Agreement: this Agreement which is made up of the Details, the attached Terms, the Waiver, and any other documents provided to you by us.
ACL: means the Australian Consumer Law in the CCA. Box Up Fitness: means Box Up Fitness ACN [insert].
Biller: Our third party biller [insert name and ABN].
Cancellation Fee: the Cancellation Fee payable under clause 7 as set out in the Details.
CAA: the Competition and Consumer Act 2010 (Cth).
Details: the part of this Agreement described as the “Details Section”.
Direct Debit Amount: what you agree to pay by direct debit each Direct Debit Payment Frequency as set out in the Details.
Direct Debit Payment Frequency: 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.
Facilities and Services: includes Box-Up Fitness premises and all classes, exercise areas, bathrooms, equipment, and any services that you may use.
Fees: fees that apply under this Agreement as set out in the Details and referred to in clause 7.
Joining Fee: the Fee payable under clause 7 as set out in the Details.
Member: a Box Up Fitness member, or if the member is under 18, the Box Up Fitness member’s guardian.
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 7 and set out in the Details.
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 5 or 6.
Start Date: when this Agreement starts as set out under the First Payment Due Date in the Details.
Terms: the part of this Agreement described as the “Terms and Conditions”.
Waiver: means the Pre-Exercise Readiness Questionnaire and Waiver completed and signed by the Member
2.1 When you join Box Up Fitness, you will need to give us information noted in the Details and provide us with photographic identification.
2.2 Any Membership Fees paid in advance are not refundable.
2.3 In accordance with the Fitness Industry Code of Practice:
(i) if the Membership Term is greater than 3 months, the Member has a 7-day cooling off period from the assigned date to terminate and must do so in writing; and
(ii) if the Member terminates this agreement during the cooling off period then the Member is entitled to a refund of any Membership or Joining fees (less the reasonable costs for services provided or business administrative processes of Box Up Fitness).
2.4 Each Member warrants that on joining the following gym rules will be adhered to, including but not limited to, a towel to be on person at all times, wiping down of equipment after use, no physical or verbal abuse to any other person, respectful use of the equipment, replacing equipment in its place when use has been completed.
3.1 For safety and security reasons you must be at least 18 years old to become a Member, unless at the discretion of Box Up Fitness, which may accept members at least 16 years old where a guardian will be required.
3.2 A Member warrants as an Essential Term of this Agreement, that the Member is:
(i) medically fit and able too participate in physical exercise and has the ability to and train in a group class environment and personal training environment;
(ii) is not aware of having or had, any physical or mental disability, any conditions, any disease or syndrome, which may be aggravated or exacerbated by physical exercise or which could result in any injury, deterioration of health or death when physical exercise is undertaken; and
(iii) promises that information you give us will be true and accurate and not misleading in any way.
3.3 The Member acknowledges that Box Up Fitness does no warrant that its Facilities and Services are approved by a medical authority.
3.4 The Member warrants and accepts with activities undertaken at Box Up Fitness and through the Facilities and Services, there is a risk of minor and/or major accidents, injuries, illnesses, or death occurring. The Member agrees to use the Facilities and Services at their own risk. The Member agrees that it has been offered a pre-exercise questionnaire (Waiver) relating to use of the Facilities and Services. Any rights and obligations under clause 3.4 and 3.5 will not be affected if a Member provides answers in the Waiver which indicated that they have an injury or a risk of injury in participating in the Facilities and Services. If an answer indicates that a Member has an injury or risk of injury, that Member must not use the Facilities and Services until a clearance ha been obtained from a medical practitioner which is to be provided to Box Up Fitness.
3.5 Each Member agrees to conduct themselves in a safe and reasonable manner.
3.6 The Member indemnifies and releases Box Up Fitness, its manager, owner, all agents and contractors, together “Box Up Fitness” from any claim:
(i) arising out of the acceptance of advice from Box Up Fitness, or during the use of the Facilities and Services or any activities at Box Up Fitness, causes deterioration of health, exacerbation of any condition, disease, illness, injury or death;
(ii) for any personal injury sustained by the Member while on or about Box Up Fitness premises and/or utilising the Facilities and Services, including personal training services; and
(iii) where Box Up Fitness is negligent; and
(iv) use of equipment in any way; and
(v) slipping and/or falling or dropping of equipment.
3.7 You must tell us promptly if you change your contact or payment details or if there is a change to your personal information, including anything that may affect health or safety.
3.8 You understand that photos, films, videos or audio recordings are sometimes taken of Members for promotional purposes. By signing this Agreement, you give us permission to do this and agree to allow your image to be used by Box Up Fitness and you assign your rights in any of these materials to Box Up Fitness.
3.9 You agree to adhere to the gym rules (see clause 2.4) which may change from time to time.
3.10 Any Member bringing any guest and/or visitor to the Box Up Fitness premises must ensure the gym rules are adhered to (see clause 2.4).
4.1 You may temporarily suspend or freeze your Membership for any reason if your account is up to date. In any 12-month period you may freeze your Membership 1 time for up to 1 month.
4.2 The Freeze Fee usually applies during any freeze period.
4.3 While your Membership is frozen, the Minimum Term will be extended for the same time as the freeze period. Direct debit payments that fall in the freeze period will also be frozen (except the Freeze Fee).
5.1 Notices must be given in writing (email, in person or by mail) and include all of your persona information (name, address, DOB, contact number, email and signature).
5.2 Cancelling your Membership on or after the end of the Minimum Term.
(i) Your Agreement will continue after the Minimum Term unless you tell us in writing at any time (but at least on 30 days’ notice) 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.
(ii) If your Agreement continues beyond the Minimum Term, you can cancel any time by giving us at least 30 days prior written notice.
(iii) If your Agreement continues beyond the Minimum Term, the Membership Fee and rate of the Instalment which you have been paying throughout the Minimum Term will continue to apply until your Membership ends (unless there has been a discretionary increase to the Fees, in which case the new increased amount will apply).
5.3 If your Minimum Term will be greater than 3 months then you have a right to end this agreement within the cooling off period outlined at clause 2.3.
5.4 During the Minimum Term, you can cancel your Membership at any time, subject to the relevant notice period, by telling us in writing and paying a Cancellation Fee.
5.5 If you cancel your Membership for any reason, and subject to clause 5.4, 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 Joining Fee, and the fees for any services supplied
6.1 In addition to our other rights under this Agreement, we may cancel your Membership if you breach any obligation under this Agreement.
6.2 If we cancel your Membership under clause 6.1, 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 Joining Fee, and the fees for any services supplied. We may also charge a Cancellation Fee and recover costs, loss or damages caused by your breach.
7.1 The Fees you have to pay are set out in the Details. If you do not make payment when it is due, your Membership may be suspended, and you could be refused access to the Facilities and Services until all outstanding payments have been made. 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. Other consequences may also apply with respect to late or rejected direct debit payments (see clause 8). Fees and charges continue to accrue during a suspension.
7.2 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 Direct Debit Amount. The same applies if you are within the Minimum Term and the Direct Debit Payment Period ends after the last day of the Agreement.
7.3 A Cancellation Fee is payable if you want to cancel your Membership for your convenience in the Minimum Term. It is the amount equal to the balance of your Membership Fees for remainder of the Minimum Term or a sum equal to 30 days Membership Fees (whatever is the higher). A Cancellation Fee may (at our reasonable discretion) also be payable by you if your Membership is ended by us.
7.4 After the Minimum Term, fees may be increase at our discretion. We will make reasonable efforts to tell you of any Fee changes. If your Fees are varied, you authorise any debits from your nominated account to also be varied.
7.5 We can deduct all Fees and charges that you must pay under this Agreement from any refund we give you. ent.
8.1 If you pay any Fees, including ongoing Membership Fees, by direct debit, then this will be through our Biller.
8.2 You will be provided with a copy of Direct Debit Payment Agreement of the Biller which applies to any direct debit services. The Direct Debit Payment Agreement, which we are not a party to, is entirely separate to this Agreement.
8.3 By nominating a credit or debit account, you authorise our Biller, 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.
8.4 If an automatic direct debit arrangement is in place, your Membership Fees will continue to be debited from your account until you or we cancel the arrangement by advising your bank or credit provider. If you end this Agreement or stop the automatic debit arrangement in a way not described in this Agreement, you may be liable for damages for breach of contract. You should, however, cancel any direct debit authorisation when your Agreement lawfully ends.
8.5 Late or rejected direct debit payments
(i) You must ensure there is enough money in your nominated account at the time of payment, or the next working day if that falls on a day when banks do not process payments. If there isn’t enough money in your account and it can’t be debited, you may be charged with a Biller’s fee.
(ii) You authorise our Biller to deduct any unpaid arrears outstanding on your account.
9.1 We may sometimes make changes to this Agreement and where we can, we will make reasonable efforts to tell you of any change in advance.
10.1 Under the ACL we guarantee that the services we supply are provided with due care and skill.
10.2 Under certain legislative provisions, however, we can ask you to accept some limitations to the ACL guarantees. 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.
10.3 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 14.1, 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.
10.4 You promise not to unnecessarily bring valuables into Box Up Fitness and agree that it is not the obligation of Box Up Fitness to look after unattended property.
11.1 You agree to pay for any loss or damage to the Facilities and Services or to the premises of Box Up Fitness caused by you or arising as a result of your act or omission, or breach of this Agreement.
11.2 Any malicious damage caused by you to the Facilities and Services, or equipment of Box Up Fitness generally will be fined and will be considered a essential breach of this Agreement.
12.1 We may close Box Up Fitness and/or the Facilities and Services at any time for a period of time, all at our discretion. If we close, we may freeze your Membership throughout this time. We will do what we can to provide you with notice of such a closure.
13.1 We are not responsible if Members cannot use the Facilities and Services because of an event caused by a natural force (such as a pandemic, fire or a flood) or something beyond our reasonable control. If this continues for more than 90 days, then either you or we may suspend this Agreement immediately by written notice. No Fee will apply.
13.2 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.
13.3 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.
13.4 You agree that we have not made any representations or promises that you have relied that are not in this Agreement.
13.5 The law of New South Wales applies to this Agreement.