms and Conditions;
- sell, assign, transfer or attempt to deal in any way with Membership Benefits that is in contravention of these Terms and Conditions;
- collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
- stalk or harass any other Member or collect or store any personally identifiable information about any other Member;
- be for unlawful or dangerous activities or purposes;
- be in a manner that directly or indirectly attempts to circumvent payment of any fees.
6. SUSPENSION OR TERMINATION
6.1 Suspension or termination by us
- We may suspend or terminate your Membership immediately, at any time by written notice to you if:
- you fail to pay any fees when due under these Terms and Conditions;
- we reasonably believe that your actions may cause legal liability for us or for our other Members;
- we reasonably believe that your conduct, acts or omissions threatens, interferes or impacts upon the integrity or credibility of the Membership or us;
- you cease to be a Member; or
- you are in breach of any term of these Terms and Conditions and:
- fail to rectify the breach upon being given 30 days’ written notice to do so; or
- the breach is unable to be rectified.
6.2 Termination by you
You may terminate your Membership:
- if we have committed a material breach of these Terms and Conditions and have failed to remedy the breach within 30 days written notice by you.
- on written notice to us in accordance with the “Membership Term” (Clause 2) – termination will be effective at the end of the current Term; or
- if we consent to such termination (in our sole discretion), subject to your fulfillment of any pre-conditions to such consent (e.g. payment of agreed fees).
6.3 Effect of termination
Upon termination of your Membership (where we are not at fault), all amounts payable by you to us become immediately due and owing. For the avoidance of doubt, no refunds of the fees will be provided in the event of the early termination of your Membership.
Any provision of these Terms and Conditions which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.Termination of these Terms and Conditions shall be without prejudice to the rights and liabilities of the parties which arose prior to the termination.
7. CHANGES TO YOUR MEMBERSHIP
Club BGA may amend these Terms and Conditions from time to time on giving you at least 14 days written notice. This includes without limitation our right to increase Membership Fees.
In the event these changes to the Terms and Conditions impose unfair conditions on you, please get in contact with us and we may offer you a pro-rata refund. This decision will in our sole discretion acting reasonably.
8. INTELLECTUAL PROPERTY
All intellectual property rights of Club BGA whether now existing or created after the Assignment Date including business and domain names, all rights in relation to content, images, business plans, inventions (including patents and patent applications), confidential information, trade secrets, know how, research data, formulae, discoveries and any other intangible proprietary rights whether registered or not arising from intellectual activity related in any way to the invention, software, plant variety, products or services described in the schedule are the property and ownership of Club BGA.
The Member agrees not to use any of the above listed or otherwise produced Intellectual Property without the prior consent of Club BGA. This includes content placed on our website, social media forums, sent via email or otherwise.
The Member understands that any breach of the above may result in compensation to BGAPS Pty Ltd for use of Intellectual Property, Loss of Business, Loss of Revenue or otherwise.
Other than where:
the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
expressly agreed by all parties in writing; or
required by law;
- the Member must at all times:
- treat and keep the Confidential Information confidential;
- not use, or allow the use, of the Confidential Information by any third party; and
- not disclose or allow the disclosure of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.
- If we request, you must immediately return all Confidential Information, and any copies of the Confidential Information, to us.
- In the event of a breach or threatened breach of the terms of this clause by you, we will, as between the parties, be entitled to an injunction restraining you from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by us.
This clause shall not merge on the expiry or earlier termination of the term.
We provide the Membership and any Membership Benefits on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Membership and any Membership Benefits that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
We do not make any representations in relation to the continuing availability of the Membership and Membership Benefits and will not be liable for them being unavailable or discontinued. We do not promise that the Membership or any Membership Benefits will be uninterrupted, or that the use of the Membership will provide any specific results.
This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms and Conditions.
11. LIMITATION OF LIABILITY
Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.
Where any law (including the ACL) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, our liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to the supply of the services again, or the payment of the cost of having them supplied again.
Subject to the other terms of this clause, our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms and Conditions:
is excluded for:
- any direct, indirect, incidental, special, consequential or exemplary damages that may be incurred by you, howsoever caused and under any theory of liability including but not limited to loss of profit, loss of goodwill or business reputation, loss of data, costs of procurement of substitute goods or services, or other intangible losses;
- any reliance placed on the Membership or the Membership Benefits; or
- any service that we provide in connection with the Membership;
- is limited, insofar as concerns other liability, to the greater of:
- the lowest amount permitted by law; or
- the total money paid to us under these Terms and Conditions in the one month period preceding the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
You agree to indemnify BGAPS Pty Ltd, BGA Pro Shop or Club BGA from and against all Losses, claims, expenses, damages and liabilities (including any direct, indirect, special or consequential losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses which arise out of:
- any breach of these Terms and Conditions by you, including any failure to pay any fees on time;
- your use of the Membership and the Membership Benefits;
- the use or reliance on any information provided by us to you;
- any claims made by third parties against us arising directly or indirectly out of the provision of the Membership and/or the Membership Benefits;
- the enforcement of these Terms and Conditions; and
- any negligent, fraudulent or criminal act or omission of yours.
13 FORCE MAJEURE
If we are rendered unable, wholly or in part, by Force Majeure to carry out or observe any of our obligations under these Terms and Conditions, we shall give you prompt written notice providing full details of the Force Majeure.
Our obligations under these Terms and Conditions, to the extent affected by Force Majeure, will be suspended and no claim by you will available by reason of such Force Majeure provided that we, to the extent practicable, takes all reasonable steps to remove the Force Majeure as soon as possible. We may require your assistance to overcome the Force Majeure and you must provide all reasonable assistance promptly.
For the avoidance of doubt, we shall not be liable for any Loss suffered by you as a result of Force Majeure.
14. GENERAL PROVISIONS
14.1 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
14.2 Binding on Successors
These Terms and Conditions shall be binding on the parties and their heirs, executors, successors and permitted assigns.
14.3 Governing Law
These Terms and Conditions is governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria.
The parties submit to the jurisdiction of the Courts of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.
14.4 Further Assurances
The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms and Conditions.
14.5 Entire Understanding
These Terms and Conditions contains the entire understanding and agreement between the parties as to the subject matter of these Terms and Conditions.
All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this document are merged in this document and are of no further effect.
No oral explanation or information provided by a party to another affects the meaning or interpretation of this document or constitutes any collateral agreement, warranty or understanding.
No waiver by a party of a provision of these Terms and Conditions is binding unless made in writing.
If a provision of these Terms and Conditions is void or unenforceable it must be severed from this document and the provisions that are not void or unenforceable are unaffected by the severance.
14.8 Cumulative Rights
The rights and remedies of a party to these Terms and Conditions are in addition to the rights or remedies conferred on the party at law or in equity.
14.9 Counterparts and Email
These Terms and Conditions may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
Where these Terms and Conditions is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
The parties must bear their own costs of any incidental to the negotiation, preparation and execution of these Terms and Conditions.
14.12 Legal Rules of Interpretation
The ¿contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
14.13 Time of the Essence
Time is in all cases and in every respect of the essence of these Terms and Conditions.
14.14 Dispute Resolution
If a dispute arises in connection with these Terms and Conditions then a party may only deal with that dispute in the manner set out in this clause.
A party to a dispute which arises in connection with these Terms and Conditions may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
Within 14 days after a notice is given under sub-clause (b) of this clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
If despite the parties’ best efforts a dispute not resolved within 14 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Mediation Rules of The Institute of Arbitrators and Mediators Australia. The mediation will be conducted by a mediator to be appointed by agreement of the parties or in default of agreement to be appointed by the President of the Law Institute of Victoria or his/her nominee at the request of a party.
If the dispute is not resolved within 14 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.
DEFINITIONS & INTERPRETATION
In this document unless inconsistent with the context or subject matter:
- “ACL” ¿¿means the Australian Consumer Law (as set out in Schedule 2 to the ¿Competition and Consumer Act 2010¿ (Cth));
- “Agreement” means a meeting of minds with the understanding and acceptance of reciprocal legal rights and duties as to particular actions or obligations, which the parties intend to exchange; a mutual assent to do or refrain from doing something; a contract.
- “¿Applicable Laws¿¿” means all legislation, orders, by-laws, regulations and codes made thereunder in any way governing or affecting the Services;
- “¿Commencement Date”¿¿ means the date in which we activate your membership under review of your application and received payment of the Membership Fee;
- “¿Confidential Information¿¿”¿ ¿¿of a party means all information (in any form):
- relating to or arising from the Membership (this is deemed to be our Confidential Information);
- but does that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature;
- that a party claims as confidential and marks as confidential at the time of disclosure; and
- includes these Terms and Conditions; not include information that:
- is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
- becomes publicly available without breach of these Terms and Conditions; or
- is disclosed under a statutory duty of disclosure or otherwise by law;
- “¿Force Majeure¿¿” means any delay or inability to perform or breach of these Terms and Conditions which is directly or indirectly caused by circumstances outside of our reasonable control;
- “¿GST¿¿” has the same meaning as in the GST Act;
- “¿GST Act¿¿” means ¿A New Tax System (Goods and Services Tax) Act 1999¿ (Cth);
- “¿Intellectual Property”¿¿ means all intellectual property rights, including patents, copyright, trade marks, any right to have Confidential Information kept confidential and any application or right to apply for registration of any of these rights, and includes the following:
- the Membership;
- presentations, information or data, source codes and other information technology relating to or connected with the Membership;
- books and records relating to or connected with the Membership;
- advices (including without limitation verbal advices) relating to or connected with the Membership;
- marketing information relating to or connected with the Membership;
- technical information, including trade secrets, drawings, plans, strategies, relating to or connected with the Membership;
- licences and authorisations relating to or connected with the Membership;
- ideas relating to the Membership;
- all intellectual property rights which are developed by us or acquired by us whether before, during or after the end of the parties mutual dealings; and
- those items referred to under clause 8.4;
- “¿Loss¿¿” means any loss, liability, cost (including legal costs on a solicitor own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
- “¿Member¿¿” means a member of the Membership;
- “¿Membership¿¿” means a Members membership with GenYser
- “¿Membership Benefits”¿¿ means those benefits granted to Members in accordance with clause 2;
- “¿Membership Fees¿¿” means those fees payable by you for the Membership in accordance with clause 4;
- “¿Term¿¿” means the term of these Terms and Conditions, determined in accordance withclause 3;
- “¿Terms and Conditions¿¿”¿ m¿¿ eans these Membership Terms and Conditions; and
- “¿Website¿¿” means our website accessible at genyser.com and as updated from time to time.
In this document, unless inconsistent with the context or subject matter:
- reference to a person includes any other legal entity and vice versa;
- words importing the singular number include the plural number and vice versa;
- a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
- headings are for reference purposes only and must not be used in interpretation;
- where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
- a reference to a statute includes all regulations and subordinate legislation and amendments;
- references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
- a reference to a monetary amount is a reference to an Australian currency amount;
- an obligation of two or more parties binds them jointly and each of them severally;
- an obligation incurred in favour of two or more parties is enforceable by them severally;
- references to time are to local time in Victoria;
- where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
- a reference to a business day means any day on which trading banks are open for business in Victoria;
- if any time period specified in this document expires on a day which is not a business day, the period shall expire at the end of the next business day;
- a reference to a month means a calendar month.
PROPERTY OF BGAPS Pty Ltd. 2019