WA - MEMBERSHIP TERMS AND CONDITIONS

OPERATIVE CLAUSES

Warning: This is an important document which affects your legal rights and obligations. Before commencing your Membership with us you must read the following Terms and Conditions. By becoming a Member, you confirm you have read, fully understand and agree to abide by the following Terms and Conditions.

1. WELCOME

1.1 These Terms and Conditions, the Membership Application and the Rules govern your rights and responsibilities as a Member.

1.2 Each Member is responsible for complying with this Agreement and the Rules.

1.3 By submitting a Membership Application, you agree to be bound by this Agreement and the Rules.

1.4 You hereby authorise us to arrange, through our own financial institution, to debit your account with all Membership Fees and associated fees and other amounts due by you under this Agreement.

1.5 This Agreement may be amended by us from time to time. The most recent version will be accessible at www.plusfitness.com.au

1.6 You are responsible for advising us of any change of name, address, other contact details, payment details and method and change of circumstance through the Online Portal. Documentation verifying a name change is required. Your mailing address will be used to determine your eligibility for promotions and other offerings. You can opt out of receiving promotional material by selecting the opt out button within the Online Portal.

2. LEGAL STUFF

Definitions

2.1 In this Agreement, words in the ‘item’ column of the Reference Schedule have the same meaning given adjacent to them.

2.2 In this Agreement:

(1) Activation Fee means the fee you pay to activate or reactivate your Membership.

(2) Administration Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(3) Agreement means this these Terms and Conditions, the Schedule of Fees and the Membership Application as amended from time to time.

(4) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the Australian Capital Territory.

(5) Cancellation Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(6) Change of Membership Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(7) Club means the facilities owned or operated by Us or another franchisee of the Franchisor from time to time.

(8) Direct Debit Decline Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(9) Fixed Term means a Membership with a predetermined fixed duration.

(10) Franchisee means the entity nominated in your Membership Application that owns or operates the Home Club.

(11) Franchisor means Plus Fitness Pty Ltd CAN 126 140 181.

(12) GST means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights including but not limited to a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.

(13) Home Club means the Club nominated as your Home Club as per your Membership Application and the Online Portal.

(14) Including means including without limitation.

(15) Join Date means the date you submit to us a Membership Application.

(16) Junior Membership means the Membership applicable to persons aged between 14 and 15 (inclusive).

(17) Member means the person entering into this Agreement with us and referred to throughout this Agreement as ‘I’, ‘my’, ‘you’ or ‘your’.

(18) Member ID Application means the smart device app provided by us and its subsequent versions from time to time.

(19) Membership means your membership with us as governed by this Agreement.

(20) Membership Application means the paper or electronic form to provide us with details to activate the Membership.

(21) Membership Fees means the fees due to be paid by you to us under your Membership Plan.

(22) Membership Plan means the type of Membership you have elected in your Membership Application.

(23) No Show Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(24) Nominated Direct Debit Provider means a provider of direct debit or direct entry banking services that We may nominate from time to time to facilitate the collection of Membership Fees.

(25) Online Portal means the Member’s portal at www.plusfitness.com.au and/or the Member ID App.

(26) Parent/Guardian Approval Form means the approval supplied by a parent and/or guardian of the holder of a Junior Membership.

(27) Periodic Membership means a Membership that is not a Fixed Membership.

(28) Related Entities has the meaning it has in the Corporations Act 2001 (Cth) and includes the Franchisor and the operator of any Club.

(29) Rules means any Rules, in addition to this Agreement, that we reasonably deem to be necessary or convenient for the administration of the Clubs and that are notified to you and your guests, including any rules posted on the Website (if any) or in a Club.

(30) Schedule of Fees means the schedule of fees for the relevant Club and Membership as provided for on the Website and as amended by us from time to time.

(31) Staff means employees, consultants, contractors or agents engaged by us who work at the Clubs.

(32) Start Date means the date nominated in the Membership Application.

(33) Surcharge Fee Rate means the rate specified in the Schedule of Fees from time to time.

(34) Suspension Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(35) Termination Fee means the fee of that name provided for in the Schedule of Fees from time to time and may include fees payable to 3rd party debt collection agencies.

(36) Terms and Conditions means the terms and conditions contained in this document, as varied from time to time.

(37) Transfer Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(38) Unauthorised Entry Fee means the fee of that name provided for in the Schedule of Fees from time to time.

(39) Us means the Franchisee and its Related Entities and referred to throughout this Agreement as ‘us’, ‘our’ or ‘we’.

(40) Website means www.plusfitness.com.au

(41) Youth Membership means the Membership applicable to persons aged between 8 and 13 (inclusive).

3. ARE THERE ANY RESTRICTIONS ON JOINING?

Fit for Exercise

3.1 You must not undertake exercise within a Club:

(1) unless you reasonably believe based on reasonable grounds known to you that you are fit and able to undertake active exercise;

(2) that is contrary to advice given to you from a doctor, Allied Health, any medical professional or from advisory papers supplied with any medicines you are taking; or

(3) whilst you are carrying an injury or have reasonable grounds to suspect you are carrying an injury.

3.2 If you are suffering from any injury or illness and wish to undertake limited exercise within a Club, you must notify Staff before commencing any exercise of that illness or injury and sign a disclaimer in favour of us in respect of any damage of injury you might suffer from exacerbating, complicating or suffering consequential injury flowing from that exercise or flowing from that illness or injury.

3.3 You agree to use our Clubs, products and services with due care and reasonable skill and on the condition that if you have any difficulty using any equipment, that you will cease using that equipment unless and until you have notified Staff and been given guidance on the use of that equipment and you have been given approval by Staff to continue using that equipment.

3.4 Should you injure yourself, or get hurt while utilising our Clubs, facilities, products and/or services, you will immediately cease exercise and notify Staff. It is a condition of entry into and use of a Club that you must take full responsibility for your actions, to exercise within your strength and conditioning and that you indemnify us against any costs, losses or damages we may suffer in relation to your actions or injury whilst attending a Club.

Minimum Age

3.5 A person must be 8 years or older to become a Member. Any Member under the age of 18 must have a parent or guardian provide approval for their Membership Application. Approval must be given via the Parent/Guardian Approval Form that will be sent via SMS or email following receipt of your Membership Application or by signing a hard copy of the Membership Application. All members under the age of 18 must abide by the Junior or Youth Membership conditions of entry (separately provided and which are incorporated herein in full for each such Member under the age of 18).

3.6 Junior and Youth Memberships are only available to Members between the age of 8 and 17 (inclusive). Once a Member turns 18 the Youth Membership will terminate and the Member will be required to apply for an adult membership.

4. WHEN DOES MY MEMBERSHIP COMMENCE?

Fixed Term and Periodic Membership

4.1 Your Membership commences on the Start Date.

Before commencing exercise

4.2 Before your first attendance at a Club to use its facilities and at any other time reasonably requested by Staff, you will be required to complete a pre-exercise form. In completing that form, you represent that:

(1) the information you provide us is:

i. accurate and complete in all material respects;

ii. based on actual grounds known to you; and

(2) you have not received advice that would indicate to a reasonable person that there are grounds to suspect any of the information you have given to us is not accurate or complete in all material respects.

5. CAN I CHANGE MY MIND?

7 Day Cooling Off Period

5.1 You may cancel your Membership any time before 5.00pm on the 7th Day following the Join Date.

5.2 Cancellation must be completed through the Online Portal.

5.3 All new Members must provide a direct debit authority at the date of joining and such direct debit authority will be actioned immediately upon the seven-day period expiring unless you advise us through the Online Portal within that time period that you want to cancel your Membership.

5.4 If you exercise your cooling-off rights under clause 5.1, we will refund any fees already paid by you excluding the Activation Fee and Administration Fee.

6. WHEN DO I PAY?

Fixed Term

6.1 If your Membership Plan is for a Fixed Term then you pay your Membership Fees either:

(1) on the Join Date in full; or

(2) by instalments paid in advance by direct debit for the duration of the Fixed Term commencing on the date specified in the Membership Application.

Periodic

6.2 If your Membership Plan is a Periodic Membership, you agree to pay your Membership Fees fortnightly in advance via direct debit commencing on the Start Date.

General

6.3 Unless prohibited by law in the State or Territory where the Home Club is located, at the expiry of the Fixed Term direct debit Membership Plan, unless you apply for another type of Membership Plan, you hereby request that your Membership Plan will be automatically transferred to a Periodic Membership and you will be liable to pay your Membership Fees for the Periodic Membership fortnightly in advance by direct debit. You acknowledge those Membership Fees and associated terms and conditions may be varied in accordance with this Agreement.

6.4 At the end of the Periodic Membership term, your Membership Plan will be automatically renewed for a further Periodic Membership and you will be liable to pay your Membership Fees fortnightly in advance via direct debit commencing on the date your Periodic Membership term ends.

6.5 If your Membership Plan requires you to meet certain eligibility criteria (e.g. a Student Membership) and you become ineligible to hold that Membership Plan, you hereby request that your Membership Plan be automatically renewed for a similar Membership Plan which you are eligible for, using the existing payment methods provided to us. We will provide you with 14 days’ notice prior to this change.

6.6 If you do not want your Membership Plan to be automatically transferred or renewed then you must provide us with notification of cancellation in accordance with these Terms and Conditions via the Online Portal.

Direct Debit

6.7 You must complete a Direct Debit Authority (DDA) when submitting your Membership Application for your Membership. By ticking and submitting the DDA you authorise us to debit all Membership Fees from the nominated account or credit card via instalments in advance utilising the services of the Nominated Direct Debit Service Provider.

6.8 You agree that it is your responsibility to have sufficient credit in the nominated account/s so that payment is made to us on time and in full at the time the payment is processed.

6.9 We accept no liability to you for drawing funds under your DDA to meet liabilities under this Membership Agreement, including without limit, the Direct Debit Decline Fee and any additional charges imposed by your financial institution or the Nominated Direct Debit Service Provider due to insufficient funds or credit in your nominated account/s.

6.10 If the payment date falls on a day that is not a Business Day then the direct debit may occur on the first Business Day immediately following the day the payment was to be made.

6.11 Failure to provide a DDA and set up a direct debit may result in the immediate termination of this Agreement by us.

Increases in Membership Fees

6.12 Fees payable by you in accordance with this Agreement may increase in cost as of 1 July each year or another date to be notified in writing pursuant to clause 6.14. This will only apply to Memberships active prior to the date notified.

6.13 If you choose to pay your Membership Fees with a credit card, you may be charged surcharge fees at the Surcharge Fee Rate.

6.14 We will provide you with at least 28 days written notice of the changes before any proposed change takes effect. We will email or post you any such notice to the last known address in our records.

6.15 If you do not wish to accept the proposed changes, you may cancel your Membership without additional penalty provided that you notify us in writing within 14 days of receiving our notice.

6.16 If you do not cancel your Membership then your Membership will be varied and continue in accordance with any changes notified to you from the expiry of the period of the notice to you or the effective date notified, whichever is the later.

GST

6.17 All Membership Fees are inclusive of any applicable GST. The Member is responsible for any additional costs, charges, taxes, claims or other liabilities (including any applicable fringe benefits tax) arising from their use of the Clubs or any other goods or services offered or provided in connection with their Membership.

Schedule of Fees

6.18 The fees payable in accordance with this Agreement and listed in the Schedule of Fees (not including Membership Fees) will change from time to time, as deemed necessary by us.

7. HOW DO I CANCEL MY MEMBERSHIP?

7.1 If your Membership Plan is Fixed Term (paid in full) or a Periodic Membership, then you may cancel this Agreement at any time however:

(1) you must give a minimum of 28 days’ notice (in advance) of your intention to cancel via the Online Portal;

(2) you are not entitled to a refund of any Membership Fees paid; and

(3) no cancellation fees apply.

7.2 If your Membership Plan is Fixed Term (paid by instalments), then you may cancel this Agreement at any time before the expiry of the Fixed Term, however:

(1) you must give a minimum of 28 days’ notice (in advance) of your intention to cancel via the Online Portal;

(2) all payments due as at the date of cancellation must be paid in full; and

(3) you must pay the then applicable Cancellation Fee.

Ongoing

7.3 Your Membership is otherwise ongoing and expires at the earliest of:

(1) the termination of your Membership by us in accordance with this Agreement; or

(2) the date 28 days after you provide notice in accordance with this clause 7.

8. CAN I CHANGE MY MEMBERSHIP?

8.1 You may change your Membership Plan in accordance with this Agreement by notice to us through the Online Portal. Any change to your Membership may incur a Change of Membership Fee (as well as the applicable increase or decrease in Membership Fees).

8.2 You also acknowledge that if you use a club that is not your Home Club on an ongoing and frequent basis your membership agreement may be transferred to the club you use most frequently.

9. CAN I PAUSE MY MEMBERSHIP?

9.1 You can suspend your Membership at any time on the following terms:

(1) providing no notice of cancellation has been provided;

(2) for a minimum period of one (1) week and for a maximum period of twelve (12) weeks;

(3) any suspension will incur the Suspension Fee which must be paid upfront and prior to commencement of suspension; and

(4) all Membership Fees must be paid up to date at the time of your notice of suspension.

9.2 During any suspension made in accordance with this Agreement, the Fixed Term is extended for the length of the suspension. You are not able to cancel your Membership during a suspension.

10. WHAT HAPPENS IF I GET SICK?

10.1 If you are unable to use our Clubs by reason of temporary physical incapacity, for a period of more than seven (7) consecutive days, you may suspend your Membership for up to three months within any 12-month period by notice to us through the Online Portal accompanied by a verifiable medical certificate. You will not be charged Suspension Fees under clause 9.

10.2 You must provide a medical certificate if you wish to reactivate your Membership prior to the expiration of a medical suspension.

10.3 If you wish to suspend your Membership for longer than three months within any 12-month period then clause 9 applies.

10.4 If you are unable to use our Clubs by reason of permanent physical incapacity, you may cancel your Membership by request via the Online Portal and uploading a verifiable medical certificate. If:

(1) your Membership Plan is Fixed Term (paid in full) you will be entitled to a refund of any unused prepaid amount less an Administration Fee;

(2) your Membership Plan is Fixed Term (payable by instalments) we will put a stop to the direct debit payments as soon as possible after notice is received through the Online Portal, but you will be required to pay the Membership Fees to the date of notification; or

(3) the Membership Plan is a Periodic Membership, we will put a stop to the direct debit payments as soon as possible after notice is received through the Online Portal but allowing us to deduct your Membership Fees to the date of notification.

10.5 Your Membership will terminate automatically on your death. We will terminate your account on receipt of notification of your death, providing we receive reasonable evidence of the same. You will not be charged fees in the event of your death.

11. WHEN CAN YOU CANCEL MY MEMBERSHIP?

11.1 Your Membership is conditional on your compliance with the terms of this Agreement (including the prompt payment of the Membership Fees) and your compliance with the Rules.

Failure to pay Membership Fees

11.2 If you do not fully pay your Membership Fees on the due date, we may:

(1) immediately suspend your Club access until your payments are up to date; and

(2) continue to debit your nominated account without notice along with any dishonour fees that apply, until we have received the total amount you owe us;

or

(3) terminate your Membership, along with charging you any Termination Fee that may apply.

Bad Behaviour

11.3 We reserve the right to suspend or cancel your Membership immediately:

(1) if, in our opinion, you do not behave in a correct and orderly manner, respecting the entitlement of all patrons to use the Clubs in peace and without disturbance or disruption by you;

(2) if you do not comply with the reasonable directions of our Staff;

(3) if you misuse our products, services, or facilities or use them for purpose other than the use for which they were designed or intended;

(4) if you are within the premises of a Club or its surrounds under the influence of drugs or alcohol;

(5) if you are abusive or aggressive to Staff or other patrons or act in a manner that is lewd or provocative;

(6) if you do not adhere to the terms of this Agreement; or

(7) if any declaration you make concerning your age, health or proclivity to injury is false, misleading or otherwise deceptive.

11.4 For the purposes of clause 11.3, a Staff’s statement that you have acted in a way mentioned in clause 11.3, is evidence of you doing so.

General

11.5 If we suspend or cancel your Membership, you must pay all your Membership Fees up to the date of the suspension or cancellation and you must pay the applicable Suspension Fee or Cancellation Fee.

11.6 You agree to pay us any costs we incur (including our legal costs on a solicitor and own client basis) incurred by us in enforcing any rights we have under this Agreement.

12. HOW DO I ACCESS THE CLUB FACILITIES?

General

12.1 Your Membership entitles you to access to and use of the Clubs and their facilities in accordance with this Agreement and the entitlements of your Membership Plan during their advertised opening times which may change from time to time at our discretion. To gain entry into one of the Clubs:

(1) you must have a valid access pass or Member ID Application and present it for admission;

(2) your Membership must be current and not suspended or cancelled; and

(3) you must not have any outstanding Membership Fees.

12.2 Entry to a Club is subject to availability and we reserve the right to refuse entry to any Member if it would result in the Club exceeding any patron limits set for the venue by any government or regulatory authority.

12.3 We (and our Staff) have the discretion to refuse entry to any Member at any time if, in our reasonable opinion, the Member has not or will not comply with this Agreement or the Rules, or the refusal is necessary or convenient for the orderly operation of the Club or the safety or comfort of other Members, guests and Staff.

12.4 If your access pass is lost, stolen or otherwise missing, then you must report that to your Home Club as soon as practical after learning of the fact. We will replace a lost, stolen or otherwise missing access pass for the Activation Fee.

Personal Training

12.5 Personal trainers operate separately to us under a licence agreement between us and them to utilise the Clubs to undertake personal training services. Members must not utilise personal training at a Club provided by any person other than a personal trainer licensed by us.

12.6 Personal training sessions are an opt-in service for an additional fee, and are subject to additional terms and conditions and costs as agreed between you and the personal trainer.

12.7 We take no responsibility at all for any personal trainer’s:

(1) actions or omissions; or

(2) services,

or any injury or loss you may suffer as a result of the same.

Group training sessions

12.8 You may incur a No Show Fee for any pre-booked classes to which you do not attend as booked by you or cancel with at least 24 hours notice.

Access during certain times

12.9 Individual Clubs may vary their opening hours, but you acknowledge that Clubs can be closed due to public holidays, general or urgent maintenance or upgrades.

12.10 So far as is practical, these dates and times will be displayed within the Clubs or on our Website for your attention.

12.11 We reserve the rights to vary or change classes and services, including for reasons of seasonal conditions, participation rates, Staff availability and maintenance requirements of the building. There are no refunds or credits issued for such days.

Lockers and Possessions

12.12 You agree that the premises of each Club is a physical training facility, within which areas dedicated to physical training (including any pool, sauna, spa or like area) are not areas into which it is appropriate to take bags or anything of value, and that anything of value you bring onto the premises of any Club is at risk and that risk is yours alone. You are to ensure that all your personal items are stored in a safe place.

12.13 We strongly recommend that you do not take bags or anything of value onto the premises of any Club. We have no responsibility to provide you with a secure place to leave any such items and do not accept responsibility for items which are lost, misplaced or stolen from within or outside of the lockers or any other area of a Club.

12.14 Lockers are provided for the convenience of Members and guests within some of the Clubs and whilst some lockers have locks and keys, you agree that those lockers are not secure and that we do not represent them as being secure.

12.15 All bags brought onto Club premises are at your own risk and must be kept in a locker (unless you are at a service area outside the dedicated exercise areas).

12.16 Under no circumstance can bags be taken onto areas dedicated to exercise.

12.17 Lockers are only supplied for you to store your personal items whilst using the facilities of the Club. This is done at your own risk absolutely. These lockers under no circumstances are to be used as storage outside of the hours that you are using the facilities of the Club.

12.18 You must not bring onto any Club premises any hazardous items including flammable goods, gas cylinders, acids and poisons, lithium batteries, bleaches, paints and sharp objects (metal cutlery, letter openers, razor blades) or anything that can be used as a weapon.

Access by Non-Members when Club is unstaffed

12.19 No Member is permitted to bring or allow a non-member into a Club without Staff permission or during any period when there are no Staff present or hours when the Club is not formally open. If you breach this clause then:

(1) you accept responsibility and liability for any injury, loss or damage attributed to the non-member;

(2) the act of bringing a non-member into a Club constitutes an automatic acceptance by you of an Unauthorised Entry Fee for the non-member. The Unauthorised Entry Fee, in addition to the relevant transaction fees, will be charged to you by a deduction from your nominated bank account as part of the next instalment; and

(3) we may decide to cancel your Membership.

13. CHANGES TO THIS AGREEMENT OR CLUB RULES

13.1 We reserve the right at all times to vary this Agreement and the Rules, in any way including by:

(1) opening new gyms or other facilities;

(2) closing or ceasing to operate Clubs or other facilities;

(3) changing the way Clubs or other facilities are operated, including contracting any third party to provide such facilities or any goods or services;

(4) varying the hours of operation of any Club or other facility;

(5) varying the offering of any Club including changing classes or fitness activities offered by us;

(6) varying the layout, location or other aspects of the Club including the types of facilities that are available and the times during which they are available; and

(7) imposing restrictions on the use of Clubs, facilities, goods or services by a Member or group of Members as may reasonably be deemed by us to be necessary or convenient for the orderly administration of the Club.

13.2 We will use reasonable endeavours to advise you of any material changes including by publishing the changes on the Website and/or through the Online Portal.

13.3 If we close any or all Club facilities or gyms, or amend this Agreement or the Rules in a way that deprives you substantially of the intended use of your Membership you will have the option of cancelling your Membership without penalty and you will receive a pro-rata refund of fees paid in advance.

13.4 You are not entitled to cancel your Membership or receive a refund for any closures for a period of up to and including four (4) weeks provided that we provide you with access to a reasonable alternate Club within 10kms of your Home Club.

14. LIABILITY

14.1 Subject to clause 17 and to the extent permitted by law, we and our Related Entities exclude any liability to you or any other person in tort, statute, or in any other way for any injury, damage or loss of any kind whatsoever (including, without limitation, any liability for direct, indirect, special or consequential loss or damage) sustained by you and/or any other person, or for any costs, charges or expenses incurred by you, arising from or in connection with this Agreement and/or the services/products provided by us and any act or omission by us.

14.2 You agree that you will be liable for any injury, loss, or damage suffered by any person resulting from your use of our Clubs, facilities, products, services, or premises, and you agree to indemnify us and our Related Entities against any costs, losses, damages or claims brought against us by any person in relation to such injury, loss, or damage.

15. CREDIT AND DEBIT REPORT AGENCIES

15.1 If paying by direct debit, you authorise us or the Nominated Direct Debit Service Provider to notify any debt collection or credit reporting agency of your default upon default by you regarding any obligation under this Agreement and any failure to remedy such default after notification.

16. ASSIGNMENT OF MEMBERSHIP

16.1 We may assign or novate your Membership to a third party without your consent.

16.2 If we assign your Membership, we will provide you with 28 days written notice.

16.3 An assignment of your Membership does not void the terms of your Membership.

17. CONSUMER GUARANTEES

17.1 The Australian Consumer Law gives you certain guarantees, including that our services will be rendered with due care and skill, and that the services will be reasonably fit for purpose.

17.2 If we breach those guarantees and you suffer reasonably foreseeable loss or damage, to the extent allowed by the Australian Consumer Law, we and our Related Entities limit our liability to any one or more of the following (in our absolute discretion):

(1) the replacement of any products supplied;

(2) the repair of any products supplied;

(3) a refund of the Membership Fees paid; or

(4) payment of the cost of you obtaining equivalent services elsewhere.

17.3 The consumer guarantees may not be applicable in circumstances:

(1) where you simply change your mind after the 7 day cooling off period;

(2) if you cause the problem yourself by misusing our products or services; or

(3) if you request a service to be done in a certain way against our advice or are unclear about what you want,

and no refunds or compensation will be given in these circumstances.

17.4 We acknowledge that certain consumer protection legislation implies conditions or warranties into contracts for the supply of goods or services to consumers that cannot be excluded. Nothing in this Agreement is intended to exclude or restrict the application of such laws.

17.5 You agree that implied terms under consumer protection laws will not apply to this Agreement where the Membership has been obtained for business purposes, provided that the relevant provisions may by law be excluded.

18. YOUR ACKNOWLEDGEMENTS AND ASSUMPTION OF RISK

18.1 You understand and acknowledge that:

(1) during such times that you frequent a Club or participate in an activity, be it internal or external, that you are doing so at your own risk;

(2) the risk of injury from using equipment in a Club or participating in activities is significant, and may include permanent paralysis or death and you knowingly and freely assume all such risks;

(3) we purchase or lease the fitness and exercise equipment from third parties and therefore do not manufacture any of this equipment, and we are providing recreation services and may not be held liable for defective products or equipment;

(4) you will not hold us or our Related Entities liable for any personal injury, damage to or loss of belongings which may arise from ours, or our Staff, members, clients, contractors or associates, negligence;

(5) whilst at a Club you may at times be unsupervised and you assume all risks associated with using any fitness and exercise equipment and exercising alone without the aid and presence of any Staff;

(6) subject to this Agreement, you are not otherwise entitled to bring any guests to a Club without our prior written consent, and if you do so, we may, at our sole discretion, suspend or cancel your Membership and the remainder owing on the Membership will be a debt due and payable to us;

(7) we have the right to cancel or suspend your Membership and exclude you from the any Club (in each case, temporarily or permanently at our sole and absolute discretion) if you do not behave in an orderly manner, are under the influence of alcohol or drugs, are abusive to Staff and/or other members, use equipment improperly, dangerously or in a way that may lead to personal injury (whether to you or others) or you cause property damage of any kind, or do not adhere to any of the terms of this Agreement; and

(8) by becoming a Member, you understand that this Agreement is legally binding whether your use is limited to one visit (casual) or you are on a Membership Plan.

19. RELEASE AND INDEMNITY

19.1 You hereby release and indemnify us and our Related Entities, our respective officers, affiliates, agents, Staff, employees, contractors, and other participants, with respect to any and all injury, disability, death or loss or damage to person or property, whether arising from our negligence or otherwise, that may arise out of or in connection with your use any of the equipment or the facilities provided by us, your participation in any activity, or any incident that occurs while using the Club or participating in any activity.

19.2 To the extent permitted by law, we and our Related Entities hereby exclude any liability to you for any injury, loss or damage to you or your property sustained by you or any other person for any costs, charges and expenses incurred by you arising from or in connection with this Agreement and/or the services provided by us and including any act or omission by us.

19.3 You expressly agree that this release is intended to be as broad and inclusive as permitted by law. If any part of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. You acknowledge that the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

20. PRIVACY

20.1 You agree that the information which we collect and retain about you can be used in accordance with our Privacy Policy and that those terms are incorporated herein by reference.

20.2 Our Privacy Policy is available at: www.plusfitness.com.au (Privacy Policy).

20.3 You further acknowledge that each Club utilises CCTV for security and monitoring purposes.

21. GENERAL PROVISIONS

Governing Law

21.1 This Agreement is governed by the law in force in New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales.

Entire Agreement

21.2 But for any additional agreement for private classes or personal training you may have entered into, this Agreement constitutes the entire agreement between you and us regarding your Membership, and its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

  1. Direct Debit Request Service Agreement

a) You acknowledge and agree that direct debit payments are managed and debited on behalf of us by a third-party billing agent, PaySmart Pty Ltd ACN 117 597 010 AR No. 409047 (PaySmart).

b) You acknowledge and agree that the Fees are reviewed periodically and may increase. This is regardless of the Fees payable when you entered into this Agreement or the Term (unless you have pre-paid in advance). You will be notified a minimum of 30 days prior to any such Fee increase by way of signage displayed within the Club.

c) It is your responsibility to ensure cleared funds are available in your nominated bank account or credit card to meet the direct debit payment. If a debit is returned unpaid by your financial institution, you will be responsible for payment of the debit plus an additional $15.90 for return fees and administrative costs incurred by PaySmart. If PaySmart has not received instruction to the contrary from you, we will debit both the next due payment and any overdue amounts on your next scheduled debit date.

d) You acknowledge and agree that:

  • PaySmart is entitled to store your personal information (whether received by you, the Club or otherwise on its systems) and use it for the purposes of administering this Agreement, providing its products and services, or offering alternative products and services;
  • you have rights of access to, and correction of, your personal information under the Privacy Act 1988; and
  • PaySmart (or the Club) may contact you for any purpose related to the provision of its products and services.

e) You authorise PaySmart to notify any debt collection or credit reporting agency upon default by you in meeting your payment obligations under this Agreement.

f) You agree to immediately pay the full outstanding balance of the remainder of the payments due, including any current arrears, should a default occur prior to this Agreement and your direct debits terminating.

g) You may be liable for any costs associated with the recovery of your overdue account, this may include, but is not limited to the following; legal fees, interest and mercantile agency collection cost.

h) When a debit day falls on a weekend and/or a national public holiday all debits for that weekend or national public holiday will be processed on the immediately preceding business day. If unsure, you should contact PaySmart.

i) This authority shall stand pursuant to the terms and conditions of this Agreement with the Club. The administration only of this authority is conducted by PaySmart, acting as a billing agent for us. The services provided by PaySmart are administrative only and do not extend to the provision of any services or benefits provided by us.

J) Direct debit may not be available on all bank accounts. You are advised to check your account details against a recent statement from your financial institution. If uncertain you should check with your financial institution before completing the Direct Debit Authority.

k) All enquiries in relation to refunds must be directed to the Club.

l) PaySmart will communicate with you from time to time. To ensure communication reaches you, it is important PaySmart is supplied with a valid email address and mobile phone number. Failure to supply a valid email address and a mobile phone number will prevent PaySmart from contacting you regarding important information concerning your account.

m) In signing this Agreement, you acknowledge that you have read and accept the conditions outlined in PaySmart’s Disclosure Statement (PDS) in its entirety. PaySmart will email the PDS to you, and, if this is not received, you acknowledge that you have accessed, read and understood the PDS on the PaySmart website: www.paysmart.com.au.

Direct Debit Request Service Agreement (VivaPay)

This Direct Debit Service Agreement is entered between You and Viva Pay Pty Ltd (ABN: 50 652 276 876) (“Us” or “Viva Pay”). The agreement is designed to explain your obligations when undertaking a direct debit arrangement with Viva Pay. It also details Viva Pay’s obligations are to You as your Direct Debit Provider. This Agreement forms part of the terms and conditions of your Direct Debit Request (DDR) and should be read in conjunction with your DDR form and any other associated agreement (e.g. Membership Agreements).

  1. Definitions
    1. Account means the account held at your financial institution from which Viva Pay is authorised to arrange for funds to be debited.
    2. Agreement refers to this Direct Debit Services Agreement, including all its attachments and amendments.
    3. Banking Day means a day other than a Saturday or a Sunday or a public holiday listed throughout Australia.
    4. Debit Day means the day that payment by You is due.
    5. Debit Payment means a particular transaction where a debit is made.
    6. Direct Debit Request means the Direct Debit Request completed by you and attached to your Membership Agreement.
    7. Dishonor Fee means a fee payable by You to Us where a Debit Payment is unsuccessful up to the Dishonor Fee Amount.
    8. Dishonor Fee Amount means an amount that may be determined by Us and notified to you from time-to-time which may not exceed the amount reasonably necessary to cover our administrative costs to reprocess the Debit Payment.
      1. Financial Institution means the financial institution nominated by You on the DDR at which the Account is maintained.
    9. Membership Agreement means the agreement for services between You and the Service Provider in relation to which you have made the Direct Debit Request.
    10. Service Provider is the entity with which You have contracted to receive services under the Membership Agreement.
  2. Debiting your account
    1. By written request you have authorised Viva Pay to arrange for funds to be directly debited from the Account on the Debit Day in accordance with the terms of this Agreement and for the amounts due and payable under the Membership Agreement. You agree that Viva Pay debits these funds on behalf of the Service Provider.
    2. Viva Pay will only arrange for funds to be debited from the Account on the Debit Day as authorised in the Direct Debit Request and in accordance with the Membership Agreement.
    3. If the Debit Day falls on a day that is not a Banking Day, we may direct the Financial Institution to debit the Account on the following Banking Day. If you are unsure about which day the Account has or will be debited, you should ask the Financial Institution.
    4. You acknowledge that sufficient funds must be available in the Account on each Debit Day. If a Debit Payment is unsuccessful, we will continue to rely on this authority to debit amounts owing by You to the Service Provider as directed by the Service Provider and/or in accordance with the Membership Agreement and may do so at any time after a Debit Day. You agree that we may also rely on this authority to debit Dishonour Fees due and payable to Us as notified to you from time-to-time or as provided for under this Agreement or the Membership Agreement.
  3. Payment Disputes
    1. If You believe that a Debit Payment has been initiated incorrectly or without authorisation, You must contact Us in writing within seven (7) days of the transaction date.
    2. We will respond to You within seven (7) days and investigate any disputes raised by You within a reasonable timeframe and will notify You of the outcome.
  4. Variation and Termination
    1. You may request a variation to this Agreement by providing written notice to Us setting out the details of the request.
    2. You understand that Viva Pay cannot agree to any variation that conflicts with your rights and obligations under the Membership Agreement and You acknowledge that Viva Pay acts on behalf of the Service Provider subject to your DDR.
    3. Viva Pay may vary the terms of this Agreement by providing written notice to You, including any changes in payment amounts or schedules. You or Viva Pay may terminate this Agreement by providing written notice to the other Party in accordance with any cancellation timeframes set out in the Membership Agreement or as required by law.
    4. You acknowledge that Viva Pay may assign this Agreement to an alternate service provider and You authorise the assignee service provider to carry out Direct Debit services on your behalf.
  5. Your obligations
    1. You must ensure that there are sufficient clear funds available in the Account to allow a Debit Payment to be made on each Debit Day. If there are insufficient clear funds in the Account then:
      1. You may be charged a fee and/or interest by your financial institution and Viva Pay does not accept any responsibility for such fees;
      2. You may also incur a Dishonour Fee payable to Us; and
      3. You must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that we can process the debit payment.
    2. You must also confirm:
      1. with your financial institution that direct debit and/or direct entry payments are available from your account; and
      2. that the account details provided by You to Us are correct.
  6. Information Privacy
    1. Viva Pay shall maintain the confidentiality of all personal and financial information obtained from You in connection with the Agreement, in compliance with applicable privacy laws and regulations.
    2. Viva Pay will not disclose any personal or financial information to any third party without written consent, except as required by law or as necessary to fulfill the obligations under this Agreement.
    3. A copy of Viva Pay’s Privacy Policy and Collection Notice is available here: https://vivaleisure.group/privacy-policy/
  7. Relationship with Service Provider
    1. You acknowledge that Viva Pay has been engaged by the Service Provider to facilitate direct debit payments on its behalf and You consent to such an arrangement and the terms of this Agreement.
    2. You understand and acknowledge that Viva Pay is acting as an agent of the Service Provider and that it does not provide any goods or services and has no express or implied liability in relation to any goods or services including those provided under the Membership Agreement.
  8. Notice
    1. Notices from You to Us can be made by emailing [email protected]
    2. Viva Pay will notify You by sending a notice in the ordinary post to the address you have given us in the Direct Debit Request or to your nominated email address.