PURPOSE & APPLICATION
Unless otherwise inconsistent with the context:
ACL means The Australian Consumer law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Act of Default occurs if either party:
– commits a material breach of these Terms and Conditions;
– commits an act of bankruptcy, enters into any composition or arrangement with its creditors or does anything which would make it liable to be put into liquidation;
– is subject to a resolution or an application for liquidation; or
– has a receiver, other form of insolvency administrator or statutory or official manager appointed over any of its assets,
Agreement means the agreement between the Supplier and Customer for the provision of the Treatment or provision of the Products as constituted by these Terms & Conditions, the Treatment Booking, the Supplier’s Consultation Form and the Product Order (as applicable);
Consumer has the meaning prescribed in the ACL;
Customer means the person or entity named as the Customer in the Treatment Booking;
Force Majeure Event means any event or circumstances which is beyond the reasonable control of the affected party which results in or causes the failure of that party to perform any of its obligations under this Agreement;
Gift Voucher Terms means the Supplier’s Gift Voucher Terms set out on the Supplier’s Website from time to time;
GST has the meaning prescribed to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Premises means the Supplier’s premises at LG, 90a Watton Street, Werribee, Victoria 3030.
Products mean the products ordered by the Customer from the Supplier;
Product Price means the price for the products specified in the Product Order;
Product Order means the document which outlines the Products to be purchased by the Customer from the Supplier, and which constitutes a tax invoice for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Supplier means Fifth Element Day Spa.
Supplier’s Consultation Form means the form entitled as such and provided to the Customer prior to the Treatment;
Terms & Conditions means the Terms & Conditions set out in this document;
Treatment means a treatment provided to the Customer, as set out in a Treatment Booking or as placed by the Customer in accordance with any other process imposed by the Supplier from time to time;
Treatment Booking means the document which outlines the Treatment to be provided to the Customer by the Supplier, and which constitutes a tax invoice for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Treatment Deposit means 50% of the Treatment Price;
Treatment Price means the price specified in a Treatment Booking for the Treatment and includes the Treatment Deposit; and
Website means the Supplier’s website at www.fifthelementdayspa.com.au
GOVERNING LAW & AUSTRALIAN CONSUMER LAW
These Terms & Conditions are governed by and construed in accordance with the laws of Victoria, Australia. No provision is intended to exclude, restrict or modify rights which the Customer has under the ACL or any other law which cannot, by law, be excluded, restricted or modified.
If any provision of these Terms & Conditions is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions which shall remain in full force and effect.
TREATMENT AND PRODUCTS
The Treatment will be supplied in accordance with the Treatment Booking and the Products will be supplied in accordance with the Product Order.
The Customer must provide full and accurate disclosure to the Supplier of any illnesses, injuries or other conditions specified in the Supplier’s consultation form or which has the potential to impact the Customer’s health or well-being prior to any treatment.
The supplier will not perform Treatments for customers under 16 years of age without parental consent.
Treatment Prices are exclusive of GST and all other taxes, duties or government charges except to the extent that they are expressly included in the Treatment Price.
The charge for any variation from the Treatment Booking will be determined in accordance with the prices published on the Website, as amended from time to time.
Subject to clause 5.4, at any time up to 7 days prior to the scheduled provision of the Treatment, the Supplier may give notice to the Customer of an increase in Treatment Price to reflect any increased costs of supply to the Supplier which is beyond the Supplier’s reasonable control.
Within 3 days of receipt of a notice in accordance with clause 5.3, the Customer may cancel any affected Treatment without penalty, in which case, the Supplier will refund the Customer any amount of the Treatment Price already paid in respect of that Treatment.
If the Treatment is not cancelled within 3 days of receipt of a notice in accordance with clause 5.3, the Customer will be deemed to have accepted the increase in Treatment Price.
TREATMENT BOOKING & PAYMENT
Unless stated otherwise in the Treatment Booking, a Treatment Deposit is required to secure a booking for the Treatment.
Payment of the balance of the Treatment Price is to be made prior to supply of the Treatment and the time for payment is of the essence.
Unless otherwise agreed in writing by the Supplier, payment of the Treatment Price must be made by cash, bank cheque, credit card or EFTPOS.
If the Customer cancels a Treatment by giving not less than 48 hours’ notice, the Supplier will refund the Treatment Deposit to the Customer.
If the Customer cancels a Treatment by giving less than 48 hours’ notice, the Supplier will retain the Treatment Deposit as reimbursement for costs incurred by the Supplier as a result of the cancellation.
If the Supplier has reason to believe that it will be unable to fulfil a Treatment Booking due to circumstances beyond its reasonable control, the Supplier may, without penalty or liability, cancel the Treatment, in which case, the Supplier will refund the Customer any amount of the Treatment Price already paid.
The Customer will, at all times whilst on the Premises:
- behave responsibly;
- be courteous and respectful to the Supplier’s staff and other customers;
- ensure mobile phones are switched off or switched to silent;
- keep noise levels to a minimum; and
- act in accordance with the law.
The Supplier reserves the right to expel a Customer from the Premises for breach of the above clause:
- If a Customer is expelled from the Premises in accordance with clause 8.2, the Supplier will refund the Customer any amount of the Treatment Price paid for the Treatment not provided less:
- the Treatment Deposit; and
- any reasonable expenses incurred by the Supplier as a result of the expulsion.
PRODUCT PRICES, PAYMENT AND RISK
Product Prices are exclusive of delivery costs, GST and all other taxes, duties or government charges except to the extent that they are expressly included in the Product Price.
Unless otherwise agreed in writing by the Supplier, payment of the Product Price must be made by cash, bank cheque, credit card or EFTPOS.
The Customer must pay for the Products at the time the Product Order is made and time for payment is of the essence.
Risk of loss and damage to the Products passes to the Customer upon the Products leaving the Premises.
PRODUCT CANCELLATION & REFUNDS
If a Customer cancels a Product Order prior to dispatch by the Supplier, the Customer is entitled to a refund of the Product Price less any reasonable out of pocket expenses the Supplier incurs as a result of the cancellation.
If a Customer cancels a Product Order after the Goods have been dispatched, the Supplier, in its sole discretion, may refuse to provide a refund of the Product Price paid unless required to do so pursuant to the ACL or any other law.
If the Supplier has reason to believe that it will be unable to supply the Products due to circumstances beyond its reasonable control, the Supplier may, without penalty or liability, cancel the Product Order, in which case, the Supplier will refund the Customer the Product Price already paid.
The supplier will provide refunds in accordance with the ACL and its Refund Policy.
The purchase and redemption of gift vouchers are governed by the Supplier’s Gift Voucher Policy, which can be found at https://www.fifthelementdayspa.com.au/gift-voucher-policy
LIMITATION OF LIABILITY & INDEMNITY
To the extent permitted by law, the Customer acknowledges that the Supplier will not be liable to the Customer, including for:
- loss or damage to any property brought onto the Premises;
- indirect or consequential losses;
- losses caused by the Customer or to the extent it results from the Customer’s failure to take reasonable steps to avoid or minimize that loss;
- injury or illness suffered as a result of the Treatment, including death, which is a result of the Customer’s failure to accurately provide the information required under clause 4.2 or consult a doctor prior to undertaking the Treatment if the Customer has, or has had, any conditions set out in the Supplier’s Consultation Form, except to the extent that such loss, damage, injury or illness was contributed to by the negligent or wrongful act of the Supplier.
The Customer acknowledges that where the Customer purchases such Products “off the shelf” without specific consultation with the Supplier, or without notifying the Supplier of any particular ailment, allergy or sensitivity they may have, unless otherwise required by law:
- the Supplier cannot and does not give any advice, guarantee, warranty or undertaking in relation to the suitability of the Products for that particular Customer; and
- the Supplier is not liable for any loss, damage, injury or illness suffered by the Customer as a result of the use of the Products.
The Customer indemnifies, and keeps indemnified, the Supplier and its directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by the Customer or by the Supplier arising from any claim, demand, suit, action or proceeding by any person against the Customer or the Supplier where such loss or liability arose out of, in connection with or in respect of the Customer’s act or omission or breach of these Terms & Conditions, or use of the Products contrary to their specifications.
The Supplier will use reasonable care and skill in performing its obligations under these terms and warrants that the Treatment and the Products comply with any guarantees that apply compulsorily under the ACL.
The Treatments and Products come with guarantees that cannot be excluded under the ACL and you are entitled to a replacement or refund and compensation for any other reasonably foreseeable loss or damage for a major failure, and to have the Treatment or Products repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.
To the extent permitted by law, all other guarantees, warranties, undertakings and representations expressed or implied, whether arising by statute or otherwise, which are not given in these Terms and Conditions or any warranty document given at the time of supply are expressly excluded.
If the Customer is a Consumer and the Treatment or Products supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that the Supplier’s liability for a failure to comply with a consumer guarantee under the ACL in relation to that supply is limited, at the option of the Supplier, to one or more of the following: 13.4.1. supplying the Treatment or Product again; or the payment of the cost of having the Treatment or Product supplied again.
If the Customer is not a Consumer, to the extent permitted by law, the Supplier will not be liable in any circumstances for any loss or damage (including indirect or consequential loss) to any property or person resulting from the provision or delay in provision of the Treatment or the Products.
Neither the Supplier or Customer will be liable for delay or failure to perform an obligation in the Agreement due to circumstances beyond their reasonable control.
Nothing in this clause will excuse payment of any money due or which becomes due under the Agreement.
The Agreement may be amended by the Supplier amending these Terms & Conditions, the Treatment Booking, the Supplier’s Consultation Form and the Product Order (as applicable) for legitimate business reasons upon written notice to the Customer.
Within 3 days of receipt of a notice given in accordance with clause 15.1, the Customer may, without penalty, cancel any current Treatment Booking or Product Order, in which case, the Supplier will refund the Customer any amount of the Treatment Price or Product Price already paid.
If the Customer does not cancel its current Treatment Booking or Product Order within 3 days of receipt of a notice given in accordance with clause 15.1, the Customer will be deemed to have accepted the Agreement, as amended, and the amended Agreement will apply to all current and future transactions between the Customer and the Supplier.
The Supplier is an organisation bound by the Australian Privacy Principles under the Privacy Act 1988 (Cth). A copy of the Australian Privacy Principles are available from the Office of the Australian Information Commissioner’s website at www.oaic.gov.au.
If a dispute arises under the Agreement, the parties will attempt to negotiate a resolution by good faith negotiations.
If a dispute persists for more than 14 days, either party can refer the dispute to mediation before a mediator to be appointed by the Australian Commercial Disputes Centre.
Save for proceedings for urgent, interlocutory relief, neither party may commence legal proceedings in relation to a dispute unless the dispute resolution process outlined in this clause 17 has first been complied with.
A single or partial exercise or waiver of a right relating to these Terms and Conditions will not prevent any other exercise of that right or another right.
MEMBERSHIP TERMS & CONDITIONS
Membership is valid for the time chosen within the package.
Choose 1 treatment each month. Not transferable nor redeemable for cash. Minimum 24 hours notice for amendment of appointment or treatment will be forfeited.
Treatments may not be exchanged for any other treatments not included within this membership.
Weekly payments made via direct debit only.
Failed payment fee $21.90. Transaction Fee AMEX and Diners 4.4% min $0.99. Transaction Fee Visa & Mastercard 2.35% min $0.99.
Memberships are valid Monday through to Saturdays ONLY
Your monthly membership is charged from the day you sign up.
Your monthly membership is redeemable off your first treatment of the month, any further treatments will be an additional cost.
Memberships are a 3-month contract, please give us 2 weeks notice after the 3 months if you’d like to suspend the membership
If you are unable to attend the salon and redeem your monthly membership fee, you may offer it to a friend or family member.