Hexigo Fitness – Participation Agreement Terms & Conditions and Liability Release – March 2020
Hexigo Fitness (“HF”) Participation Agreement Terms and Conditions, and Liability Release
By participating in a Hexigo Fitness class, You confirm that You have read and understand these Terms. Notwithstanding this, we again remind You of the following:
- You acknowledge and agree that Your membership or purchase may not be transferred;
- You understand and agree to the cooling off and cancellation policies as set out in clauses 5 and 12.1 respectively. Furthermore, You acknowledge that You may not cancel Your membership during any freeze period;
- You agree to the payment of the Membership Fee and any applicable fees payable to HF’s third party payment provider, by way of direct debit from Your Billing Account or credit card, in the amount and frequency as set out in Your Membership Agreement;
- You acknowledge that foundation or any other discounted Membership Fees apply to new members only. Once you have acquired an HF Membership, you will not be permitted to acquire any foundation or discounted Membership Fees;
- You understand that HF may restrict, suspend or terminate Your membership for any of the reasons set out in clause 12.4; and By accepting these conditions, I acknowledge and agree that participating in physical exercise has inherent risks and undertaking such activity may result in personal injury, illness or death.
I voluntarily participate in this activity and assume all risks and dangers and all responsibility for any loss or damage that may be suffered. I agree, both on behalf of myself and my personal representatives, heirs or assigns to waive any and all claims that I have or may have in the future against HF, Catterfit Pty Ltd, its directors, officers, employees, agents or members (“the Indemnified Parties”) in respect of any loss, damage, injury or expense that I may suffer as a result of my participation due to any cause. I hereby release, indemnify and forever hold harmless the Indemnified Parties from any and all liability for any loss or damage of any kind suffered as a result of my participation. Furthermore, I acknowledge that I am responsible for the safekeeping of my belongings while I attend any HF Studio.
1.1 For the purposes of this Agreement, the following definitions have the corresponding meanings:
- Application Form means the form signed or electronic app completed by or on behalf of the Member relating to the application for membership with HF as contemplated by this Agreement which requires the Member to provide relevant details to HF (including the Member’s personal information such as name, address, contact details and payment information);
- Billing Account means the account nominated by You on the Application Form which Membership Fees will be debited, or your credit card details.
- HF means Catterfit Pty Ltd (ACN 628 734 396) and includes any heirs, agents, representatives, officers, directors, shareholders, employees, contractors, successors and assignees;
- HF Studio means any HF studio location Your membership entitles You to visit;
- HF Studio Rules means any rules in a HF Studio as notified to You;
- Direct Debit Request means the document permitting the third party payment provider to provide the direct debit or credit card facility in respect of payment of the Membership Fee from Your Billing Account;
- Equipment means all equipment for use by Members situated in an HF Studio;
- Member means a member or class participant at any HF Studio, and for the purposes of this Agreement, includes references to You and includes the parent or guardian of a Member if the Member is under 18 years of age;
- Membership Fee means the amount/s payable pursuant to this Agreement as specified in the Application Form, which for the avoidance of doubt may increase or decrease by written notice to You, in HF’s discretion acting reasonably;
- Membership Freeze Fee means the amount of $5.00 per week.
- Membership Freeze means a period of up to four (4) weeks to be taken in minimum one (1) week periods, during an annual period in respect of each Member, such annual period applying from the anniversary of the Member entering into this Agreement.
- Terms means these terms and conditions.
- You and Your means the person specified in the Application Form.
- Application of Terms
2.1 These Terms together with the Application Form which these Terms are attached or in which these Terms are referred, the HF Studio Rules and the Direct Debit Request together make up a legally binding agreement (“the Agreement”) between HF and the Member. This Agreement is binding on the Member by signing and returning the Application Form to HF or otherwise accepting these Terms by any other electronic means.
2.2 You agree that prior to submitting the Application Form, You have read and agreed to these Terms.
2.3 You acknowledge and agree that You have not relied on any representations (including any medical representations) made to You prior to or at the time of entering into this Agreement.
2.4 Submission of the Application Form does not guarantee membership. Members acknowledge that they must also complete a pre-exercise questionnaire to the satisfaction of HF before engaging in any exercise at a HF Studio. HF reserves the rights to reject any Application Form, or otherwise restrict, suspend or terminate an existing membership in circumstances where HF is of the reasonable opinion that You are unfit to use the HF Studio. You may be required to provide a medical certificate to HF confirming that You are fit to train prior to membership being granted or re-instated.
2.5 HF holds, so far as a provision of this Agreement is for the benefit of a third party, that provision on trust in respect of that third party, which You acknowledge and agree HF may enforce any such provision on behalf of that third party.
3.1 A Member’s membership commences on the date that the Member enters into this Agreement, or in the case where a Member signs up to a new HF Studio that is not yet trading, on the date of opening of that new HF Studio.
3.2 Subject to the terms of this Agreement, Members are entitled to use the facilities at any HF Studio so long as the Member continues to comply with its obligations set out in this Agreement, or any reasonable future changes to any documents contemplated by this Agreement as notified to Members.
3.3 Members are not entitled to transfer their membership unless as otherwise set out in this Agreement.
3.4 To the extent permitted by law, Members acknowledge and agree that Membership Fees are non-refundable, including for the avoidance of doubt, instances of non-usage by the Member.
3.5 Members must ensure that their contact details, including Billing Accounts, are current at all times and must notify HF of any change to Members’ details.
3.6 Members may at any time, on giving one (1) weeks’ notice, request a Membership Freeze, in which case the Membership Fee will reduce to the Membership Freeze Fee, Membership Freezes cannot be backdated.
3.7 Members may not cancel their membership at any time during a Membership Freeze.
3.8 Furthermore, Members acknowledge and agree that foundation or any other discounted Membership Fees apply to new Members only.
- Membership Fee
4.1 By entering into this Agreement You agree to pay all Membership Fees for the respective period in advance.
4.2 You acknowledge and agree that HF operates a cashless business, with payment of the Membership Fee to be made by way of direct debit from Your Billing Account or credit card. You further acknowledge and agree that HF uses EziPay as a third party billing provider and You will be required to complete the Direct Debit Request to allow deductions from Your Billing Account when entering into this Agreement.
4.3 The Direct Debit Request will continue until Your membership is terminated or cancelled in accordance with the terms of this Agreement.
4.4 You consent to HF providing Your personal information to EziPay. Furthermore, You also acknowledge and agree that HF may change its third party payment provider during the term of this Agreement. In the event the payment provider changes, HF or the current payment provider may assign or novate the Direct Debit Request to a new payment provider in which case You consent to HF or the current payment provider providing Your personal information to the new payment provider.
4.5 HF may recover from You any merchant or other fees HF may incur as a result of any costs incurred by or charged to HF as a result of any method of payment by You of the Membership Fee.
4.6 HF reserves the right to charge You a reasonable processing fee being the reprocessing fee in the event of dishonour of Your direct debit or any failed payment. Furthermore, Members will not be permitted to book any classes at any HF Studio unless and until all outstanding Membership Fees together with any fees incurred by HF are paid up to date.
4.7 You must not do anything that will result in the closure or cancellation of the Billing Account without taking appropriate steps to update Your Billing Account with HF. You will remain liable to HF for any unpaid Membership Fees or any additional fees incurred by HF in this regard.
- Cooling Off Period
5.1 All new memberships are subject to a cooling off period of 7 days. For the avoidance of doubt, the cooling off period does not apply to any renewals or transfers of memberships.
5.2 A request for termination of membership during the cooling off period must be made in writing and issued to HF.
5.3 For any membership terminated validly during the cooling off period, HF will refund to You the total of all Membership Fees less any reasonable fees actually incurred by HF and classes used by You during the cooling off period on a pro-rata basis.
- Conditions of Entry
6.1 To ensure HF is able to provide a high level of service in a safe, healthy and pleasant environment, Members acknowledge and agree that failure to comply with the following conditions may result in the restriction, suspension or termination of Members’ membership:
- Members must not engage in conduct that is abusive, improper, harmful, threatening, endangers others or is otherwise not in the best interests of staff or other Members;
- Members must not access any HF Studio under the influence of drugs, alcohol or any other medications that warn against strenuous or excessive exercise under their influence;
- Members must at all times comply with any HF Studio Rules.
- Members must ensure that they are moderately dressed at all times. Clothing must be clean and tidy and free from any offensive prints or designs;
- Members must not engage in any illegal activities in any HF Studio;
- Members must not engage in any conduct to solicit business from Members or otherwise operate in competition with HF within an HF Studio;
- Members are not permitted to smoke, consume food or chew gum in any HF Studio.
- The minimum age for training with us is 16. People under the age of 18 are required to provide a certificate from a parent or legal guardian confirming approval to train with HF.
- Class Bookings and Cancellation
7.1 Class spaces are limited and must be pre-booked online to reserve a space.
7.2 Classes can be pre-booked up to seven (7) days prior to the class and closes 15 minutes prior to a class commencing.
7.3 If You pre-book a class and fail to cancel or attend without giving adequate notice to HF to re-allocate the booking or otherwise provide sufficient reasons for failing to attend (in HF’s discretion acting reasonably), You may be charged a “no-show fee”, which will be not more than the cost of a class, which You acknowledge is fair and reasonable.
7.4 Cancellations on pre-bookings can be done up to three (3) hours before an afternoon class or up to eight (8) hours for a morning class to avoid a no-show fee.
8.1 You must comply with all equipment operating and safety instructions, or any other direction given to You by any staff at the HF Studio.
8.2 You acknowledge and agree that Equipment within HF Studios has been purchased or leased from third parties and HF does not manufacture any of the Equipment. HF may not be held liable in respect of any defective or faulty Equipment, except to the extent that such defect or fault was caused by the negligent act of HF.
- Physical Condition
9.1 To the best of Your knowledge and belief, You represent and warrant to HF, You are not aware of any condition/impairment that may be affected or aggravated or otherwise prevent You from engaging in any physical activity and that You are sufficiently physically fit to participate without risk to Your health. You acknowledge that it is Your responsibility to seek Your own medical advice in relation to Your participation and You are wholly responsible for acting on all medical advice and for taking all such precautions as may be necessary in relation to any conditions or impairments that You may have at the time of Your participation.
9.2 If You are injured or become ill whilst participating, You consent to the administration of first aid and/or medical treatment by HF unless You have notified HF in advance in writing that You do not wish to be given any first aid or medical treatment. You agree that You are responsible for the payment or reimbursement of any medical costs incurred by or on behalf of HF in respect of any first aid or medical treatment rendered that You are responsible for arranging and paying for any personal medical insurance You might require to cover all or part of those costs.
9.3 You agree that whilst HF will take all reasonable steps to ensure Your safe participation, You assume all of the risks associated with Your participation.
- CCTV Surveillance
11.1 HF is not liable to You for any property that is lost, damaged or stolen while in a HF Studio, irrespective whether such property was placed in any storage facilities that may be allocated.
11.2 In circumstances where You cause damage to the Equipment or any part of the HF Studio, You will be liable to HF for the cost incurred for such repair or replacement.
- Termination and Cancellation
12.1 You may terminate Your membership at any time on the provision of two (2) weeks’ notice in person to HF (or by written notice in exceptional circumstances as determined by HF acting reasonably) and You will no longer incur any financial obligations after the expiration of that period. You may continue to visit HF Studios for any period that You have paid in advance but will cease to have access once that pre-paid period expires. You may be required to complete any forms reasonably required by HF to confirm cancellation of your membership.
12.2 If Your request for termination is for reason of permanent sickness or physical incapacity, You may immediately terminate Your membership on written notice together with a medical certificate evidencing such permanent sickness or physical incapacity.
12.3 Any unused Membership Fees will be reimbursed to You in circumstances where You terminate Your membership pursuant to clause 12.2.
12.4 HF reserves the right to immediately restrict, suspend or terminate Your membership upon verbal or written notice to You in circumstances where:
- You have breached any provision of this Agreement (including any conditions of entry) or any HF Studio Rules;
- there are health and safety concerns for You or any Member as a result of Your conduct;
- You have failed to make payment of any Membership Fees or any other fees payable under this Agreement;
- HF reasonably suspects that You have engaged in an illegal activity in any HF Studio.
12.5 In the event that Your membership is terminated in accordance with clause 12.4, termination will be effective from the date notice is provided to You. You will remain liable for all financial obligations until that date.
12.6 Upon termination of Your membership, You will no longer be permitted to access any HF Studio. Any monies outstanding remains immediately due and payable. You authorise HF to deduct the amount outstanding from any refund which may otherwise be payable to You. If there is a shortfall, You must pay the balance of the amount owing immediately.
12.7 Termination or expiration of this Agreement is without prejudice to the rights of each party against the other in respect of anything done or omitted under this Agreement prior to such termination or expiration.
- Release and Indemnity
13.1 HF acknowledges that the Australian Consumer Law contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by this Agreement. Nothing in this Agreement is intended to exclude or restrict the application of such laws.
13.2 To the extent permitted by the law, You hereby release and hold harmless HF and their staff from any expenses, costs, liabilities, claims, actions, proceedings, demands, damages, judgments and losses of any kind whatsoever (including consequential and economic losses, property loss/damage and damages for injury, including personal injury and death) (Losses) incurred or suffered by You and which arise out of, are caused by, are attributable to or result from Your participation in any activity in any HF Studio.
13.3 To the extent permitted by the law, You indemnify HF and their staff against any Losses incurred or suffered by any of them which arise out of, are caused by, are attributable to or result from any breach of this Agreement, breach of any warranty or any wrongful or negligent act or omission by You.
13.4 The release and indemnity contemplated in this clause 13 does not apply where any Losses are caused by the gross negligence of HF.
- Applicable Law
14.1 The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State of Victoria Australia.
- Privacy and Collection of Personal Information
15.1 HF may collect and use Members’ personal information for the following purposes including without limitation:
- to process and administer Your dealings as a Member;
- to provide You with the Equipment and assisting You with further relevant information; and
- to administer the transactions contemplated by this Agreement, including but not limited to processing any payments with any third party payment provider.
15.2 HF will generally:
- use personal information provided to it for the purposes relating to these Terms;
- not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by these Terms, or the Member consents to such a disclosure or such disclosure is required by law.
15.3 You authorise HF to disclose Your personal information to third party contractors and service providers that assist HF to operate its business.
15.4 HF relies on the Member to ensure that the personal information provided to HF is current and accurate. Members may find out what personal information HF holds about them and, where necessary, may correct any errors in this information (some restrictions and costs may apply).
15.5 You consent to HF collecting, using and disclosing the personal information provided to the HF on these Terms.
16.1 All amounts payable in relation to this Agreement are expressed to be exclusive of GST. If GST is payable on a taxable supply as defined in A New Tax System (Goods and Services Tax) Act 1999 then the amount payable by the Customer for that taxable supply will be the amount expressed plus GST.
17.1 Failure by HF to enforce or delay in enforcing any right or provision of this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed by HF in writing.
18.1 HF may at any time in its reasonable discretion assign this Agreement to any party as contemplated by this Agreement.
- Variation of Terms and Conditions
19.1 HF reserves the right to revise and amend these Terms from time to time to reflect changes in market conditions affecting the membership, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements or any other reason determined by HF acting reasonably.
- Electronic Communications
20.1 In addition to delivery in person, the parties agree to communicate via email or other electronic communication. HF accepts no liability for any direct, indirect, special, consequential or other losses or damages of whatsoever kind arising out of any electronic transmission, access to, or the use of the website or any information contained therein (including for the avoidance of doubt, any viruses, malicious computer code or other forms of interference which may damage Your computer system). You agree to take Your own precautions to ensure that submitting and receiving electronic communications does not expose You to risk and contains appropriate protection to prevent damage to Your computer system caused by viruses, malicious computer codes or other forms of interference.
- Promotion and media
21.1 In consideration of HF granting You a membership, You:
- acknowledge and agree that photographs or audio or video recordings containing the image, voice or likeness (Recordings) of You may be taken, captured or made by HF or any officer, director, employee, agent, subcontractor or volunteer of HF (Personnel);
- give unconditional and irrevocable consent for HF and its Personnel to use the Recordings and any information previously provided by you to HF (including any photographs or other content) (Content) in perpetuity without restriction as to changes or alterations, and to disclose any of your personal information that is contained in any Recording or Content, to any person (including via social media) and via any medium for the purpose of promoting HF or any other purpose HF reasonably requires;
- acknowledge and agree that you are not entitled to any remuneration, royalties or any other payment from HF in respect of the use of any Recordings or Content;
- acknowledge and agree that as between yourself and HF, HF is the sole legal and beneficial owner of all intellectual property rights in and attaching to any Recordings and consent on an irrevocable, worldwide and perpetual basis, to the infringement of all moral rights you may have in and to any such Recordings; and
- acknowledge and agree that HF may assign or transfer the benefit of the consent given under this clause 21.1 to any person.
22.1 If any part of these Terms (including any provision, part, paragraph, phrase or word) is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from these Terms, but the remaining provisions will remain in full force and effect.
22.2 In these Terms, unless the contrary intention appears:
- a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
- a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
- a reference to dollars is to Australian Dollars;
- the word “including” and similar expressions are not words of limitation;
- a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
- where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
22.3 Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by facsimile, post or email to the party to whom such notice is intended to be given, at the address, facsimile number or email address of that party in the Application Form or to such other address, facsimile number or email address as may from time to time be notified in writing to the other party.
22.4 These Terms contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
22.5 These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.