OCBA - For Service Providers

For Service Providers

Recreational Services & Fair Trading Laws: For Service Providers

From 1 January 2011:

Q: Do fair trading laws affect suppliers of recreational services?
A: Under sections 60 and 61 of the Australian Consumer Law (SA), if a person in trade or commerce supplies services (including recreational services), there is a statutory guarantee that those services —
will be rendered with due care and skill; and
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
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).

Further information about the Australian Consumer Law can be found on http://www.ocba.sa.gov.au/acl/index.html

Q: Can I ask people to give up their fair trading rights?
A: Under section 42 of the Fair Trading Act 1987, you are entitled to ask a consumer to agree to exclude, restrict or modify some of your liability.

Q: Are there any special requirements?
A: Yes. A term of a contract that purports to modify, exclude or restrict your liability will not be effective unless:
the term is in the prescribed form;
the term was brought to the attention of the consumer and any third party consumer prior to the supply of the services. A third party consumer is a person for whom or on whose behalf the consumer is acquiring the services; and
the consumer has signed and dated the completed form.

Q: Am I required to give the consumer a copy of the form?
A: If the consumer requests a copy of the signed and completed form, you must give the consumer the copy within 7 days of the request.

Q: What about children under 18 years of age?
A: 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.

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