1. Plain terms
These terms use fairly plain language, so we want to make sure that some of the words and concepts used are easily understood. For instance, we have included clause headings as a guide but these do not form part of this agreement. Certain recurring words are defined in the details and elsewhere in this agreement and other form of those words have equivalent meaning.
2. Responsibility for members under 18
By signing on behalf of a child, the parent or guardian agrees to be responsible for ensuring the child exercises safely, pays their membership fees and otherwise follows these terms. The parent or guardian who signs this form also agrees to hold the fitness business harmless in respect of any claim made by or on behalf of the child against the fitness business to the extent that any such claim would have been excluded under this agreement, had the child been an adult and signed this agreement on his or her own behalf.
3. Safety first!
The health and safety of members is important to us. This clause sets out some of the things we require of you to help achieve that objective.
(a) Your physical condition
A safe and effective exercise program is dependent upon accurate health and fitness profiling. It is therefore essential that you tell us in writing all relevant personal health and fitness information both before (through our pre-exercise questionnaire or otherwise) and during the course of any exercise program or other activity. You promise that information you disclose to us to be true and accurate and not misleading in any way. You must not attend and use the facilities and services whilst you are suffering from any illness, disease, injury or other condition that could present a risk to the health or safety of other members and guests or yourself. If you happen to use the facilities and services before disclosing relevant health information to us, you promise that you are in good physical conditions and you do not know of any reason why you may not be able to exercise safely. If you feel unsure that you cannot make this promise, we ask that you do not use the facilities and services until we have completed your health and fitness profile. If you have any health or medical concerns you should bring these to the immediate attention of your doctor. You acknowledge that we do not and cannot give you medical advice.
(b) Proper use of equipment
We will provide you with an instructional consultation with a staff member before using the facilities and services which you must attend before use. In any case, you promise to take care when using the facilities and services and make sure that you use the facilities and services including equipment safely. If you are not sure how to operate any equipment properly, please ask a staff member before using it.
(c) Rules of good behaviour
We display rules that apply to everyone using the facilities and services in order to promote health and safety and the protection of property (our rules). Please make sure that you read our Rules carefully and ask us if there is anything you are not sure about. We may occasionally update our Rules to further promote health and safety or to make improvements. We will seek to tell you of any changes as set out below, though we expect you to keep familiar with the current version of our Rules by reading our website and signage on a regular basis. If you break our Rules, the response we take will be at our reasonable choosing and we will try to exercise this right fairly by giving you a warning if we consider the failure is less serious. In this regard however you acknowledge that health and safety of all users and protection of property is very important. Accordingly, if we reasonably consider the failure to follow our Rules is serious or persistent we may suspend or even cancel your membership with immediate effect.
(d) We can refuse you entry
We can refuse you entry to the facilities and services or cancel your membership immediately if you behave in a way that is seriously risky or inappropriate, such as if you threaten or harass others, deliberately or recklessly damage equipment or facilities or if you use or distribute illegal or performance enhancing drugs.
(e) Please follow our directions
You agree to follow any reasonable direction of a member of our staff relating to health and safety or any other matter.
5. We take your privacy seriously
(b) Video monitoring
We may use video monitoring and photography in our facilities for health, safety and security reasons. If you have any queries in relation to the use of monitors operating in and around our facilities, please contact us.
(c) Please keep your contract details up to date
You promise to tell us promptly if you change your address, phone number, email, bank account, credit card information for payment or if there is a change to any other personal information relevant to your membership with us. Thisincludes any matters that affect the health or safety of you orothers.
6. What you get when you join
You are entitled to the membership benefits and use of the facilities and services that apply to the Membership Type you selected.
7. When can you put your membership onhold
You may temporarily suspend your membership for travel or medical reasons if all amounts payable for your membership are paid up to date and, if your membership is for a Fixed Term, it has more than two weeks left to run. You will need to produce satisfactory supporting documentation when you apply for a suspension. You must apply for a suspension as soon as possible after you become aware of the relevant circumstances. We are entitled to charge you a suspension fee for processing your application. In any 12 month period, we are not obliged to suspend your membership on more than two occasions. While your membership is suspended, the term will be extended and we will freeze any direct-debit payment that fall within the suspension period.
8. Ending your Membership
For the purposes of any requirements in this agreement you must give us written notice, we will accept notification by email or registered post. You must return your facility access key to us at the end of your membership.
8.1 Fixed Term and Ongoing
If your membership is for a Fixed Term, you do not need to do anything, as it will automatically end when the term expires. We will seek to remind you before the end of your membership in these circumstances in order that we can discuss renewal of your membership. You may not cancel your membership during the term, except in the event of permanent sickness or physical incapacity. Your disability must physically prevent you from using any of the equipment and a licensed physician must verify this fact in writing. In such a case, Oxley Fitness 24/7 will offer pro-rata refund less an administration fee of $35. If your membership is ongoing, it will continue after your 3-month Minimum Term and you can thereafter cancel by giving us 30 days prior written notice (by email, registered post, or by completing a cancellation form onsite). To be an effective cancellation you must return your facility access key. Any unpaid fees will need to be paid by you and in addition to our rights we may have including our taking action to recover the outstanding payments. Oxley Fitness 24/7 Gym engages Marshall Freeman (ABN 81104876995) Debt Recovery Specialists.
8.2 You can transfer your membership
We will consider any request to transfer your membership and may agree to the transfer at our reasonable choosing, subject to satisfaction of reasonable eligibility conditions and your payment of the transfer fee ($35). The transferee must not currently be a member.
8.3 When can we end your membership?
In addition to our rights under this agreement, we can terminate your membership by written notice to you if you fail to act in accordance with any obligation under this agreement and if capable of remedy you do not remedy the failure within a reasonable time of us giving you written notice requiring you to do so. However, we will not seek to end your membership in this way if you have failed to make a payment and we are also in breach of a material condition of this agreement. If we cancel this agreement under this paragraph you will be liable for the joining fee, membership fees for the time you were a member, the cancellation fee and any other fees payable for further fitness services already supplied. On rare occasions, we may cancel a membership by written notice to the member without a need to give a reason.
9. Fees you have to pay for your membership
If you fail to make any payment when due, we can suspend your membership and refuse your access to the facilities and services until all outstanding amounts have been paid in addition to our other rights under these Terms. Fees and charges continue to accrue during the suspension.
(a) Joining fee
We may charge you a joining fee to cover the set up costs for a new membership. The joining fee is non-refundable.
(b) Membership fees
If your membership is for a Fixed Term you can pay your membership fees up front when you submit the membership form. If your membership is Ongoing, membership fees must be paid periodically in advance until your membership ends.
Suspension of membership may be possible under the terms of your membership agreement. At our discretion, payment of $5 per week may be applicable for a minimum of 2 weeks at a time so long as the total time suspended within 12 months does not exceed 4 weeks. In order to suspend payment the club must be notified in writing at least 14 days prior to the sate of the first suspended payment.
(d) Fee increases
We may increase your membership fees or any other fees, except for the pre-paid and fixed term fees. Otherwise you accept that we have the authority when applicable and within reason to adjust membership dues from your nominated credit or debit account.
(e) Refunds and the Credit Code
We are entitled to deduct all fees and charges that you must pay under this agreement from any refund we give you. The National Credit Code does not apply to this agreement.
10. When you pay by direct debit
(a) Authorisation to deduct fees
By nominating a credit or debit account, you are authorising us to deduct from that account all fees and other charges for which you may be responsible under this agreement. Accordingly, it is essential that you keep your account details up to date.
(b) If your payment is late or rejected
You are responsible for making sure that there is enough money in your nominated account on the usual payment day or the next working day if that falls on a day when banks do not process payments. Any bank fees charged to us because of a rejection when we attempt to collect payments from you may be charged directly to you by us (or by the Direct Debit Provider).The cost of the bank charge plus an administration fee totals $15 for each failed payment. If a payment remains outstanding, you agree that, unless we are in breach of our obligations under these Terms, we (or the Direct Debit Provider) may continue to debit the nominated account for the total amount due without notice to you.
(c) Direct debits
If you choose to pay fees by direct debit, then this will be through Ezidebit Pty Ltd ACN 096 902 813 (“Direct Debit Provider”). We will provide you with a copy of the terms and conditions that apply to the direct debit services. Those terms and conditions are entirely separate to this agreement and you may have rights and obligations under those terms and conditions. As such, the Direct Debit provider acting in its capacity as such has no liability to you in connection with your involvement in exercise actives under this agreement.
11. Changes to your membership
We may need to make changes to this agreement including our rules during your membership. However, we will always try to do this in a way that is fair by giving you an opportunity to cancel your membership if you do not agree to the change as described in this clause below. We will tell you in writing of the proposed change in advance and tell you the date that it will come into effect. This effective date will be at least 30 days from the date of our notification unless it is impractical for us to do so. Your membership will be amended with effect from the effective date. If however, you are adversely affected by the change, you may cancel your membership by telling us in writing before that date. Please note you cannot cancel under this clause if we are required to make the change in order to comply with a law or any direction of a competent authority.
12. Our Liability to you
(a) Statutory guarantees
ACL: The Australian Consumer Law contained in the competition and consumer Act 2010 (Cth) (CCA) Proves certain guarantees in sections 60 to 62 (Statutory guarantees) which generally require that services supplied to you:
- are rendered with due care and skill
- Are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier and might reasonably be expected to achieve any result you have made known to the supplier and
- are supplied within a reasonable time (When no time is set).
Permitted exclusion: However, the CCA permits a supplier to recreational services to ask you to accept some limitation on those statuary guarantees. Accordingly, to the extent permitted by section 139A of the CCA, you acknowledge and agree that we exclude all liability to you for death or injury resulting from a failure by us to comply with any statutory guarantee.
In the previous sentence “injury” means:
- Physical of mental injury (including the aggravation, acceleration or recurrence of such aninjury)
- the contraction, aggravation or acceleration of a disease:or
- the coming into existence, the aggravation, acceleration or recurrence of any conditions, circumstance, occurrence, activity, from behaviour, course of conduct or state of affair in relation to you that is or may be harmful or disadvantageous to you or the community, or that may result in harm of disadvantage to you or the
Reckless conduct: This exclusion of liability does not apply if you have suffered a significant personal injury that is caused by our reckless conduct (within the meaning given to those terms by the CCA).
(b) General exclusions
Please note that nothing in this agreement excludes, restricts or modifies any term, conditions, warranty, guarantee, right or remedy (including under a statutory guarantee) which cannot lawfully be excluded, restricted or modified. Otherwise, and except as expressly included in this agreement, all implied terms, conditions, warranties, rights or other additional obligations that can be lawfully excluded are excluded from this agreement. In particular, but subject to the preceding paragraph, we are not liable for:
Negligence; of breach of terms implied that services will be provided reasonable care and skill, at common law that in either case results in your death or injury (as defined in paragraph (a) above) in connection with or under this agreement, but to avoid doubt we do not exclude liability for our reckless conduct.
(c) You promise that you will not unnecessarily bring valuables into the facility, the security of unattained property inthe facility is not part of the service we provide under this agreement. We will not be responsible for any loss or damage to your
13. Your responsibility for damage
You agree to pay for any damage to the facility caused by you or your guest through a wilful act of negligence.
(a) Unexpected events
We are not liable to you if you cannot use your membership due to anything beyond our reasonable control. If that failure or delay continues for more than 30 days, then either you or we can cancel this agreement with immediate effect by telling the other in writing. We are entitled to make part or all the facilities unavailable for up to two weeks during each calendar year to undertake maintenance, repairs or improvements, in which case we will extend your membership by the time you are unable to use the facilities.
(b) Our logo and intellectual property
No rights in relation to our logo, trademarks or any intellectual property rights associated with our business, techniques, exercise programs or classes are granted to you under this agreement, except that an exercise program created for you may be used while you are a member for the purpose of your exercise activities.
(c) Transferring this agreement
We can transfer the rights or benefit under this agreement or sub-contract our obligations under this agreement to athird party at any time without notice to you but in doing so we will make sure that the transferee agrees to honour the terms of yourmembership.
If a court finds that any part of terms of this agreement is or becomes illegal, void or unenforceable, that part is deleted and this does not invalidate the rest of this agreement. If we do not enforce our rights under this agreement at any time, it does not mean that we may not do so on future occasions.
(e) Applicable law
The law of Queensland applies to this agreement.