Swan Active Holiday Swim Program Terms and Conditions
EFFECTIVE 6 MAY, 2024
1. GENERAL
1.1 If the person participating in the Program is a Minor, their parent or guardian:
(a) agrees to these terms and conditions in respect of the Minor and gives the releases and warranties set out in these terms and conditions;
(b) will, where applicable, procure the Minor to abide by these terms and conditions; and
(c) will ensure the Minor will wear fitted aqua nappies if they are not fully toilet trained.
1.2 Parents and guardians are responsible for seeing their child to and from their allocated Lessons and must comply with the hours of operation and the Program start and finish times stipulated on the Application Form and/or online booking system. Under no circumstances are parents and guardians permitted to leave the aquatic centre whilst a Minor of 10 years or under that they are responsible for is participating in a Lesson.
1.3 If the Application Form lists more than 1 Minor, then these terms and conditions will apply to each of those Minors as if a separate Application Form had been completed and submitted for each Minor. Any reference to “you” or “your” is a reference to each Minor named in the Application Form and the parent or guardian who signed the Application Form.
1.4 By signing and submitting you Application Form, you agree to the terms of the Agreement, and acknowledge and agree that you were provided with a copy of these terms and conditions, and you have read and understood them. The Agreement becomes legally upon Swan Active notifying you that your Application Form has been approved.
1.5 You acknowledge that your participation in the Program is governed by the terms of the Agreement.
2. PARTICIPATION IN THE PROGRAM
2.1 Prior to being admitted as a Participant, you must:
(a) complete and submit a “Holiday Swim Program Application Form”;
(b) have your photo taken to allow staff to identify you as a Participant;
(c) disclose any medical, physical or other disabilities or conditions, either past or present, which may affect your ability to safely participate in the Program or use the Facilities and Services, including conditions or disabilities which may be affected or aggravated by, or which may result in any sickness injury or death to you as a result of, your participation in the Program or use of the Facilities and Services; and
(d) provide copies of any other documents that may be reasonably required by Swan Active to assess your application for participation in the Program.
2.2 If you disclose any medical conditions under clauses 2.1(c) or 4.6, or if Swan Active otherwise suspects on reasonable grounds that you may not be able to safely participate in the Program or use the Facilities and Services, then your ability to participate in the Program and use the Facilities and Services is subject to your compliance with any requirement of Swan Active for you to:
(a) provide a medical certificate or other written confirmation from a doctor certifying that it is safe for you to participate in the Program or use the Facilities and Services;
(b) provide a medical management plan for any severe medical conditions;
(c) sign a waiver of liability in respect of your use of the Facilities and Services; and
(d) if you are Minor or person who has a legal guardian – be accompanied by your parent or guardian at all times that you participate in the Program or use the Facilities and Services,
and you acknowledge that Swan Active’s liability to you is limited by the Conditions of Entry (in particular the sections titled ‘Risk and liability’ and ‘Waiver or liability – pool and aquatic facilities’) and by clause 7 of these terms and conditions.
2.3 A copy of your medical management plan for severe medical conditions must be provided to Swan Active prior to using the Facilities and Services. If you are a Minor and in Swan Active’s reasonable opinion your medical condition may impact Lessons or is a life threatening condition, Swan Active may require the parent or guardian to remain at the Location for the duration of the Lessons.
2.4 You may immediately cancel the Agreement under clause 6.4 if Swan Active requires you to provide, sign or do (as applicable) any of the things in clause 2.2.
2.5 You represent to us that all information provided in your Application Form, and any other document provided in accordance with clause 2.1 is true, accurate and complete in all material respects and is not misleading or deceptive.
2.6 Your participation in the Program entitles you to access the Facilities and Services in accordance with the Agreement.
2.7 The Agreement will commence on the Commencement Date and continue until the Termination Date.
3. PAYMENT
3.1 You agree to pay the Fees associated with the Program in accordance with these terms and conditions.
3.2 You must pay the Program Fees at the same time as submitting your Application Form. You may apply a Voucher or part of a Voucher to the Program Fee. If the amount of the Voucher you apply is less than the Program Fee, you will be required to pay for the gap.
3.3 If you miss a Lesson or are late for any reason to your allocated swimming time, that missed time is forfeited, there are no make-up / replacement lessons, credits or refunds.
4. ACCESS AND USE OF FACILITIES
4.1 Subject to payment of your Fees and your compliance with the terms of the Agreement, being a Participant gives you the following access to the Facilities and Services and benefits during the Program Term:
(a) access to the Lessons as set out in your Application Form;
(b) pool entry for you at all Locations during the Opening Hours;
(c) when you are attending your Lessons —
(i) pool entry for one parent / caregiver accompanying you; and non-pool entry for one spectator,
and
(d) when you are entering the pools outside of your Lessons — pool entry for one parent / caregiver accompanying you; and
(e) a 5% discount on purchases at the Café and merchandise at each Location when presenting your Membership Token.
4.2 If the Participant is a Minor, the Participant’s parent or guardian will not be given access to the Facilities and Services during the Program Term unless the Participant is present.
4.3 Only the Participant may participate in the Program. The ability to participate in the Program cannot be transferred to any other person.
4.4 You must present your Membership Token at:
(a) all relevant swipe points; and
(b) any time it is requested by a Swan Active staff member.
4.5 If you lose your Membership Token, you must obtain a replacement token and may be required to pay the Lost Token Fee.
4.6 You must inform Swan Active immediately upon becoming aware of any medical, physical or other disability or condition, either past or present, which may affect your ability to safely participate in the Program or use the Facilities and Services, including conditions or disabilities which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of, your participation in the Program or use of the Facilities and Services. In the event you disclose such a disability or condition, your participation in the Program and use of the Facilities and Services may be subject to the requirements in clause 2.2.
4.7 Swan Active may, where there are reasonable grounds to suspect that you may not be able to safely access and use the Facilities and Services, require you to provide written confirmation from a doctor confirming your fitness to use those Facilities and Services.
4.8 Swan Active adopts a “first come, first served” rule in respect of all Facilities and Services, including the Crèche. Swan Active reserves the right to refuse entry to any person at any Location if that entry may exceed maximum capacity of that Location. Your participation in the Program does not give you a greater right to access Facilities and Services than any other Program, Swan Active member, or a person who is accessing Facilities and Services on a casual basis.
4.9 You agree to comply with the relevant “Conditions of Entry” at all times at any of the Locations.
4.10 You must at all times follow the safe operating procedures and instructions on the equipment and/or as directed by a Swan Active staff member.
4.11 You agree to only use the equipment for its intended purpose/s.
4.12 If you cause any damage to the Facilities and Services, you must notify a Swan Active staff member immediately, and to the extent the damage is caused by your negligence or misuse of the Facilities and Services you agree to pay Swan Active upon demand the reasonable cost of repairing the damaged items or, if repair is not possible, replacement of the damaged items.
4.13 If Swan Active cancels a Lesson for any reason, you may elect to be either credited or refunded the portion of the Program Fees applicable to that Lesson.
5. PARTICIPANT ACKNOWLEDGEMENTS, WARRANTIES AND CONSENTS
5.1 You acknowledge that:
(a) your access to the Facilities and Services is not exclusive and must be shared with other users;
(b) the Facilities and Services may be closed for safety or emergencies or any event beyond our reasonable control;
(c) Facilities and Services are only accessible during Opening Hours, and Opening Hours may change without notice. Swan Active will use reasonable efforts to notify you of any changes to Opening Hours in advance of such changes, however you acknowledge that there may be times in which prior notice is unable to be provided;
(d) not all Facilities and Services may be available at all times or at all Locations.
5.2 You warrant that, to the best of your knowledge, you are able to safely use any Facilities and Services and you have considered all necessary medical advice prior to participating in Lessons.
5.3 You agree it is your responsibility not to use any Facilities and Services that may have an adverse effect on any medical or physical condition you may have and acknowledge that we do not provide medical advice in connection with your use of the Facilities and Services.
You acknowledge that Swan Active or the Lesson instructor may request that a parent, guardian or caregiver must be present in the pool to assist you during your Lesson as a condition of your participation in the Lesson.
5.4 Except as disclosed under clause 2.1(c) or clause 4.6, you acknowledge and represent that to the best of your knowledge, you do not have any medical, physical or other disability or condition which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of your participation in the Program or your use of the Facilities and Services.
5.5 You acknowledge that you may be liable to Swan Active for damages for breach of the Agreement if you do not terminate the Agreement in a manner described in the Agreement.
5.6 You acknowledge that Swan Active cannot guarantee that the same instructor will deliver all of your Lesson. Where reasonably possible, Swan Active will give you advance notice of a change of instructor.
5.7 You acknowledge that Swan Active does not accommodate requests for specific instructors.
6. CANCELLATION OF THIS AGREEMENT
6.1 You may cancel the Agreement by providing written notice to Swan Active at least 14 days before the beginning of the Program Term. Subject to clause 6.4, you cannot cancel the Agreement after this time.
6.2 If you cancel the Agreement under clause 6.1, you can elect to either be credited or refunded all Program Fees.
6.3 Swan Active may charge you an Administration Fee that reasonably reflects the costs incurred by Swan Active in administering the cancellation of the Agreement. If you cancel the agreement and elect to be credited, an Administration Fee will not be charged.
6.4 You may cancel the Agreement immediately by providing written notice where Swan Active has required you to provide, sign or do (as applicable) any of the things set out in clause 2.2.
6.5 Swan Active may cancel the Agreement immediately by providing written notice where Swan Active believes on reasonable grounds that you are not safely able to participate in the Program or use the Facilities or Services or that your participation in the Program or use of the Facilities or Services may result in sickness, injury or death to you.
7. LIABILITY
7.1 To the maximum extent permitted by law and to the extent not caused or contributed to by Swan Active, Swan Active will not be liable for any loss, theft or damage occurring to your personal items. Any personal items left or stored at a Location are left or stored at your own risk.
7.2 Vehicles parked in or around the vicinity of a Location are parked at your own risk and you agree to the maximum extent permitted by law and to the extent not caused or contributed to by Swan Active, Swan Active is not liable for the theft or any damage occurring to vehicles or their contents.
7.3 You acknowledge and accept that while at a Location and while using the Facilities and Services, you are at risk of sustaining injury, permanent disability or death. Such risks may arise from:
(a) experiencing a medical event while using the Facilities and Services;
(b) slipping on wet flooring;
(c) colliding with other Members;
(d) engaging in strenuous exercise and activities; or
(e) incorrect use of the Facilities and Services.
7.4 You acknowledge that any such injury may result not only from your actions but from the action, omission or negligence of others.
7.5 You acknowledge and agree that the risks contained in clause 7.3 are not exhaustive, and there are other unknown or anticipated risks from your use of the Facilities and Services that may result in injury, permanent disability or death.
7.6 You acknowledge that while every attempt is made to ensure that our Facilities and Services are safe, there are some significant and inherent risks involved in your use of the Facilities and Services. You assume all such risks, and agree that you are attending and using the Facilities and Services voluntarily and entirely at your own risk.
7.7 To the fullest extent permitted by law, you acknowledge that Swan Active is not liable to you for any injury, loss or damage sustained by you while you are under the supervision of a third-party service provider at the Facility (including any private service provider you engage directly).
7.8 This clause 7 survives termination of the Agreement.
8. PRIVACY
8.1 Swan Active will hold, use and disclose your personal information in accordance with all applicable laws.
8.2 Surveillance
(a) For safety and security reasons we implement video and audio surveillance to monitor the Locations. Surveillance is limited to the entry and floor areas only within each Location.
(b) By participating in the Program, you acknowledge that when accessing a Location you will be subject to video surveillance and consent to such surveillance being taken and held by or on behalf of Swan Active.
9. COMPLAINTS
9.1 If you have any complaints regarding our service or any other issue regarding the Facilities and Services you must submit your complaint to Swan Active by sending your complaint in writing by completing a Customer Feedback Form available at reception or online, or by emailing the compliance to the relevant email address for the Location the complaint is in respect of. We will:
(a) make a record of your complaint and inform you that we have received and recorded your complaint as soon as possible after receiving a complaint; and
(b) undertake every reasonable effort to resolve your complaint quickly and fairly.
10. GOVERNING LAW
10.1 The Agreement is governed by and construed in accordance with the laws of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of its courts.
11. NOTICES
11.1 Unless stated otherwise in the Agreement, any written notice required to be provided under the Agreement must be given to Swan Active in person, by email or post. A notice, approval, consent or other communication takes effect from the time it is received by Swan Advice unless a later time is specified in it.
11.2 A notice is taken to be received:
(a) in the case of hand delivery, on delivery;
(b) in the case of a posted letter, on the third clear Business Day after posting if within Australia, or the eight clear Business Day after posting if posted to or from a place outside Australia or from one state or territory in Australia to another; and
(c) in the case of email, when the email together with any relevant attachment is received into the recipient’s information system in readable form,
provided further that if the delivery, receipt or transmission would otherwise be taken to be received on a day which is not a Business Day or would be taken to be received after 4:00 pm on the Business Day, then the notice will be taken to be received at 9:00 am on the next Business Day.
12. WAIVER
12.1 If a party does not enforce a right under the Agreement at any time, it does not mean that the party may not do so in the future.
13. SEVERABILITY
13.1 Any term or any part of the Agreement that is or becomes illegal, void or unenforceable may be severed from the Agreement and the remaining terms or parts of the terms of the Agreement continue in force.
14. ENTIRE AGREEMENT
14.1 The terms of the Agreement constitute the entire agreement between the parties.
15. DEFINITIONS & INTERPRETATION
15.1 Definitions
In the Agreement, unless the context provides otherwise:
Administration Fee means a fee that reasonably reflects the administration costs incurred by Swan Active in administering the Agreement, and more specifically published here https://www.swanactive.com.au/prices/.
Agreement means the contract between you and the City of Swan, the terms and conditions of which are set out in:
(a) these terms and conditions;
(b) your completed Application Form (including any other membership alteration form (as applicable); and
(c) Conditions of Entry.
Application Form means the ‘Holiday Swim Program Application Form’ completed by you and submitted to Swan Active and accepted and approved by Swan Active.
Business Day means a day that is not a Saturday, Sunday, national public holiday or a public holiday in Western Australia.
Commencement Date means the date that Swan Active accepts or confirms your Application Form.
Conditions of Entry means the “Swan Active Conditions of Entry Conditions of Entry” that are available on Swan Active’s website https://www.swanactive.com.au/terms-and-conditions/conditions-of-entry/ and at reception at each Location.
Customer Feedback Form means the form available at reception at all Locations or online at https://www.swanactive.com.au/feedback-form/.
Facilities and Services includes any of Swan Active’s premises, swimming pool, and all bathrooms, and services, that you may use, in connection with participation in the Program. For clarity, participation in the Program does not include access to the spa or sauna, or any other facilities and services of Swan Active, in-term swimming, club events or any other similar aquatic event or activity.
Fees means any and all Fees that may become payable under the Agreement, including but not limited to Administration Fees, Lost Token Fee and Program Fees.
Lessons are the swimming lessons provided during each day of the Program you have applied for as referred to in the Application Form.
Location means one of the following premises operated by Swan Active:
(a) 3 Community Mews, Ballajura WA 6066 (Ballajura);
(b) 332 Benara Road, Beechboro WA 6063 (Beechboro); and
(c) 27 Gray Drive Midvale WA 6056 (Midland).
Lost Token Fee means the fee, published at https://www.swanactive.com.au/prices/, to cover the reasonable cost of replacing your lost Membership Token.
Membership Token means a Membership token issued by Swan Active that allows you access to the Locations to use the Facilities and Services.
Minor means a Member under the age of 18 and includes the parent or guardian of that Member.
Opening Hours means the hours that each of the Facilities and Services are open for access by Members, which may vary between Locations, days of the week, and public holidays. The hours are advertised within each Location and on the Swan Active website.
Participant means a person who has permission to use and access the Facilities and Services subject to the Agreement.
Program Fees means the upfront fee payable for participation in the Program, as set out on the website at https://www.swanactive.com.au/holiday-swim-program/.
Program means the specific block of Lessons (i.e. 4 days, 5 days, or 9 days) you have applied for as referred to in your Application Form.
Program Term means the period of time commencing on the day of your first Lesson and ending on the day of your last Lesson.
Swan Active means the City of Swan.
Termination Date means the day of your last Lesson as set out your Application Form, or the date this Agreement is otherwise terminated in accordance with its terms.
Voucher means a valid, non-expired voucher issued by the City of Swan (or, if not issued by the City of Swan, accepted by Swan Active in its sole discretion).
You means the person stated in your Application Form, and if the person is a Minor or a person who has a legal guardian, then ‘you’ means that Minor or person and the legal guardian of that Minor or person (as applicable) member.
15.2 Interpretation
In the Agreement, unless expressed to the contrary:
(a) headings and bolding are for convenience only and do not affect the interpretation of the Agreement;
(b) the singular includes the plural and vice versa;
(c) if a word or phrase is defined, cognate words and phrases have corresponding definitions;
(d) a reference to:
(i) a clause or sub-clause refers to a clause or sub-clause of the Agreement;
(ii) a person includes a firm, unincorporated association, corporation, partnership or a government or statutory body or authority;
(iii) any document includes a reference to that document as amended, rectified or replaced form time to time and to any document so amending, rectifying or replacing the document; and
(iv) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
(e) the meaning of a general word or phrase is not limited by specific examples introduced by “including”, “for example” or similar expressions.