X-ACTIVE

Terms and Conditions

1  How these terms work

1.1 These terms, along with:

• • your membership application;
  • health declaration and waiver;
  • the gym code of conduct; and
  • any other terms or policies published by us on our website or in the gym from time to time,
  • form the agreement between you and us (Agreement).  It is important that you read and understand the Agreement.  If any terms of the Agreement change and you continue to use the gym, you will be deemed to have accepted those terms.  It is important that you check our website regularly for any updates.

If you have any questions, please do not hesitate to contact one of our team.

1.2 The following terms used throughout this agreement have the meaning given to them below:

2 Membership

2.1 Term of membership

We offer a number of different membership options, including:

• Fixed term memberships in which you agree to a minimum term.  The minimum term will be recorded in your membership application.  As long as you comply with the terms of the Agreement, you will be entitled to access the gym for the duration of the minimum term.  If you would like to cancel the Agreement, your cancellation fee or refund (as relevant) will be calculated in accordance with clause 2or 4.4 of these terms.When your minimum term expires, your membership will periodically roll over each fortnight until it is cancelled or you enter into a new minimum term.
• If you purchase day passes, you will only be entitled to enter the gym as many times as you like on the days that you use them.  For example, if you purchase a pack of 10 day passes, you may enter the gym as many times as you like on 10 days.Day passes will expire if they are not used within a certain amount of time.  The expiry date for your passes will be notified to you when they are purchased.  If you do not use any day pass before the expiry date, those unused passes will no longer be available.

2.2 Confirmation of membership

• • Once you have submitted your membership application, health declaration and waiver, and paid all of your applicable fees we may (in our sole discretion) confirm that your membership application has been accepted and issue you with an access card.  By submitting a membership application you are deemed to have signed this Agreement electronically.
  • It is important that the information you provide to us in your membership application, and health declaration and waiver is accurate and up to date.  You must let us know immediately if any of the information you have provided to us changes.
  • You can cancel your membership within 7 days of us confirming it has been accepted (Cooling Off Period).  Within the Cooling Off Period, you can cancel your agreement and we will refund any payments made by you, less your start up fee and any proportional amount if you have been using the gym.
  • You may also change your membership (ie to a different minimum term length) during the Cooling Off Period and be refunded the appropriate amount if you have paid for the entire minimum term upfront or paid a higher membership fee.
  • The Cooling Off Period only applies to new memberships, not membership changes or members who have moved from a minimum term to casual periodic membership.
  • Members can only change minimum term to a shorter minimum term within cooling off period.

2.3 Fees

• • You may be required to pay a start up fee when you join or change your membership.  This fee will be listed in your membership application or advised to you before you change your membership.  This fee cannot be refunded even if you cancel during the Cooling Off
  • Your membership fee will be calculated having regard to the membership option that you choose.  You can pay your membership fee up front when you join, or fortnightly in advance.
  • The date of your first membership fee payment will be notified to you when your membership is confirmed by us.  If you do not pay any of the fees when due, you will not be allowed to access the gym.
  • If you do not pay your membership fee on time, for any reason, you may be charged a late fee for each payment that fails and you will not be able to access the gym.  We will make reasonable attempts to contact you when a payment fails.
  • The gym may be closed on public holidays or as decided by the gym’s management from time to time.  This will not reduce your membership fee.

2.4 Third party providers

• • All of your payments to us are facilitated by our third party payment provider.  You must agree to their terms and conditions as partof your membership application.  Those terms and conditions can be found here.
  • If you have any issues or queries about direct debit payments, or you would like to dispute a charge, you should contact our third party provider directly.  We can provide you with their contact details.
  • If you default in payment of your membership fees we may arrange for a third party debt collection agency to collect your outstanding fees.  You authorise us and our third party payment provider to pass your information on to a debt collection agency.  If this debt is sent to a debt collection agency, further fees and charges may be payable.
  • If you repeatedly fail to pay your membership fees, and do not respond to our reasonable attempts to contact you, we reserve the right to terminate this Agreement and charge you the full amount of your remaining minimum term.
  • You must ensure that the payment method you choose is available for the length of your Agreement.  If your payment details cannot be processed, you will be responsible for all resulting fees (including all late payment fees charged by us and our third party payment provider).  You must ensure that we are kept up to date with any changes in your payment details.

2.5  Meeting your responsibilities

You must make sure that:

• your account can accept direct debits (your financial institution can confirm this);
• there is enough money in your account when your membership fee is due (and any processing period);
• you tell us if you are transferring or closing your bank account at least 48 hours before your next direct debit; and
• you tell us about any changes to your credit card, such as its expiry date or number, at least 48 hours before your next direct debit.

2.6  Discounted rates

• From time to time, we may offer discounted membership fees.  These include:
  • • if you pay your entire membership upfront, we may offer you a discounted membership fee for doing so or extend your minimum term at no additional cost to you.  The membership fee for the entire term must be paid in one upfront payment when you submit your membership application.
    • from time to time we may offer discount codes or promotions.  The terms of these will be available on our website in connection with that promotion;
    • we may offer membership discounts for pensioners, concessions (including government concessions), seniors and students.  This discount will apply on minimum term memberships only.  You will be required to show us evidence of your status from time to time and the discount may be revoked if you no longer fall into the relevant category of person.
    • families may be granted a discount on a joint membership.  In this case, the membership fee for all family members must be paid from one source ie all family membership fees must paid up front for the minimum term or the direct debit for all family members must come from the same account.
• The discounted rate will be decided by us and may be subject to change.  In the event that we change the rate of discount in a way that adversely affects you, or remove it all together, we will give you at least 30 days’ notice and allow you to terminate your membership with us.
• You may only receive one category of discount on any membership.
• All discounts are granted in our sole and absolute discretion.

2.7 Pausing your membership

• You may freeze your membership.  The minimum freeze period is two weeks and you may freeze your membership for a maximum of eight weeks each calendar year.  You must contact us at least three business days prior to the date of the first frozen payment.  You will not be charged your membership fee during the freeze period, but we may charge you a fee for freezing your membership.
• If you unfreeze your membership within the minimum freeze period, you will be charged the full membership fee for that period.
• Your minimum term will be extended by the number of weeks that you pause your membership.
• Before freezing your membership, you must make sure your membership fees are up to date.  You cannot freeze your membership if any fees are outstanding.
• If we are required by the state or federal government to temporarily close the gym, we will freeze your membership for that period and you will not be charged any membership fees.  If you have a minimum term, it will be extended by the length of that temporary closure.
• We may allow you to pause your membership (including payment of any membership fees) if you suffer an injury which prevents you from training at the gym.  Such a pause will be granted in sole discretion and we will require medical evidence of such an injury.  The length of the pause will be treated as an extension to the minimum term.

3 Membership criteria

3.1 Age requirements

• The minimum age for membership is 16.  

• If you are 16 or 17, a parent or guardian must review and confirm your membership application and health declaration and waiver.  You may then do unsupervised resistance training once a qualified staff member has:
  • assessed your health declaration and waiver; and
  • written and supervised an initial resistance training program for you.

3.2 Your Health

Always keep in mind that exercise, the use of fitness equipment, participation in fitness classes and training programs, and accessing the gym’s facilities involves a risk of being injured or permanently disabled, including the risk of death.  You are responsible for monitoring your own health and following medical advice.

4 Cancelling your membership

4.1  How can you cancel your membership?

• You can cancel your membership by writing to us by email, speaking to the team at reception or by giving us a call.  Our contact information is available on our website.
• When you attempt to cancel your membership, you must:
  • confirm at least two methods for your contact details (eg mobile phone and email);
  • keep a copy of your request; and
  • make sure that you cancel your direct debits.
• Other than under clause 2(a)Day passes cannot be cancelled by you and we will not refunded them.

4.2  Cancelling during your minimum term

• In certain circumstances, we may allow you to cancel your membership without any additional financial cost.  This includes if you are sick or incapacitated.  You will be asked to provide reasonable medical evidence to confirm this.
• If you cancel your membership part way through a payment cycle, you may be required to pay until the end of that cycle.
• If you otherwise wish to cancel your membership, you will be required to pay out the remainder of your minimum term less 10% of that fee.  If you wish to cancel your membership within the final 30 days of your minimum term, you must pay out the entire remaining period with no discount.
• The date of cancellation will be effective from the date on which we confirm your membership is cancelled in writing.

4.3 Giving us notice

• You must give us at least 30 days’ notice to cancel your membership.  This applies to all forms of membership, unless you are cancelling for medical reasons or bankruptcy (with supporting evidence).
• Members need to pay off all arrears before giving 30 days notice for cancellation.
• We count this period from the date of your request unless we have frozen your membership due to the government mandated closure of our gym and we receive your notice to cancel during that period, in which case we will count this period from the date that our gym opens.
• Your membership payments are payable up to the date that your notice period ends and your final debit may be a pro rata amount.
• You cannot freeze your membership payments during the notice period.

4.4 Refund of upfront payment

• If you apply to cancel your upfront prepaid membership for:
  • any reason in clause 4.2(a), you will be refunded the value of the remaining minimum term.
  • any other reason, you will be refunded 10% of the value of the remaining minimum term.

4.5 Cancelling if changes to terms and conditions adversely affect you

• We reserve the right to change the terms of this Agreement.  If we consider that such changes adversely affect you, we will let you know in writing and allow you to terminate this Agreement within 30 days.  In this case, you will be entitled to a refund of your remaining minimum term (if prepaid) or the cancellation of your direct debit without penalty.  You will not be charged a cancellation fee, but you will not be entitled to a refund of your start up fee.  Changes to club timetables, facilities and hours of operation or non-material changes will not trigger this clause.
• You may cancel your membership if we materially breach our obligations under the Agreement do not fix the breach in a reasonable time.  We will refund you any membership fees you pay between the date of notification and the date on which we decide that we cannot fix the breach. For the avoidance of doubt, you cannot cancel your membership because of a change to class timetables, staff, instructors or personal trainers

4.6 Transferring membership

• You can transfer your membership to another person within the minimum term so long as the transferee:
  • is not a current member of the gym and has not been a member of the gym for the previous six months;
  • completes a new membership application and health declaration and waiver;
  • and pays a transfer fee (equal to the current start up fee);
  • is eligible to take up your membership(eg qualifies for any relevant concession or discount); and
  • has not previously been banned by us or failed to pay any of our fees in the past.
• The transfer is effective only after we have confirmed it in writing.
• We do not allow transfers once you have completed your minimum term.
• Day passes cannot be transferred.

5 Membership Card

• We will give you an access card and take an identification photo for our database.  If you visit the gym without your access card or photo identification, we may refuse you entry.
• You cannot let anyone else use your access card.  If you lose or damage your access card, we will charge you a replacement fee.

6 Liability

6.1 You agree that we, including all of our officers, employees, contractors and agents will be supplying to you services, including but not limited to access to:

• a gym, fitness studio and facilities;
• fitness equipment;
• fitness classes; and
• training programs.

together, the Services.

6.2 To the extent permitted by law and except in cases of gross negligence by us, we will not to be liable to you, your successor or assigns for any personal injury, permanent disability or death suffered by you in connection with the Services.

6.3 You indemnify us and our officers, employees, contractors and agents against any loss suffered by us or them as a result of your personal injury, permanent disability or death suffered in connection with the Services.

6.4 If you submit a membership application, you are agreeing that your rights to sue us if you are killed or injured because the Services were not in accordance with the statutory guarantees, are excluded, restricted or modified in the way set out in these terms and to the extent permitted by law.

6.5 Without limiting clauses 6.2, 6.3 and 6.4 and any other terms which are implied into the Agreement; or by statute in relation to the supply of services which cannot be excluded or limited, we will ensure that the Services are provided with due care and skill, are fit for the purpose for which they are commonly bought (as is reasonable in the circumstances), will correspond in the nature and quality with the Services demonstrated to you, and are free from any defect rendering them unfit for the purposes for which our services are commonly acquired.

6.6 Outside providers

• Some personal trainers or other staff may who utilise the gym may not be employed by us.You will need to pay those instructors directly for their services, and we are not responsible for their fees, any refunds or their actions.
• Any service they provide is a contract between them and you and we cannot accept any responsibility for any dispute, breach of contract or negligence.  You release us from any liability resulting from an act or omission by those people.
• We will however try to help you to resolve issues with such providers.  We will also take reasonable steps to ensure that personal trainers and other staff providing you with services in the gym are suitably qualified and adequately insured.

6.7 General terms

• All agreement fees include goods and services tax (GST). Your fees will change in line with any government GST rate changes, even if you are in your minimum term.
• Unless this expressly stated otherwise, any notice, consent, approval, waiver or other communication (notice) in connection with this Agreement will be sent by electronic communication to the address set out in your application form.  It will deemed to have been delivered one hour after the electronic communication is recorded as being sent by the device from which the sender sent that electronic communication, unless the sender knows or could reasonably be expected to know that an electronic communication system has failed and as a result, the electronic communication was not received,Unless a notice is received after 5.00 pm on a business day in the place of receipt or at any time on a non business day that notice is deemed to have been received at 9.00 am on the next business day.

• No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future.  No single or partial exercise of any right precludes any other or further exercise of that or any other right.
• If any provision of the Agreement is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed from the Agreement without affecting the validity or enforceability of the remaining provisions of the Agreement.
• The Agreement is governed by the laws in force in New South Wales, and the parties submit to the nonexclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia and any courts that may hear appeals from those courts about any proceedings in connection with the Agreement.