Contents
- Introduction and Acceptance
- Membership Details
- Term
- Cooling Off Period
- Participant's Obligations
- 24/7 Use
- Payment
- Debt Recovery
- Suspension of Membership
- Transfer of Membership
- Third Party Goods and Services
- Liability and Indemnities
- Warranties
- Privacy
- Cancellation
- Dispute Resolution
- Notices
- General
- Definitions
- Appendix A – Pre-Activity Questionnaire
- Appendix B – Agreement and Waiver
- Appendix C – DDR Service Agreement
Introduction and Acceptance
- a.This Agreement applies to your membership with Adapt Fitness 24/7 Pty Ltd ACN 685 649 576 (Adapt Fitness, we, us, our), operating the gym at 123 Macleod Street, Bairnsdale VIC 3875 (Gym).
- b.By ticking a checkbox, clicking "I agree", signing electronically, or otherwise accepting this Agreement during the sign-up process, you agree to be bound by this Agreement. If you access the Gym after being provided with this Agreement, you acknowledge that your access and membership are subject to this Agreement. If you are under 18 years of age, your parent or guardian must accept this Agreement personally and on your behalf.
- c.By accepting this Agreement, you acknowledge that you have read and understood the Waiver, risk warnings and Victorian recreational services warning in this Agreement, and agree to them to the extent permitted by law.
- d.Adapt Fitness will retain records of your acceptance of this Agreement, including the Waiver/disclaimer, the Victorian recreational services warning and your Pre-Activity Questionnaire (PAQ) responses, for at least 7 years in accordance with its insurance obligations.
Membership Details
1.
Your Membership Details are the membership details provided to or accepted by you at sign-up, including through the website, online checkout, ClubFit, the member portal, an app, an email confirmation, your membership profile, or any other written or electronic sign-up process used by Adapt Fitness. Your Membership Details set out your identity and contact details, Membership Plan, Commencement Date, Minimum Term (if any), Fees, billing frequency, payment method, inclusions and access rights, cancellation consequences, any disclosed dishonour, replacement fob, tailgating or other fees, and any special conditions.
Term
2.
This Agreement commences on the Commencement Date and continues:
- a.for the prepaid Minimum Term specified in the Membership Details for Upfront Membership Plans, and does not auto-renew unless expressly agreed;
- b.for the Minimum Term specified in the Membership Details for fixed term Direct Debit Membership Plans, and then automatically continues on a no-lock-in Direct Debit basis, on the same terms, until cancelled in accordance with this Agreement (unless your Membership Details or checkout details state otherwise); and
- c.for no-lock-in Direct Debit Membership Plans, until cancelled in accordance with this Agreement.
Cooling Off Period
3.
You are able to cancel this Agreement without incurring any cancellation Fees, if you notify us of your intent to cancel in writing within 7 days of accepting this Agreement (Cooling Off Period).
Participant's Obligations
Capacity and Age
- a.The Member warrants that they:
- i.have the legal capacity and are of sufficient age to enter into a binding contract with us; and/or
- ii.are the parent or guardian of the Member who consents to this Agreement on behalf of the Member.
- b.The Member acknowledges and agrees that:
- i.the Gym is unstaffed 5am–7am, 10am–3pm, and 6pm–8pm daily;
- ii.they must not be under 13 years of age (in which case they must not become a Member);
- iii.if they are aged between 13 and 15 years, they may only attend the Gym if accompanied at all times by a parent, guardian or approved carer; and
- iv.if they are aged 16 or 17 years, they may attend the Gym independently only with their parent or guardian's consent to this Agreement.
Pre-Activity Obligations
4.
The Member warrants that, on or prior to the Commencement Date, they:
- a.will complete the PAQ through Adapt Fitness' or ClubFit's onboarding process, as referred to in Appendix A; and
- i.if they answer 'yes' to any of the questions contained in the PAQ, obtain a doctor's certificate stating that they are allowed to participate in the Activities; or
- ii.acknowledge that if Adapt Fitness reasonably requires medical clearance and they do not provide it, Adapt Fitness may refuse or suspend their access to the Gym or particular Activities;
- b.have accepted the Waiver located in Appendix B;
- c.have accepted the DDR Service Agreement (where applicable) in Appendix C; and
- d.accept any Third Party Terms, in accordance with clause 10.
General
- e.The Member must provide Adapt Fitness with all documentation, information and assistance reasonably required for Adapt Fitness to provide the Activities.
- f.The Member must participate in any briefings and/or introductions as notified by Adapt Fitness prior to engaging in any Activities.
- g.If you are the Member's parent or guardian and the Member is under the age of 18, you must ensure that the Member complies with these terms, and agree to the terms of this Agreement in respect of the Member.
Instructions and Safety
5.
The Member warrants that they:
- a.will undertake an instructional induction with Adapt Fitness' Personnel prior to using the Gym or engaging in the Activities whereby the Member will be shown the Gym, emergency exits, duress lanyard and button locations, security cameras, safety features of the equipment and other facilities, and will be required to complete a checklist to confirm completion;
- b.comply with any safety guidelines, instructions and/or rules that Adapt Fitness' Personnel provide to them;
- c.stop participating in any Activities, and alert Adapt Fitness or its Personnel, if the Member has any concerns about their health or safety or if they start feeling dizzy, faint, unwell or feel any unusual pain during the Activities; and
- d.be responsible for their own safety and that of any person under the age of 18 years for whom they have signed responsibility.
Health and State of the Participant
6.
The Member warrants that they:
- a.must disclose any pregnancy, injury, illness, medication, disability or health condition that may affect their safe participation in the Activities, and obtain medical clearance where appropriate or reasonably requested (Condition);
- b.will notify Adapt Fitness immediately if they develop a Condition;
- c.are aware and agree that if they have a Condition, Adapt Fitness might refuse them participation in some and/or all Activities;
- d.are aware that the Activities, even when no accident occurs, may involve risk to health;
- e.will not participate in the Activities under the influence of drugs, alcohol or illicit substances;
- f.will not participate in the Activities, if ill, injured or feeling unwell; and
- g.will warm-up prior to participating in the Activities.
Gym Use
7.
The Member must:
- a.use the access fob/key tag issued to them by Adapt Fitness each time when entering the Gym;
- b.cover any surfaces at the Gym, including all equipment and exercise mats, with a clean towel during use and wipe down each piece of equipment after use;
- c.not use abusive, offensive or threatening language or behaviour while at the Gym;
- d.at all times wear clean clothing appropriate to the Activities they are undertaking and/or as instructed by Adapt Fitness from time to time (jeans, work clothes, boots, or clothing with offensive or inappropriate images are not permitted);
- e.wear enclosed footwear at all times while at the Gym;
- f.not enter the Gym under the influence of drugs or alcohol;
- g.not smoke, consume alcohol, drugs, foods, and/or chew gum at the Gym;
- h.not use the equipment and/or facilities without seeking instructions from Adapt Fitness Personnel if the Member is not familiar with the equipment and/or facilities;
- i.not intentionally drop weights, and return them to their correct place after use;
- j.not film or photograph other members without their consent;
- k.not provide unauthorised personal training services to other members;
- l.immediately stop using, and report to Adapt Fitness, any equipment that is damaged or appears unsafe;
- m.not engage in harassment, bullying or threatening behaviour towards other members or Adapt Fitness Personnel; and
- n.in an emergency, call 000 first.
Possessions
- o.The Member is responsible for their possessions while at the Gym. To the extent permitted by law, Adapt Fitness is not responsible for loss, theft or damage to personal belongings, vehicles or vehicle contents, unless caused by Adapt Fitness' negligence, breach of this Agreement or breach of law.
- p.If storage areas, shelves, lockers or pigeonholes are made available, they are provided for convenience only and are used at the Member's own risk, subject to any rights that cannot be excluded by law.
Carpark
8.
If car parking is made available at the Gym, it is provided for convenience only, is used unsupervised and at the Member's own risk, and, to the extent permitted by law, Adapt Fitness is not responsible for loss or damage in connection with the Member's use of the car park unless caused by Adapt Fitness' negligence, breach of this Agreement or breach of law.
Guests
- a.You may only bring guests to the Gym if:
- i.you obtain the permission of Adapt Fitness' Personnel to do so; and
- ii.the guest visits the Gym during Staffed Hours, unless expressly permitted otherwise by Adapt Fitness in writing.
- b.Guests or individuals doing a session pass are required to complete a casual visit form and waiver on the ClubFit portal.
Access Fobs
- c.Adapt Fitness will issue the Member with an access fob to gain secure entry to the Gym at no charge. The Member is encouraged to return the access fob to Adapt Fitness if their membership ends.
- d.The Member must not share their access fob/key tag with anyone else and not use it to give access to the Gym to other people, including other members.
- e.The replacement fee for a lost or damaged access fob/key tag is the amount disclosed in your Membership Details, ClubFit portal, website or member portal.
24/7 Use
Conditions
9.
If your Gym provides 24/7 Access and you access the Gym outside the Staffed Hours you understand and agree that:
- a.you will be using the Gym and any facilities and equipment unsupervised, and as such you voluntarily expose yourself to higher risk of serious injury;
- b.there might not be anyone at the Gym to assist you in case of an accident;
- c.Adapt Fitness' liability to you will be limited in accordance with this Agreement, specifically the liability clauses;
- d.some areas, such as staff-only or storage areas identified by signage (Restricted Areas), will be out of bounds outside of the Staffed Hours and/or not included in your Activities and you will not be able to use the Restricted Areas;
- e.you must not undertake any activity that Adapt Fitness notifies as requiring supervision; and
- f.you must not bring any person with you to the Gym, unless expressly permitted by Adapt Fitness in accordance with the Guests clause.
Consequences of Breach
- g.If you breach the 24/7 access, guest, tailgating or access fob rules in this clause, Adapt Fitness may, depending on the seriousness of the breach:
- i.issue you with a warning;
- ii.charge you any disclosed tailgating or unauthorised access fee set out in your Membership Details, ClubFit portal, website or member portal;
- iii.require you to complete a further induction before you may continue to access the Gym;
- iv.suspend your 24/7 access while permitting access only during Staffed Hours;
- v.suspend your access to the Gym altogether; or
- vi.terminate your membership for a serious or repeated breach.
- h.Adapt Fitness may suspend your access immediately, without prior notice, where reasonably necessary for safety, security, suspected tailgating or unauthorised access, or to protect people or property, pending further investigation.
Payment
Fees
- i.The Member must pay the Fees to Adapt Fitness, in the amounts and at the times set out in your Membership Details or as otherwise agreed in writing.
- j.Your Membership Plan, Fees, billing frequency, Minimum Term, inclusions, applicable discounts, cancellation consequences and any special conditions are set out in your Membership Details, online checkout, ClubFit portal, website membership page or other written membership details provided to you at sign-up.
Direct Debit
10.
If the Member's Membership Plan is a Direct Debit Membership Plan, the Member:
- a.agrees to enter into a Direct Debit Request Service Agreement with ClubFit located in Appendix C to this Agreement;
- b.authorises Adapt Fitness and/or ClubFit to debit the Member's nominated payment method in accordance with the Membership Details and DDR Service Agreement;
- c.acknowledges and agrees that ClubFit may charge a transaction or processing fee for each direct debit payment, as disclosed to the Member at sign-up;
- d.must ensure that there are sufficient funds available in their account and that their payment details are kept current, to allow ClubFit to debit the Fees payable;
- e.must give Adapt Fitness a notice of at least 48 hours if:
- i.the Member is transferring or closing the account specified in their DDR;
- ii.there are any changes to the Member's credit card specified in their DDR; and
- f.acknowledges and agrees that if a debit is returned by the Member's financial institution as 'unpaid':
- i.you must pay any failed payment, dishonour, processing or administrative fee of $1 in addition to the amount charged by ClubFit which at this time is $4 ($5 in total), to the extent permitted by law; and
- ii.Adapt Fitness may reattempt the failed payment, and may suspend your access to the Gym until all overdue amounts are paid. If 3 consecutive direct debit payments fail, Adapt Fitness may suspend or terminate your membership and recover any outstanding amount from you.
Upfront Payment
11.
If the Member's Membership Plan is 'Upfront', the Member must pay for all goods and services upfront at the time of booking using the payment method specified in the Membership Details (Upfront Membership Plan).
Fee Increases
12.
We reserve the right to increase the Fees at any time after the period of your initial Membership Plan has ended, or at any time if your Membership Plan is 'Month to Month', by giving you a 31-day notice of such increase.
Invoices
13.
If Adapt Fitness issues an invoice to the Member, payment must be made by the time(s) specified in such invoice.
GST
14.
Unless otherwise indicated, amounts stated in the Membership Details include GST.
ClubFit / Payment Provider
15.
Adapt Fitness uses ClubFit to collect Fee payments. The processing of payments by ClubFit will be, in addition to this Agreement, subject to your DDR Service Agreement in Appendix C and the privacy policy of ClubFit. We are not responsible for any act, omission, delay, outage, processing error or security issue caused by ClubFit or another third party payment provider, except to the extent required by law or to the extent caused or contributed to by us. We reserve the right to correct, or to instruct ClubFit to correct, any errors or mistakes in collecting your payment.
Debt Recovery
16.
If you do not pay an amount due under this Agreement on or before the date that it is due:
- a.Adapt Fitness may recover unpaid amounts owing under this Agreement, including by referring the matter to a debt collection agency as a last resort; and
- b.you must reimburse Adapt Fitness for reasonable costs actually incurred in recovering unpaid amounts, to the extent permitted by law.
Suspension of Membership
- c.You may request to suspend a Direct Debit Membership Plan for a reasonable cause, including travel, illness, injury, pregnancy, hardship or other circumstances approved by Adapt Fitness, for up to a maximum of 3 months.
- d.While your Direct Debit Membership Plan is suspended: your direct debit payments pause; your access fob is disabled; and, if you are on a fixed term Direct Debit Membership Plan, your Minimum Term is extended by the length of the suspension.
- e.Your membership and payments automatically resume at the end of the approved suspension period. Suspension does not count towards any cancellation notice period, and Adapt Fitness may decline a suspension request where it considers the request is being used to avoid arrears.
- f.If you are on an Upfront Membership Plan, an approved suspension extends your membership expiry date by the length of the suspension, up to a maximum of 3 months per membership term (unless Adapt Fitness agrees otherwise). Your access fob is disabled during the suspension and no refund is payable simply because your membership is suspended.
Transfer of Membership
17.
Memberships are personal to the Member and cannot be transferred, assigned or given to another person unless Adapt Fitness agrees in writing.
Third Party Goods and Services
- a.Some services at the Gym are provided by third parties, including our payment provider (ClubFit), booking or class platforms, and independent contractors such as personal trainers (Outside Providers). Where you use a service provided by an Outside Provider, that service may be subject to the Outside Provider's own terms and conditions (Third Party Terms).
- b.Where reasonably practicable, Adapt Fitness will notify you of any applicable Third Party Terms or where you can access them. By choosing to use a service provided by an Outside Provider, you agree to be bound by the relevant Third Party Terms.
- c.To the extent permitted by law, Adapt Fitness is not responsible for services provided by an Outside Provider, or for any Third Party Terms. This does not exclude any liability Adapt Fitness has for its own acts or omissions, or any liability that cannot be excluded by law. Any claim you have about a service provided by an Outside Provider should be directed to that Outside Provider in the first instance.
Liability and Indemnities
No Reliance
18.
The Member acknowledges that in deciding to pay for the Activities and in entering into this Agreement the Member has not relied on the skill or judgment of Adapt Fitness and that the Member has satisfied itself as to the condition and suitability of the Gym and/or Activities and their fitness for the Member's purpose.
Liability
- a.To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid and payable by the Member to Adapt Fitness in the 3 months preceding the date of the event giving rise to the relevant liability.
- b.The above limitation does not apply to the Member's liability in respect of loss or damage sustained by Adapt Fitness arising from the Member's breach of the obligations clauses relating to capacity, pre-activity, instructions and safety, or gym use.
Consequential Loss
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Adapt Fitness, except:
- c.in relation to a party's liability for fraud, personal injury, death or loss or damage to tangible property; or
- d.to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
Risk
- e.Participating in the Activities involves the potential for injury, illness, property damage and death. The Member participates in the Activities at their own risk with knowledge of the dangers involved, including risks arising from exercise, equipment use or misuse, equipment failure, training without a spotter, slips, trips, falls, overexertion, medical events and unstaffed access.
- f.The Member acknowledges that there will be times where the Member will be unsupervised by any Adapt Fitness Personnel and agrees to accept any risks of loss, injury, damage or death arising out of the Member's unsupervised use of the Gym, unless there is reckless disregard or gross negligence on Adapt Fitness' behalf.
- g.The Member acknowledges that while Adapt Fitness uses its best endeavours to ensure that the Gym and any facilities and/or equipment are free of faults and safety issues, there may be instances of equipment failure, and/or equipment and other objects may be left in incorrect positions by other Gym users. The Member agrees that Adapt Fitness will not be liable for any loss or damage arising out of such circumstances unless there is reckless disregard or gross negligence on Adapt Fitness' behalf.
- h.The Member will bear all risk of loss or destruction of, or damage to, any equipment and/or other property and/or people arising out or contributed to by their participation in the Activities.
Indemnity
19.
The Member indemnifies Adapt Fitness from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
- a.any breach of this Agreement by the Member;
- b.any negligent, fraudulent or criminal act or omission of the Member or its Personnel; or
- c.an event, where circumstances giving rise to a claim, were caused or contributed to by the Member.
This indemnity is reduced proportionately to the extent that the relevant loss, claim, expense, damage or liability was caused or contributed to by Adapt Fitness, and does not apply to liability that cannot lawfully be excluded or transferred.
Warranties
- a.To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
- b.Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Member may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
Privacy
- c.You agree to be bound by our Privacy Policy, which is available at adaptfitness.com.au/privacy.
- d.Adapt Fitness collects and handles your personal information, including health information collected via your Pre-Activity Questionnaire (PAQ), in accordance with our Privacy Policy.
- e.CCTV and security recordings operate in and around the Gym. Footage is used for safety, security, access control, incident investigation, insurance, legal or regulatory purposes, and other reasonable operational purposes, and may be disclosed to law enforcement, our insurer, a regulator or our advisers where required or permitted by law. CCTV footage is not used as consent for marketing or promotional purposes.
- f.We will not use identifiable photographs or videos of you for marketing, promotional, social media or advertising purposes unless you have provided consent. You may withdraw your consent for future use at any time by giving us written notice. If you are under 18, your parent or guardian must provide this consent on your behalf.
- g.Your Membership Details, your acceptance of this Agreement, your PAQ responses and any other accepted or signed disclaimers are retained by Adapt Fitness for at least 7 years, consistent with our insurance requirements.
- h.You may contact us at any time to withdraw consent to promotional use of your image, as set out above.
Cancellation
By Company
21.
Adapt Fitness may terminate this Agreement in whole or in part by written notice to the Member for a serious breach, a safety or security issue, a repeated breach, non-payment after reasonable notice, or any other breach that is not remedied within a reasonable time after Adapt Fitness has given the Member notice of the breach and, where the breach is capable of remedy, a reasonable opportunity to remedy it.
Notice — All Members
22.
You must provide at least 7 days' written notice to Adapt Fitness, unless your Membership Details or checkout details state a longer notice period (not to exceed 30 days), given by email to Adapt Fitness' nominated email address, in person at the Gym during staffed hours, or another written method notified by Adapt Fitness (Notice).
No-Lock-In Direct Debit Membership Plans
23.
If you are on a no-lock-in Direct Debit Membership Plan, no cancellation fee applies. You remain responsible for any Fees falling due during the Notice period, and your access continues until the cancellation date unless suspended earlier due to non-payment, a safety issue or misconduct.
Fixed Term Direct Debit Membership Plans
- a.If you are on a fixed term Direct Debit Membership Plan (3, 6 or 12 month term) and you cancel before the end of the Minimum Term, you must pay any Fees owing up to the cancellation date (including Fees falling due during the Notice period) and a discount recoupment amount.
- b.The discount recoupment amount reflects the difference between the discounted membership rate you received because you committed to the Minimum Term and the rate you would have paid for the membership period you actually completed, based on the membership options disclosed to you at sign-up.
- c.The discount recoupment amount must not exceed the amount that would otherwise have been payable for the remainder of the Minimum Term.
- d.Adapt Fitness may waive or reduce the discount recoupment amount for illness, injury, hardship, relocation, pregnancy or other reasonable circumstances.
- e.Nothing in this clause limits any right you have under the Australian Consumer Law.
- f.Once you have completed the Minimum Term and your membership has continued on a no-lock-in basis, you may cancel at any time on 7 days' written notice as set out above, and no discount recoupment amount or early cancellation fee applies.
Upfront Membership Plans
24.
If you are on an Upfront Membership Plan, no refund is available for a change of mind or for any unused portion of your membership term, except as required by the Australian Consumer Law. Your Upfront Membership Plan does not auto-renew unless expressly agreed. Adapt Fitness may, at its discretion, offer a suspension, extension, credit, transfer or partial refund in cases of genuine hardship, illness, injury, relocation or other exceptional circumstances.
Survival
25.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
Dispute Resolution
- a.A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
- b.A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
- c.Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
Notices
- d.A notice or other communication to a party under this Agreement must be:
- i.in writing and in English; and
- ii.delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
- e.Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
- i.24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
- ii.when replied to by the other party,
whichever is earlier.
General
Governing Law and Jurisdiction
26.
This Agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
Amendments
27.
This agreement may only be amended in accordance with a written agreement between the parties.
Waiver
28.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Severance
29.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
Joint and Several Liability
30.
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
Assignment
31.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
Counterparts
32.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
Costs
33.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
Entire Agreement
34.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
Interpretation
- a.(singular and plural) words in the singular includes the plural (and vice versa);
- b.(gender) words indicating a gender includes the corresponding words of any other gender;
- c.(defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- d.(person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- e.(party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- f.(this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
- g.(document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
- h.(headings) headings and words in bold type are for convenience only and do not affect interpretation;
- i.(includes) the word "includes" and similar words in any form is not a word of limitation;
- j.(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
- k.(currency) a reference to $, or "dollar", is to Australian currency, unless otherwise agreed in writing.
Definitions
35.
In addition to capitalised terms defined in the Agreement Details above, capitalised terms used in this agreement will have the following meanings:
| Term | Meaning |
|---|---|
| 24/7 Access | means access to the Gym outside of the Staffed Hours. |
| Activities | means the Member's use of the Gym, equipment, facilities, classes, services and any other activities offered by Adapt Fitness from time to time, including as described in the Membership Details. |
| Direct Debit Request, DDR | means the Direct Debit Request located in the Membership Details authorising ClubFit to debit your nominated account or credit card for Fees payable to Adapt Fitness in accordance with the DDR Service Agreement. |
| DDR Service Agreement | means the direct debit request / payment terms between you and ClubFit relating to the Fees payable under your Membership Details, provided separately to you through ClubFit or at sign-up, as referred to in Appendix C. |
| Commencement Date | has the meaning set out in the Membership Details. |
| Fees | has the meaning set out in the Membership Details. |
| Gym | means the venue specified in the Membership Details. |
| Laws | mean any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Activities are performed or received and includes any industry codes of conduct. |
| Member, you, your | has the meaning set out in the Membership Details and includes the parent or guardian of the Member if the Member is under 18 years of age. |
| Membership Details | has the meaning set out in clause 1 of these Terms and Conditions. |
| Membership Plan | has the meaning set out in the Membership Details and relates to the contract length and payment terms a Member has selected. |
| Personnel | means, in respect of a party, that party's officers, employees, contractors (including subcontractors) and agents. |
| Staffed Hours | means the hours during which the Gym is staffed by Adapt Fitness Personnel, as notified by Adapt Fitness from time to time. |
| Third Party Terms | has the meaning set out in the Third Party Goods and Services clause. |
Appendix A
Pre-Activity Questionnaire (PAQ)
The Member's Pre-Activity Questionnaire (PAQ) is completed as part of the Adapt Fitness / ClubFit sign-up and member onboarding process, and is not set out in this appendix.
Appendix B
Agreement and Waiver
Warning Under the Australian Consumer Law and Fair Trading Act 2012
Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you—
- are rendered with due care and skill; and
- 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.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the supplier is entitled to ask you to agree that these statutory guarantees do not apply to you. If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.
NOTE: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
Adapt Fitness 24/7 Waiver
This Waiver applies to your participation in the Activities at the Gym and forms part of your Agreement with Adapt Fitness, accepted by you in accordance with the Introduction and Acceptance clause of these Terms and Conditions.
You acknowledge that participating in the Activities and using the Gym, its equipment and facilities involves inherent risks, including accidents, physical or mental injury, illness, property damage and, in rare cases, permanent disability or death. These risks arise from matters including strength training, free weights, cardio and resistance equipment, equipment misuse or failure, slips, trips and falls, overexertion, medical events, training without a spotter, and unstaffed access to the Gym.
You acknowledge and agree that:
- a.Adapt Fitness 24/7 may be unstaffed or unsupervised at times, including outside Staffed Hours, and that immediate assistance may not be available; CCTV, alarms, emergency contact details or other safety measures do not guarantee that an incident will be detected or that help will arrive immediately;
- b.you are responsible for exercising safely and within your own physical capability, and for familiarising yourself with the location of emergency exits, the first aid kit and any duress alarm or AED at the Gym;
- c.in an emergency, you should call 000 first; and
- d.you participate in the Activities voluntarily, and this Waiver affects your legal rights, including your right to sue.
You warrant that you have accurately disclosed any injury, illness, disability, pregnancy, medication, medical condition or other circumstance that may affect your safe participation in the Activities, including via your Pre-Activity Questionnaire (PAQ). You agree that you are responsible for determining whether you are medically and physically fit to participate, that you will obtain medical advice or clearance where appropriate or reasonably requested by Adapt Fitness, and that you will immediately stop participating and seek medical attention if you experience pain, dizziness, faintness, illness or unusual discomfort.
Where the Member is under 18 years of age, the parent or guardian who accepts this Agreement consents to the Member participating in the Activities permitted for their age, confirms that the health and medical information provided for the Member is accurate, accepts this Waiver on the Member's behalf to the extent permitted by law, and remains responsible for ensuring the Member complies with the Agreement and this Waiver.
Subject to the Warning above, and only to the extent permitted by section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and any other applicable law, Adapt Fitness and its officers, employees and contractors (Releasees) exclude liability for death, physical or mental injury, disease or any other condition suffered by you because the recreational services were not supplied in accordance with an excludable statutory guarantee. This exclusion does not apply to gross negligence, reckless conduct, fraud or wilful misconduct on the part of a Releasee, or to any liability that cannot lawfully be excluded, restricted or modified. Nothing in this Waiver excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
You indemnify the Releasees against any third-party claim, liability, loss, damage or reasonable expense to the extent caused by your deliberate, reckless, fraudulent or negligent act or omission, or your material breach of the Agreement or this Waiver. This indemnity is reduced proportionately to the extent the relevant claim, liability, loss, damage or expense was caused or contributed to by a Releasee, and does not apply to liability arising from a Releasee's gross negligence, reckless conduct, wilful misconduct or fraud, or to liability that cannot lawfully be excluded or transferred.
If any part of this Waiver is found by a court to be void, unenforceable or in violation of any statute, that part only is severed, and the remainder of this Waiver continues in full force.
Acknowledgment
By accepting this Agreement (including by checkbox, clickwrap or electronic signature), you acknowledge that you have read and understood this Waiver, that it affects your legal rights, and that you accept it voluntarily and without any inducement.
Appendix C
DDR Service Agreement
The ClubFit Direct Debit Request / payment terms are provided separately through ClubFit or at sign-up, and apply where you pay by direct debit. A copy of these terms is set out below.
Direct Debit Request Service Agreement
1.
I hereby request and authorise Adapt Fitness 24/7 to debit my nominated bank account/credit card for the amount specified in the Direct Debit Request.
2.
I should check with my financial institution whether direct debiting is available for my account, as direct debiting is not available on all accounts by financial institutions.
3.
If my direct debit is for a bank account and falls on a day which is not a business day, then Adapt Fitness 24/7 will direct my financial institution to debit my account on the next business day.
4.
If I wish to change or stop this direct debit, I may do so by applying in writing, provided the terms of the Membership Agreement with Adapt Fitness 24/7 have been fulfilled.
5.
I am responsible to inform Adapt Fitness 24/7 of any changes to the details I have provided in the Direct Debit Request.
6.
It is my responsibility to ensure cleared funds are available in my nominated bank account/credit card to meet the direct debit payment. If a debit is unsuccessful, I acknowledge that I will be responsible for payment of the debt plus a $5 dishonour fee incurred by Adapt Fitness 24/7 and any other fees charged by my financial institution.
7.
I should check my account statement to verify that the amounts debited from my account are correct. All enquiries in relation to a dispute must be directed to Adapt Fitness 24/7 or my financial institution.
8.
I understand that Adapt Fitness 24/7 will keep any information in the Direct Debit Request confidential. Adapt Fitness 24/7 will make reasonable efforts to keep my information secure, and to ensure that anyone who has access to it does not make any unauthorised use, modification, reproduction or disclosure of that information. Adapt Fitness 24/7 will only disclose my information to the extent specifically required by law or for the purposes of this agreement.
9.
Adapt Fitness 24/7 may provide my details to a third party debt collection agency in order to pursue collection of outstanding funds.
10.
Adapt Fitness 24/7 may vary any details of this agreement or the Direct Debit Request at any time by giving me at least 14 days written notice.
11.
Adapt Fitness 24/7 will communicate any matter relating to the Direct Debit Request via SMS, email, phone or mail to the contact details I have provided.
12.
I agree to Novatti terms and conditions and PayJam terms and conditions found at www.payjam.io/terms-conditions.
Contact Us
For any membership or legal enquiries, please contact us:
Adapt Fitness 24/7 Pty Ltd
ABN 17 685 649 576
123 Macleod Street, Bairnsdale VIC 3875
Email: admin@adaptfitness.com.au
Website: adaptfitness.com.au