TERMS AND CONDITIONS
These are the Terms and Conditions on which BodySmith Fitness (“we” or “us” or “our”) is willing to provide membership to the Fitness Business to you. Any variation to these Terms and Conditions must be in writing and signed by our authorised officer.
THIS IS AN IMPORTANT DOCUMENT – PLEASE ENSURE YOU READ IT CAREFULLY
THIS IS PART OF YOUR CONTRACT
1. Contract Rectification
We have seven (7) days after the formation of the Contract to rectify any error or miscalculation provided in the Contract.
2. Cooling Off Period
After applying for membership, you have a seven day period (“Cooling Off Period”) during which you may cancel your membership. Notice must be given in writing. A refund equal to the Membership Fee and any additional amounts paid minus the Administration Fee and the cost of any fitness services already supplied will be applicable. If you terminate your Contract after the Cooling Off Period, different conditions will apply. The following termination clauses outline your right to terminate the Contract and any fees payable in such circumstances.
3. Termination within the Minimum Term
You may terminate the Contract without additional fees prior to the expiry of the Minimum Term with immediate effect by providing us with written notice if:
– we make changes to the Contract which adversely affect you (please refer to clause 7);
– we breach our obligations to you (please refer to clause 8);
– you become subject to medical incapacity (please refer to clause 9); or
– you otherwise become entitled to do so under consumer legislation.
Staffed hours and classes will vary based on availability and demand and this is not sufficient reason to terminate within the minimum term.
4. Termination on expiry of the Minimum Term
If you have an Ongoing Contract you may provide written notice of termination at any time prior to the expiry of the Minimum Term and the Contract will then terminate on expiry of the Minimum Term.
5. Termination after the Minimum Term
If you have an Ongoing Contract you may terminate the Contract after the Minimum Term if you provide us with thirty (30) days written notice. Any unused Membership Fees after the 30 day period will be refunded. However, where either of us terminates the Contract, any unpaid fees will need to be paid by you or we may take action to recover the outstanding payments. We can refuse you entry to the Fitness Business at any time that your membership payments are not up to date.
6. Term and Termination of Periodic Direct Debit Agreements (South Australia Only)
If you have a Periodic Direct Debit Agreement, you are entitled to receive the services specified in the Membership Application for each Supply Period for which you have paid Membership Fees in advance. If you have a Periodic Agreement, you may provide written notice of termination at any time. The Contract will then terminate at the conclusion of the Supply Period which is current two weeks after you provide notice. If you have paid in advance for further Supply Periods after termination, you will be refunded the amount paid for those further Supply Periods.
7. Termination when Changes made to Terms and Conditions
You are entitled to terminate the Contract with immediate effect at any time by providing us with written notice if:
- we make amendments to these Terms and Conditions and you do not continue to use the Fitness Business as contemplated by clause 28; or
- higher Membership Fees applicable to your membership are introduced.
No fees will be applicable for terminating in accordance with this clause apart from the Administration Fee, Membership Fees for the time you have been a member and any additional fees for fitness services already supplied.
8. Termination where we Breach our Obligations
If we are in breach of our obligations under the Contract and we have not remedied that breach within a reasonable time after you have notified us of our breach in writing, you are entitled to terminate the Contract with immediate effect at any time by providing us with written notice. No fees will be applicable for cancelling in accordance with this clause apart from, to the extent not impacted by our breach, the Administration Fee, Membership Fees for the time you have been a member and any additional fees for fitness services already supplied.
9. Termination for Medical Reasons
You may terminate the Contract with immediate effect at any time by providing us with written notice if you produce supporting documentation to our reasonable satisfaction to demonstrate medical incapacity. In that event, you will only be charged the Administration Fee, Membership Fees for the time you have been a member and any additional fees for fitness services already supplied.
10. Termination for Relocation or Convenience
You may terminate the Contract with immediate effect at any time by providing us with written notice without cause or if you relocate to an area not proximate to the Fitness Business. However, in that event, unless we are in breach of our obligations under the Contract, you will be charged the Administration Fee, Membership Fees for the time you were a member, a Departure Fee referable to any amount of the Minimum Term remaining and any other fees payable for any further fitness services already supplied. If you transfer your membership to someone who is not a member, the Departure Fee will be waived. The Minimum Term for paid up front memberships is equal to the length of the membership purchased.
11. Fitness Business Rules
You must ensure you read, understand and abide by the Rules which are notified to you through signage, hand-outs or our website.
12. Right of Exclusion
We can refuse entry to the Fitness Business, cancel your membership and/or terminate the Contract without warning or notice for inappropriate threatening or harassing behaviour, theft, other illegal activities, damaging equipment or facilities or use of illegal or performance enhancing drugs in the Fitness Business. Membership fees will not be refunded under these circumstances.
13. Payment of Fees
Direct Debit Service Provider: You acknowledge that, if you choose the periodic billing option, payment will be made in advance via the direct debit service provided by BodySmith Fitness (“Direct Debit Service Provider”). You acknowledge that you have been provided with a copy of the Direct Debit Service Provider terms and conditions. You acknowledge that the Direct Debit Service Provider may amend those terms and conditions from time to time by giving 30 days notice by communicating an updated version on the Direct Debit Service Provider website, being www.ezidebit.com.au . You may contact the Direct Debit Service Provider on 1300 763 256.
Payment: All Membership Fees may be recovered from your nominated credit/debit account (as provided from time to time). Any bank fees charged to us because of a rejection when collecting your due membership fees may be charged directly to you by us or the Direct Debit Service Provider. If a Membership Fee payment remains outstanding, you agree that, unless we are in breach of our obligations under the Contract, we or the Direct Debit Service Provider may continue to debit the nominated credit/debt account for the total amount due without notice to you.
Direct Debit Service Provider Fees: Membership Fees may include a fee payable for the service provided by the Direct Debit Service Provider.
14. Administration Fee
The Administration Fee is a fee used for all set up costs of a new or a renewing membership. The Administration Fee is not refundable, even if you choose to cancel your Membership Application during your Cooling Off Period.
15. Membership Fee Increase
If you have an Ongoing Contract or a Periodic Agreement then, subject to your rights in clause 7, we reserve the right at any time after the Minimum Term of the Contract, to increase the Membership Fees to be charged. If we increase Membership Fees we will provide at least two weeks prior notice of the increase by post or email to the addresses provided by you in the Membership Application. Following such notice, you authorise us to increase any direct debits to your credit card or bank account which you have authorised upon joining. We will not use this right to vary the terms on any special offer which applies to you.
Membership suspension is available provided that all amounts payable for your membership are paid up to date. You can suspend your membership for travel, medical or other reasons permitted by the Rules upon provision of satisfactory supporting documentation. All suspensions must be applied for in writing to us at least fourteen (14) days prior to the commencement of the suspension period. Debit payments will only be suspended for the direct debits that fall within the suspension period. Pro rata amounts apply when suspension is applied outside of your normal fortnightly debit period.
17. Damages/Personal Injury
Warning: Whilst in the Fitness Business you may suffer injuries including broken bones, soft tissue injuries and joint injuries. Any injuries suffered by you may occur as a result of weights striking you, collision with equipment or other members or as a result of you slipping on wet flooring.
Warning: (VICTORIA ONLY)
WARNING UNDER THE FAIR TRADING ACT 1999 Under the provisions of the Fair Trading Act 1999 several conditions are implied into contracts for the supply of certain goods and services. These conditions mean that the supplier named on this form is required to ensure that the recreational services it supplied to you are – rendered with due care and skill; and as fit for the purpose for which they are commonly bought as it is reasonable to expect in the circumstances; and reasonably fit for any particular purpose or might reasonably be expected to achieve any result you have made known to the supplier.
Under section 32N of the Fair Trading Act 1999, the supplier is entitled to ask you to agree that these conditions do not apply to you. If you sign the Contract, you will be agreeing that your rights to sue the supplier under the Fair Trading Act 1999 if you are killed or injured because the services were not rendered with due care and skill or they were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in these Membership Terms & Conditions. NOTE: The change to your rights, as set out in these Membership Terms & Conditions, does not apply if your death or injury is due to gross negligence on the supplier’s part. “Gross negligence” is defined in the Fair Trading (Recreational Services) Regulations 2004.
Acknowledgements (VICTORIA ONLY): You acknowledge that you will use your best endeavours to exercise safely and that you will not take valuables into the Fitness Business. We will comply with the statutory conditions set out above by ensuring that the services supplied to you are rendered with due care and skill; and as fit for the purpose for which they are commonly bought as it is reasonable to expect in the circumstances; and reasonably fit for any particular purpose or might reasonably be expected to achieve any result you have made known to us. The exclusion of liability below applies to death and personal injury but does not operate to excuse any breach by us of the statutory conditions referred to above that result in loss or damage to your personal property.
Limitation of Liability, Release and Indemnity: We will, unless excused from liability by operation of statute, compensate you for death, personal injury, illness or property damage caused by gross negligence on our part and for loss and damage to your personal property arising from our failure to supply services to you with due care and skill and in a manner fit for the purpose which is reasonable to expect in all the circumstances. In consideration of the grant of membership to you, entitling you to engage in fitness activities, you hereby otherwise:
- agree, to the extent permitted by law, to not hold us liable for any actions, suits, proceedings, claims, demands, losses, damages, penalties, fines, costs and expenses however arising that you may have had but for this clause arising from or in connection with your involvement in fitness activities in the Fitness Business or using our facilities, services or products;
- agree that you will indemnify us to the extent permitted by law in respect of all actions, suits, proceedings, claims, demands, losses, damages, penalties, fines, costs or expenses however arising as a result of or in connection with your involvement in fitness activities in the Fitness Business or from using our facilities, services or products.
18. Direct Debit Service Provider
You acknowledge that the Direct Debit Service Provider is not a party to the Contract and its only role is to provide direct debit services to us. You may have separate rights against the Direct Debit Service Provider pursuant to the Direct Debt Service Provider terms and conditions. You otherwise agree not to hold the Direct Debit Service Provider liable for any actions, suits, proceedings, claims, demands, losses, damages, penalties, fines, costs and expenses arising from or in connection with your involvement in fitness activities in the Fitness Business or otherwise in connection with the Contract.
19. Risk Management
To mitigate risk and ensure that you correctly operate or use any of our facilities, services, products or equipment, including the adjustments of levels or settings on any equipment, you are required to undertake an instructional consultation with a member of our staff before use.
20. Responsibility for Damage
You are solely responsible for any damage which you may cause to the Fitness Business, its facilities, services, products or equipment, if such damage is caused by your willful act and/or negligence.
21. Disclosure of your Physical Condition
Provision of a safe and effective exercise program is dependent upon accurate health and fitness profiling. You agree to disclose to us all relevant personal health and fitness information both prior to and during engagement in any exercise program, service or facility we provide to you, as a part of your membership. This is inclusive of any health risk assessment, initial and periodic fitness assessment and relevant information or recommendations provided by your medical or allied health practitioner/s. You further warrant and represent that you will not use the Fitness Business or any of our facilities, services or products whilst you are suffering from any infections or contagious illness, disease or other ailment or whilst you are suffering from any physical ailment such as open cuts or sores or minor infections where there is a risk, however small, to other members and guests.
22. Change of Details
You must keep us promptly informed of any change of address, phone contact numbers, email address, bank account and credit card details for payment and any other personal information that is relevant to your membership with us.
Contractors and franchisees may provide services at the Fitness Business. Fees for such services are paid directly to the contractors and franchisees. We take no responsibility for the fees paid to these contractors and franchisees. You hereby agree not to hold us liable and you agree to indemnify us and keep us indemnified for any claims suffered by you as a result of an act or omission by a contractor or franchisee in the Fitness Business.
You must not assign any rights or benefits under these Terms and Conditions unless you have obtained our prior written consent. We may assign or transfer any rights or benefits under these Terms and Conditions at any time without notice to you. However, we will remain liable to meet our obligations to you under these Terms and Conditions and the Contract.
25. Intellectual Property
These Terms and Conditions do not give you any intellectual property rights in the Fitness Business, or in our facilities, services or products.
26. Privacy Statement and Acknowledgement
During the process of entering into the Contract with you and during the term of the Contract we will obtain access to certain types of your personal information, such as information relating to your health and financial position. We will only use, and the Direct Debit Service Provider will only use, disclose or deal with such information in accordance with our Privacy Statement. A full copy of our Privacy Statement is available from reception during staffed hours.
27. Governing Law
These Terms and Conditions are governed by, and you agree to submit to, the laws applicable in the state or territory of Australia in which the Contract was formed.
We may, subject to your rights in clause 7, alter these Terms and Conditions or the Rules at any time upon thirty (30) days written notice. All use of our Fitness Business and its facilities, services and products after the date specified in such notice will be subject to such altered Terms and Conditions or Rules. If you continue to use our Fitness Business and its facilities, services and products after the date such alterations become effective or otherwise demonstrate by your conduct that you agree to the altered Terms and Conditions or Rules, you will be deemed to have agreed to the altered Terms and Conditions or Rules.
29. Your Obligations
You acknowledge that the Consumer Credit Code does not apply to these Terms and Conditions.
If, at any time:
– you believe that you may not or may be unable to perform or comply with your obligations under these Terms and Conditions;
– you are unable to pay your Membership Fees, including any installment of Membership Fees, as they fall due for payment;
– a cheque received from you is dishonoured;
– you are or become bankrupt; or
– your Membership Fees are overdue and are not paid in accordance with these Terms and Conditions in circumstances where we have not breached our obligations under the Contract,
you agree that:
– you will immediately notify us that one or more of the above notifiable events has occurred and you will keep us notified on a monthly basis until such notifiable event no longer exists;
– we have no obligation and will cease to allow you to use any of our services or products available to you under your membership while a notifiable event exists;
– we may terminate the Contract with immediate effect by providing you with written notice;
– we may request payment in advance for the remainder of the term of your membership; and
– we have no obligation to respond to any offer you make to extend or renew your membership while a notifiable event exists.
If any part of this Contract is or becomes illegal, void or unenforceable, this does not invalidate the rest of this Contract.
RULES OF THE FITNESS CENTRE
BodySmith Fitness wants you to have a great experience every time you use our facility. For that reason we must impose a few “common sense” terms and conditions.
Our centre is monitored by CCTV 24 hours and anyone found to be ignoring these rules may have their gym memberships terminated without refund. Please consider that these rules protect your experience from others also.
Minimum Age for ‘Staffed Hours Only’ is 13 years, ’24 Hours Unsupervised’ is 16 years. Members under 18 years require guardian to sign. Certain training packages may include provision for younger members strictly under supervision (I.e. Juniors karate classes).
Use of facilities and equipment is done at your own risk and orientation must be completed during staffed hours before commencing normal use of the gym or after hours access.
Any health risks or concerns must be declared to fitness centre management and any persons potentially at risk must obtain the appropriate medical clearance before commencing normal use of the gym.
No food or drinks (other than water) are allowed in the equipment areas. No smoking anywhere in the building.
Appropriate clothing must be worn at all times, including purposed closed footwear around equipment.
Do Not Use damaged equipment. Please report any damage to equipment or building immediately. Always be courteous and respectful of others and leave all facilities and equipment clean and tidy. Please return all equipment to its proper place and wipe down equipment after use.
Staffed hours and classes may vary based on demand and requirements.
Rules of the Fitness Centre may be updated without notice but will only reflect common sense or reasonable ongoing concerns.
Gym membership at BodySmith Fitness is provided for the purpose of achieving health and fitness. The premises must not be used for any other purpose without authorisation from management.
All members are required to use a towel for the duration of their workout. If you do not have a towel one may be purchased from reception during staffed hours.
Neither aggressive or unsociable behaviour, nor foul language will be tolerated. Be nice.
Memberships are provided for use only by the owner of the membership and are not to be lent or shared with any other persons. Members found bringing a friend without authorisation may have their membership terminated or fined. Members wanting to bring a friend can find the appropriate steps on the website at www.bodysmithfitness.com.au/bring-a-friend/
Please accept there is a time limit on cardio machines of 20 minutes during busy periods. If there are no other cardio machines available of the type that you are using, you should not exceed this time limit.
Personal training sessions are to be conducted by authorised BodySmith Fitness trainers only. Others wanting to use the facility for this purpose should direct enquires to Fitness Centre Management.
Please use equipment properly and the way it was intended to be used only. Instructions can be found either on or near the equipment, at the front desk or by asking staff.
Please keep disruptive noise to a minimum. Although we all desperately want to hear how hard you’re working, if it becomes disruptive, you will be expected to adjust your volume.
Please be aware that membership payments are made in advance and overdue members may be automatically locked out by the management access system.
Please adhere to any and all signage posted around the gym regarding use of equipment and courtesy toward others.
BodySmith Fitness (“we” or “us” or “our”) respects your privacy and we are committed to the protection of personal information. We follow the National Privacy Principles in the Privacy Act 1988 (Cth).
The purpose of this Privacy Statement is to let you know how we collect, use and disclose personal information.
We collect personal information so that we can provide you with our services and products and to manage our activities. We only collect personal information that is relevant and where necessary.
The type of personal information we collect will depend upon the reason for its collection. Generally, for the provision of health and fitness services this may include address and contact details, date of birth, next of kin, health service provider details and medical record details. If you are interested in our services and products, the type of information we collect will include financial details.
- directly from you, such as when you:
- contact us about our services or products;
- fill in an membership application form;
- subscribe to our newsletters or mailing lists;
- enter your personal details on our website (for example during registration or application for membership); provide information by phone or in documents sent by fax or email;
- enter promotions, competitions or giveaways; or
make a payment or donation to us;
- from other health professionals;
- from organisations which we might be working together with when providing you with services or products;
- from your representatives including guardians, trustees, executors and attorneys;
- from publicly available sources of information;
- from credit-reporting and fraud-checking agencies and credit providers for credit related purposes such as creditworthiness, credit rating, credit provision and financing;
- from our own records of your dealings with us; or when legally required to do so.
- Where reasonable and practicable, we collect personal information directly from you rather than a third party. In an emergency, we may need to collect information from a family member, friend, carer or other person.
- When we collect personal information, we collect it in a way that is lawful, fair and not intrusive.
- We do not collect sensitive information about you without your consent.
Use & Disclosure
Except as provided for in the case of our Direct Debit Service Provider below, personal information which we have collected for a particular purpose will not be used for any other purpose, unless the purpose is related to the main purpose for which we collected the information and you would reasonably expect us to use or disclose the information for that other purpose.
Personal information which we collect may be used by us:
- to identify you;
- in providing services or products to you and the administration and management of those services and products;
- to provide you with information about our services and products;
- to develop and improve our services to you;
- for fundraising purposes;
- in undertaking risk assessment and management; or
- in gathering data and disclosing data to third parties such as:insurance brokers and insurers;
- credit reporting agencies;
- financial institutions including our own bankers;
- our professional advisors, including our accountants, auditors and lawyers; service providers;
- and industry groups having a legitimate reason to receive such information,
We collect personal information about you in a number of ways including:
as necessary from time to time for our organisation’s functions.