Agreement: this Agreement as described in the Important Notice.
Vibrant Health and Fitness: Andrew Goudie Trading As Vibrant Health and Fitness which may hereby referred to as VHF.
ACL: means the Australian Consumer Law in the CCA.
Biller: Our third party biller, Debitsuccess Pty Ltd, ACN 095 551 581.
Cancellation Fee: the $200 Fee payable under clause 11.6.
CCA: the Competition and Consumer Act 2010 (Cth).
Club: Vibrant Health and Fitness.
Club Rules: the rules that are referred to in clause 5.6.
Details: the part of this Agreement described as the “Details”.
Direct Debit Amount: what you agree to pay by direct debit each Direct Debit Payment Period as set out in the Details.
Direct Debit Service Request Agreement: the periodic billing agreement you enter into with our third party Biller for periodic billing services.
Direct Debit Payment Period: the frequency of your direct debit payments as set out in the Details.
Essential Term: a term of this Agreement that is so important you would not have signed the Agreement without it, for example, a requirement that the Facilities and Services are available 24 hours a day 7 days a week (subject to clause 17, clause 19.1 and the Special Conditions for 13 to 15 Year Olds).
Facilities and Services: includes Club premises and all exercise areas, change rooms, equipment, weights, benches, machines, mats and any programs, products, classes and services that you may use (excluding services referred to in clause 13).
Fees: fees that apply under this Agreement as set out in the
Details as referred to in clause 11.
Fixed Term Agreement: an agreement which automatically ends at the Minimum Term.
Fob Key: the access key that allows you to access the Club.
Fob – 24/7 Access Fee: the Fee payable under clause 11.4 as set out in the Details.
Important Notice: the part of this Agreement described as this.
Member: a Club member.
Membership: another word used to refer to this Agreement.
Membership Fees: the Fees you pay to access the Facilities and Services as referred to under clause 11 and set out in the Details.
Minimum Age: the minimum age to become a Member and use the Facilities and Services and referred to in clause 4.
Minimum Term: the minimum term as set out in the Details.
Ongoing Agreement: an agreement that continues on an ongoing basis after the Minimum Term until terminated under clause 9.
Pre-Exercise Health Screening Questionnaire: the questionnaire or other screening we may require you to answer before using the
Facilities and Services.
Pro Rata Fee: the Fee/s that may be applicable under clause 11.6 and set out in the Details.
Start Date: when this Agreement starts as set out in the Details.
Special Conditions for 13-15 Year Olds: the special conditions set out in the document headed “Special
Conditions for 13-15 Year Olds” and referred to in clause 4.
Staffed Hours: the times the Club is staffed
Tailgate Fee: $150 fee payable under clause 5.2
2 JOINING AND ACCESS
2.1 When you join our Club, you will need to provide us information noted in the Details. If you join under a particular offer, such as a corporate offer, you will also need to give us proof that you are eligible for that offer. A maximum of one offer can be used at a time.
2.2 On joining we will give you a Fob Key that will let you access and use our Club and the Facilities and Services.
2.3 Under no circumstances are you permitted to grant access to anyone else on your Fob Key
3 COOLING OFF
3.1 If you change your mind after joining, you have 48 hours to cool off or cancel your Membership starting on the Start Date. To be effective, you must let us know in writing at any time during this 48 hour cooling off period. Your written cancellation must be sent by email.
3.2 If you cancel your Membership under clause 3.1, we will charge you the Fob Key Fee and fees for any services or products already supplied but the Membership Fees will be refunded.
4 MINIMUM AGE
4.1 For safety and security reasons you must be at least 16 years old to hold a 24/7 Membership. However, if you are 13-15 years of age, and both you and your parent or guardian agree to the Special Conditions for 13-15 Year Olds (which are for your protection).
4.2 Your Membership may be immediately cancelled if you break one of the Special Conditions for 13-15 Year Olds.
5 HEALTH AND SAFETY AND ACCEPTABLE CONDUCT
5.1 Your physical condition
(a) When you sign this Agreement and each time you use the Facilities and Services, you must ensure you are in good physical condition and know of no medical or other reason why you should not exercise. If unsure, you should not use the Facilities and Services until you have sought appropriate medical guidance and been given a Medical Clearance Certificate for which we may request a copy.
(b) You agree to give us all relevant personal, health and fitness information both before and during any exercise program or other activity. You also agree to advise us if you answered Yes to any of the questions in the Pre-Exercise Health Screening Questionnaire. In some cases, responses you give will require that you seek medical guidance before exercising. You acknowledge that preexercise or other screening is no substitute for medical advice and does not guarantee against injury or death.
(c) You promise that information you provide us will be true and accurate and not misleading in any way.
(d) You must not use the Facilities and Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health or safety or that of other Members and others.
(e) We may suspend or cancel your Membership if we have reason to suspect that you have not complied with clause 5.1.
5.2 Your Fob Key
(a) You will need your Fob Key to access the Club and must swipe this each time you use the Facilities and Services.
(b) If you lose or forget your Fob Key you may access the Club during Staffed Hours if you show photo ID to Club staff but this will be at the discretion of the Club. You should not ask or expect another person to let you into the Club at any time.
(c) You must not let anyone else into the Club without the approval of Club staff or let anyone else use your Fob Key. If you break this term, you may be charged the Tailgate Fee and/or your Membership may be suspended or cancelled.
(d) If your Fob Key is lost or stolen you must let us know immediately and get a replacement in 14 days or you may be refused Club access. A Replacement Fob Key Fee of $10 may apply.
You may be required to participate in a Member orientation to familiarise you with the Facilities and Services before you use them.
5.4 Proper use of equipment
You promise to take care to use the Facilities and Services safely and properly. If you are ever not sure how to operate any equipment properly, you must ask Club staff before you use it.
You may bring a guest into a Club but only if they register with Club staff, and meet our other reasonable conditions. For example, they will need to be the Minimum Age, complete the PreExercise Questionnaire and other standard forms.
5.6 Club Rules
(a) Club Rules apply to everyone using the Facilities and Services. They are usually displayed in the Club.
(b) Club Rules form part of this Agreement so you must make sure you read, understand, and follow them at all times.
(c) If you break any of the Club Rules we will respond in a way we consider fair and appropriate. For example, in less serious cases, we may give you a warning but in serious cases or where you have repeatedly broken Club Rules we may suspend or cancel your Membership. If your breach causes us or another person costs, loss or damages, you agree to pay for these.
5.7 Illegal performance enhancing or other illicit substances
You acknowledge that the distribution or use of illegal or performance enhancing drugs is prohibited and promise that you will not use or distribute these substances in or near the Club.
5.8 Commercial activity
You acknowledge that engaging in any commercial or business activities in the Club, such as offering training services or selling goods in the Club is prohibited unless we grant you written permission to do so. If we do give you written permission, we can revoke this at any time.
5.9 Action for risky or inappropriate conduct
If you behave in a risky or seriously inappropriate way, for example, if you threaten or harass others, damage equipment, distribute or use illicit substances, or train other Members without our authorisation, appropriate action will be taken. For example, your Membership may be immediately suspended or cancelled (with a Cancellation Fee potentially applying), you may be banned from the Club and/or we may refer the matter to appropriate authorities. If your conduct causes us or another person costs, loss or damages you agree to pay for these.
6.1 24 Hour CCTV
Club premises have CCTV security cameras recording 24 hours a day (except in bathrooms) and may have remote video or other guarding services. This system is used for security purposes but does not guarantee against harm. You should contact the Club if you have questions on this.
(a) The Club has an emergency phone, panic buttons and security lanyards for safety and security reasons and to alert a security company in emergencies, for example, if you are, or feel, threatened, or need medical help. You must understand how emergency apparatus works and agree to use it only in an emergency.
(b) If you deliberately use emergency apparatus inappropriately, you agree to pay for any costs, loss or damages incurred because of this inappropriate use.
(c) Clubs may also have an emergency or crisis response procedure displayed which must be followed in emergencies.
6.3 Following Directions
You agree to follow any reasonable direction of a member of Club staff relating to health, safety or security or related matters.
7.1 Your personal information
From when you apply for Membership, you will need to provide us with, and we will have access to personal information about you, including information relating to your health and finances. Your personal information may be transferred to and stored out of Australia, including to a country that does not have the same level of privacy protection as Australia; and
7.2 General consent
7.3 Up to date contact information
You must tell us promptly if you change your contact or payment details or if there is a change to other relevant personal information, including anything that may affect health or safety.
7.4 Consent to use your image
You understand that photos, films, videos or audio recordings are sometimes taken of Members for promotional purposes. Your permission will first be obtained if this is done. By signing this Agreement, you agree to allow your image, recording or likeness to be used for any legitimate purpose by us and you assign your rights in any of these materials to Vibrant Health and Fitness.
(a) As noted in clause 6.1, surveillance and monitoring are used in the Club (except in bathrooms).
(b) Members and guests are not allowed to take photos and/or videos in the Club unless specific permission is granted by the Club.
8 PUTTING YOUR MEMBERSHIP ON HOLD
8.1 You may temporarily suspend or freeze your Membership for any reason if your account is up to date and, if you have a Fixed Term Agreement, it has more than 2 weeks left. In any 12-month period you may freeze your Membership for up to 6 weeks.
8.2 We may agree to freeze your Membership for more than the period noted in clause 8.1 for travel, medical or hardship reasons but you may be requested to provide supporting documentation.
8.3 We may request a Freeze Fee during any freeze period.
8.4 While your Membership is frozen, the Minimum Term will be extended for the same time as the suspension period. Direct debit payments that fall in the freeze period will also be suspended (except the Freeze Fee).
9 WHEN YOU CAN END THIS AGREEMENT
If you need to notify or tell us anything in writing under this clause:
(a) you can give this to us in person, by e mail or post;
(b) your notice needs to include an explanation why you wish to cancel
(c) We may request additional such as a medical certificate.
9.2 Cancelling your Membership on or after end of the Minimum Term
(a) If this is a Fixed Term Agreement, you do not need to do anything, as your Membership will end when the Minimum Term ends. We may contact you before your Agreement ends to discuss renewal
(b) If this is an Ongoing Agreement, it will continue after the Minimum Term unless you tell us in writing at any time (but at least 30 days) before the end of the Minimum Term that you wish to cancel your Membership. If you tell us before the end of the Minimum Term but it is less than 30 days before, your Membership will continue for another 30 days before it ends.
(c) If this is an Ongoing Agreement and it has continued beyond the Minimum Term, you can cancel any time by giving us at least 30 days prior written notice.
9.3 Cancelling for Medical Reasons
(a) You can request to cancel your Membership at any time by telling us in writing if you cannot use the Facilities and Services because you contract a serious illness or a permanent physical incapacity during the term of your Membership. This must be confirmed in writing by a doctor or other medical professional we reasonably agree to and you agree that we may contact the doctor or other professional for verification purposes.
(b) If you cancel under clause 9.3(a), we can charge you the Administration Fee. You will also be liable for Fees incurred, i.e. your Membership Fees for the time you were a Member (calculated on a pro rata basis), the Fob Key Fee and Fees for services already supplied.
9.4 Cancelling for your convenience in the Minimum Term
During the Minimum Term, you can cancel your Membership at any time by telling us in writing and paying a Cancellation Fee.
9.5 Other ways you can cancel this Agreement in the Minimum Term
You can also cancel your Membership in the following ways and without paying a Cancellation Fee:
(a) When prior notice is NOT required
You may cancel without giving us prior notice if:
(i) we break an Essential Term and have not fixed this in a reasonable time of you asking us in writing;
(ii) you become bankrupt and give us proof (such as supporting documents) to our reasonable satisfaction;
(iii) we change this Agreement in a way that adversely affects you (this does not include a variation of Fees in the case of a transfer of Membership); or
(iv)you become entitled to cancel under consumer laws.
(b) When prior notice is required
You may cancel by giving us 30 days written notice if you relocate more than 15 km from the Club and you give us proof to our reasonable satisfaction.
(c) Applicable Fees
If you cancel your Membership under clause 9.5(a) or (b), you will be liable for Fees incurred, i.e. your Membership Fees for the time you were a Member (calculated on a pro rata basis), the Fob Key Fee, Fob – 24/7 Access Fee and Fees for services already supplied. These Fees are not refundable except in very limited circumstances related to clauses 9.5(a) (i) and (iv).
10 WHEN WE CAN END THIS AGREEMENT
10.1 In addition to our other rights under this Agreement, we may cancel your Membership if you breach any obligation under this Agreement that can’t be fixed or if you breach an obligation that can be fixed but you do not fix it in a reasonable time.
10.2 If we cancel your Membership under clause 10.1, you will be liable for Fees incurred, i.e. your Membership Fees for the time you were a Member (calculated on a pro rata basis), the Fob Key Fee, Fob – 24/7 Access Fee and Fees for services already supplied. We may also charge a Cancellation Fee and recover costs, loss or damages caused by your breach.
10.3 You promise you are not bankrupt or insolvent and are able to pay applicable Fees at the time of signing. You agree that you will tell us promptly if you believe you will be unable to pay your Membership Fees for an extended period. We may cancel your Membership if you become bankrupt or insolvent.
10.4 If we cancel your Membership under clause 10.3 you will be liable for Fees incurred, i.e. your Membership Fees for the time you were a Member (calculated on a pro rata basis), the Fob Key Fee, Fob – 24/7 Access Fee and Fees for services already supplied.
(a) The Fees you have to pay are set out in the Details. Some rights and obligations that apply in relation to particular Fees are set out in this clause.
(b) If you do not make any payment when it is due, your Membership may be suspended and you could be refused access to Club and to Facilities and Services until all outstanding amounts have been paid.
(c) Your Membership may also be terminated if any Fees remain unpaid for an extended period. You will still be liable for all unpaid amounts. A Cancellation Fee may also apply.
11.2 Pro-Rata Fee
If you pay by direct debit and your Start Date begins after the first day of the relevant Direct Debit Payment Period, you will only be charged the applicable portion of the Periodic Direct Debit Amount
11.3 Fob Key Fee
This is the Fee charged to buy a Fob Key. This is not refundable except in very limited circumstances related to clauses 3 and 9.5(a) (i) and (iv). If you need a replacement Fob Key, a Replacement Fob Key Fee will apply.
11.4 Fob 24/7 Access Fee
This is the Fee charged to permit 24-hour access as set out in the Details. This is not refundable except in very limited circumstances related to clauses 3 and 9.5(a) (i) and (iv).
11.5 Membership Fees
(a) If this is a Fixed Term Agreement you must pre-pay your Membership Fees (i.e. pay them up front) when you sign this Agreement
(b) If this is an Ongoing Agreement, you must pay Membership Fees periodically in advance until your Agreement ends.
11.6 Cancellation Fee
(a) A Cancellation Fee is payable if you want to cancel your Membership for your convenience in the Minimum Term. It is an amount equal to 50% of the balance of your Membership Fees for remainder of the Minimum Term or $200 (whatever is the higher).
(b) A Cancellation Fee may (at our reasonable discretion) also be payable by you if your Membership is ended by us under clause 5.9, clause 10.1 or clause 11.1(c).
11.7 If you do not pay a Fee when due
(a) If you do not pay a Fee or other amount you owe when due, we can suspend your Membership until all amounts have been paid. This is in addition to our other rights under this Agreement, including those under clause 10.1. Other consequences may also apply with respect to late or rejected direct debit payments (see clause 12.3).
(b) Fees and charges continue to accrue during a suspension under clause 11.6(a).
11.8 Fee increases
(a) During the Minimum Term:
(i) your Membership Fees will not be increased (except in the case of a transfer of your Membership (see clause 11.8 (c);
(ii) other Fees may, however, be varied.
(b) After the Minimum Term, all Fees may be increased.
(c) If your Membership is transferred to another person upon agreeance by the club, the Membership Fees (and other Fees) may be varied to reflect those which are applicable at that time even if your Membership is transferred in the Minimum Term.
(d) We will make reasonable efforts to tell you of any Fee changes.
(e) If your Fees are varied, you authorise any debits from your nominated account to also be varied.
11.9 Refunds and the Credit Code
We can deduct all Fees and charges that you must pay under this Agreement from any refund we give you.
12 DIRECT DEBIT
12.1 Direct Debit Payment Agreement
(a) If you pay any Fees, including ongoing Membership Fees, by direct debit, then this will be through Debit Success.
(b) You will be provided with a copy of the Debit Success Direct Debit Payment Agreement which applies to any direct debit services. The Direct Debit Request Service Agreement, is entirely separate to this Agreement.
12.2 Authority to deduct Fees
By nominating a credit or debit account, you authorise Debit Success, to deduct from that account all Fees and other charges you are responsible for under this Agreement. You must keep your account details up to date.
12.3 Late or rejected direct debit payments (Also see clause 11.7) (a)
(a) You must ensure there is sufficient money in your nominated account on the usual payment, or the next working day if that falls on a day when banks do not process payments.
(b) If there is insufficient funds in your nominated account on the usual payment day, or there is another reason that your account was unable to be debited (except one within the Biller’s control), you will be charged the Direct Debit Rejection Fee. This will be added to your next debit amount. Prior arrears may also be included.
(c) You authorise our Biller to deduct any unpaid arrears outstanding on your account.
(d) Your bank or credit provider may charge you a fee for overdrawing your account if you do not have sufficient money in your account when payment is due.
13 OTHER SERVICES
(a) There may be other services, including personal training services, offered at Clubs by us, contractors, licensees and others which are offered separately and/or in addition to services provided under this Agreement. You will need to pay applicable fees directly to the providers of the services and agree to separate terms and conditions.
(b) We are not responsible for these third party provided services including fees or any associated costs claims or refunds, unless they are provided by us.
14 CHANGES TO YOUR AGREEMENT
(a) We may sometimes make changes to this Agreement, including our Club Rules. If we do this, we will try to do this fairly and by giving you a chance to cancel your Membership if you are adversely affected by the change and do not agree to it.
(b) We will make reasonable efforts to tell you of any change in advance and tell you when it will take effect. Subject to other Terms, the effective date will generally be at least 30 days from the date we tell you about the change unless it is not practical for us to tell you at this time. Your Membership will be amended from the effective date.
(c) You cannot cancel under this clause in the case of a transfer of your Membership or if we have to make the change to comply with a law or a direction of a relevant authority.
(d) VHF may assign or novate its rights under this Agreement to another service provided on notice of the assignment of novation and you hereby consent to such novation or assignment on notice being published on the web site.
15 OUR LIABILITY TO YOU
15.1 Statutory guarantees
(a) Under the ACL we guarantee that the services we supply:
(i) are provided with due care and skill;
(ii) are reasonably fit for any purpose you have told us you are using the services for or told us you wish to achieve; and/or
(iii) are supplied in a reasonable time.
(b) Under certain legislative provisions, however, we can ask you to accept some limitations to the ACL guarantees.
(c) If you sign this Agreement, you agree, to the extent allowed by section 139A of the CCA, to exclude or modify our liability to you for death or injury from our failure to comply with ACL guarantees.
(d) This exclusion does not apply if your death or injury is caused by our “reckless conduct” (as defined in the CCA).
15.2 Other implied terms
Nothing in this Agreement excludes, restricts or modifies any terms, conditions, warranties, guarantees, rights or remedies which cannot lawfully be excluded, restricted or modified. Otherwise, unless expressly included in this Agreement, all implied terms, conditions, warranties, guarantees, rights or remedies that can be lawfully excluded are excluded. In particular, but subject to clause 15.1 and 15.2, we are not liable for death or injury caused by our negligence or breach of implied terms that services will be provided with reasonable care and skill at common law. This does not exclude our liability for reckless conduct.
15.3 Loss of property
You promise not to unnecessarily bring valuables into the Club and agree that it is not the obligation of the Club to look after unattended property.
16 YOUR RESPONSIBILITY FOR DAMAGE
You agree to pay for any loss or damage to the Club or the Facilities and Services caused by you or your guests through a wilful, wrongful or negligent act or as a result of your, or their, breach of this Agreement.
17 CLUB CLOSURES
(a) We may need to close our Club for a period of time, for example, due to an emergency, or if required by a court order or by law.
(b) We may close our Club up to 14 days in any 30 day period under clause 17(a) and keep charging Membership Fees.
(c) If we close the Club for between 15 and 30 days under clause 17(a) in any 30 day period, clause 17(e) applies.
(d) We may also close the Club for up to 30 consecutive days if it is being refurbished or relocated.
(e) If we close the Club under clause 18(c) or 18(d) we will suspend your Membership at no cost to you and extend your Agreement for a time equal to the closed period.
(f) We will try, but cannot promise we will be able, to tell you about any Club closures in advance.
18 COMPLAINTS AND FEEDBACK
(a) If you have any concerns about the Facilities and Services or anything else in relation to your Membership, you should first raise it with Club staff.
(b) If you are uncomfortable about approaching, or do not wish to approach, Club staff, or are not happy with the response given, you may send a complaint to firstname.lastname@example.org.
19 GENERAL LEGAL MATTERS
19.1 Unexpected events
We are not responsible if Members cannot use our Club because of an event caused by a natural force (such as a fire or a flood) or a road or building closure or something similar beyond our reasonable control. If this continues for more than 30 days, then either you or we may cancel this Agreement immediately by written notice. No Fee will apply.
If a court decides that any part of this Agreement is or becomes illegal, void or unenforceable, that part is deleted and this does not invalidate the rest of this Agreement.
If we do not enforce our rights under this Agreement at any time, it does not mean that we may not do so in future.
19.4 Entire Agreement
You agree that we have not made any representations or promises that you have relied that are not in this Agreement.