TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 The meaning of the terms used in these terms and conditions are set out below:
Access Key Fee
the fee payable for losing your access key, as specified in the Application Form
an application form to become a member of Keep Fitness, including those parts of the application processed through GymMaster
Australian Consumer Law
refers to the consumer law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)
an amount calculated by multiplying your fortnightly Membership Fee by the number of fortnights left in your fixed term after the notice period in clause 4.1 expires and deducting 20% from the total
a Keep Fitness club
Direct Debit Authority
an authorisation for Keep Fitness (or its nominee) to draw funds from your bank account to pay for your liabilities under these terms and conditions
the dishonour fee specified in the Application Form
the Freeze Fee specified on the Application Form
the rules of the Club, available at the Club, as amended from time to time
the gym member management software used by Keep Fitness
any term, condition, warranty, right or remedy applicable to these terms that is implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, which may include the Australian Consumer Law and Australian state or territory legislation
Keep Fitness Pty Ltd ACN 636 435 660
the membership fees specified in the Application Form
the fee payable for allowing another person to use the Club in breach of these terms and conditions, as specified in the Application Form
the transfer fee specified in the Application Form
1.2 In these terms and conditions:
(a) words importing the singular include the plural and vice versa;
(b) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(c) a reference to a statute includes a reference to all enactments amending or consolidating the statute and to an enactment substituted for the statute and any subordinate legislation, including regulations; and
(d) headings are included for convenience only and do not affect interpretation of these terms and conditions.
2. APPLICATION OF TERMS AND CONDITIONS
(a) entering into a Club (including as a visitor or casual user); or
(b) signing and lodging an Application Form, you agree to be bound by these terms and conditions with Keep Fitness.
2.2 The Application Form, Gym Rules and the Policies all form a part of these terms and conditions.
3.1 This clause 3 applies if you are applying for membership with Keep Fitness.
3.2 By signing and lodging an Application Form, you agree:
(a) to pay the Membership Fees in accordance with the Application Form;
(b) to pay the Access Key Fee on the commencement date of your membership;
(c) to pay all other fees payable under these terms and conditions when due and payable;
(d) to provide a Direct Debit Authority if you are paying Membership Fees by instalments;
(e) to provide all information reasonably required by Keep Fitness to consider and process your application (including information relevant to health and fitness levels);
(g) to promptly provide Keep Fitness with an update if any of your personal details relevant to your membership change; and
(h) to be bound by:
(i) these terms and conditions;
(ii) the Gym Rules; and
(iii) the Policies.
3.3 Keep Fitness may approve or deny any application for membership in its absolute discretion.
3.4 If Keep Fitness approves your application for membership, you agree to pay all Membership Fees as set out in the Application Form:
(a) on the commencement date of your membership in full; or
(b) fortnightly in advance by direct debit, for the duration of your membership.
3.5 If your membership is for a fixed term, and that term expires, you authorise Keep Fitness to continue your membership and direct debit your nominated account in advance for Membership Fees on the same terms as your fixed term membership (except for as amended in accordance with these terms and conditions) on a fortnightly basis, provided that we use best endeavours to notify you by email or post of the expiration of your membership term in advance.
3.6 If your membership is periodical, you authorise us to continue your membership until your membership is terminated in accordance with these terms and conditions.
3.7 You acknowledge that your Membership Fees may change if:
(a) you cease to hold any concessions that were applicable at the time that you submitted the Application Form (such as student or corporate concessions); or
(b) the Membership Fees are amended in accordance with clause 13.1.
3.8 Membership entitles you to access and use the Clubs in accordance with these terms and conditions.
4. CANCELLATION OF MEMBERSHIP
4.1 You may cancel your membership at any time by providing Keep Fitness 28 days written notice, during which period your payments must continue to be made in full.
4.2 You are not entitled to a refund of any pre-paid Membership Fees, except as permitted by these terms and conditions.
4.3 If you are a member with a fixed term membership that is paid in instalments, you must pay the Cancellation Fee on cancellation if you cancel more than 28 days before the end of your fixed term, other than a cancellation made under clause 13.2.
4.4 Notwithstanding anything else in this agreement, you may instantly cancel your membership without paying any Cancellation Fee if you contract a serious illness or permanent physical incapacity that prohibits you from using the Club and you provide Keep Fitness with reasonable evidence of the illness or incapacity to Keep Fitness’s satisfaction.
4.5 Notwithstanding anything else in these terms and conditions, you may instantly cancel your membership without paying any Cancellation Fee by providing notice of your cancellation within 7 days of the start date of your membership.
4.6 Keep Fitness may cancel or suspend your membership:
(a) if you behave in a manner inconsistent with the Gym Rules;
(b) if you do not comply with reasonable directions of Keep Fitness employees or agents;
(c) if you misuse our products, services or facilities or use them for purposes other than which they were designed;
(d) if you breach any term of these terms and conditions;
(e) if you fail to make any payment of your Membership Fees;
(f) if you are engaged in any illegal activity in the Club; or
(g) if your behaviour is improper or harmful to the best interests of Keep Fitness or other members.
4.7 If Keep Fitness cancels or suspends your membership under clause 4.6, you must pay all Membership Fees up to the date of suspension or cancellation and you will be liable for all fees including Cancellation Fees if Cancellation Fees would be payable under clause 4.3.
5. MEMBERSHIP TRANSFER
5.1 Membership may be transferred to a non-member by requesting the transfer with the Club and paying the Transfer Fee.
5.2 Transfers are subject to:
(a) the outgoing member having paid all fees payable under these terms and conditions; and
(b) the new member accepting these terms and conditions and agreeing to continue paying the Membership Fees (and all other fees) in accordance with these terms and conditions for the transferring member’s membership term.
6. MINIMUM AGE
6.1 You must be at least 14 years old to be a member of Keep Fitness.
6.2 If you are 16 years old or younger you must be supervised by an adult at all times while using the Club.
6.3 All minors:
(a) require parents or legal guardians to agree to these terms and conditions; and
(b) must comply with any additional restrictions set for minors in the Gym Rules.
7. DIRECT DEBIT AUTHORITY
7.1 By providing a Direct Debit Authority, you authorise Keep Fitness to debit Membership Fees and all other liabilities owing to Keep Fitness under these terms and conditions from the account nominated on the Direct Debit Authority. For the avoidance of doubt, these terms and conditions authorise Keep Fitness to debit your account for all charges owed to Keep Fitness, including (but not limited to) Tailgate Fees, Cancellation Fees, Dishonour Fees, Freeze Fees and Access Key Fees.
7.2 Keep Fitness may charge a Dishonour Fee in the event that any direct debit transaction fails.
8. FREEZING YOUR MEMBERSHIP
8.1 You may suspend your membership by providing us written notice requesting the suspension, provided:
(a) all Membership Fees are paid up to the date of the requested suspension; and
(b) you have requested no more than 2 suspensions in any 12-month period.
8.2 You may not suspend your membership for an aggregate period greater than 3 months in any 12-month period, after which your membership will be un-suspended and normal Membership Fees will resume.
8.3 The Freeze Fee will be payable for each week your membership is suspended. Other Membership Fees will not be payable for the duration of the suspension.
8.4 The term of a fixed term membership will be extended for the same time as your account’s suspension.
8.5 Keep Fitness may waive the Freeze Fee for hardship reasons in its absolute discretion.
9. USE OF CLUB
9.1 Clubs may only be accessed and used in accordance with these terms and conditions.
9.2 Keep Fitness reserves the right to refuse entry to any person, including members, for any reason.
9.3 To access a Club, you must:
(a) have a valid and paid up membership that is not cancelled or suspended; or
(b) have a valid visitor access pass.
9.4 Members must access to the Club using an access key. If your access key is lost, stolen or missing, you must inform Keep Fitness as soon as possible and pay an Access Key Fee for a replacement access key. Keep Fitness will replace a lost, stolen or otherwise missing access key on payment of the Access Key Fee.
9.5 Visitors and casual users of the Club may only use the Club:
(a) during Club staffed hours only; and
(b) in accordance with these terms and conditions and the conditions of their visitor access pass.
9.6 Appropriate work-out wear must always be worn inside the Club. Club staff may determine whether work-out wear is appropriate in their absolute discretion. For the avoidance of doubt, appropriate work-out wear also includes footwear.
9.7 If you allow anyone access to the Club without the approval of the Club staff (whether deliberately or inadvertently), including by allowing any other person to use your access key (Unauthorised Visitor):
(a) a Tailgate Fee will be immediately payable;
(b) you accept responsibility and liability for any injury, loss or damage of the Unauthorised Visitor; and
(c) Keep Fitness reserves the right to cancel your membership.
10. HEALTH AND SAFETY
10.1 By accessing the Club, you agree that:
(a) you reasonably believe based on reasonable grounds that you are fit and able to undertake active exercise;
(b) you will use our Clubs, services and equipment with due care and reasonable skill and on condition that if you have any difficulty using any equipment, that you will cease using that equipment.
(c) you have sought medical advice before exercising; and
(d) you will provide us with all relevant personal health and fitness information and that all information provided by you is true and accurate and not misleading in any way.
10.2 You must not access the Club if you suffer from any illness, disease, injury or other condition that could be a risk to your health or safety or that of other members and Keep Fitness staff.
11. CLUB HOURS
11.1 Clubs may close or vary opening hours for various reasons, including due to staff availability, extreme weather events, public holidays or due to maintenance or upgrade programs.
11.2 Keep Fitness may vary or changes classes and services for any reason, without being liable for any refund or credit to members for such changes.
12. RELEASE, INDEMNITY AND LIABILITY
12.1 Your use of the Club is entirely at your own risk and you acknowledge that the use of the Club may involve risk of injury, whether caused or suffered by you or another party.
12.2 You release, to the fullest extent permitted by law, Keep Fitness and its employees, officers, contractors and agents against and from all expenses, costs (including legal costs on a full indemnity basis), liabilities, claims, actions, proceedings, damages, judgements and losses of any kind whatsoever arising out of, caused by, attributable to or resulting from any accident, damage, loss, damage to property, injury or death to you or any other person in connection with your use of the Club.
12.3 You indemnify Keep Fitness against and from all expenses, damages, costs (including legal costs on a full indemnity basis), liabilities, claims, actions, proceedings, judgements and losses of any kind whatsoever that Keep Fitness suffers or incurs arising out of, caused by, attributable to or resulting from any accident, damage, loss, damage to property, injury or death to you or any other person in connection with your use of the Club.
12.4 You understand and acknowledge that Keep Fitness is providing recreational services and will not be held liable for defective products or equipment.
12.5 You acknowledge and understand that equipment in the Club may be damaged or may breakdown during unstaffed and staffed hours and that it is your responsibility to use the equipment safely, follow any safety instructions, check the equipment before you use it and in case of fault or breakdown you must not use any such equipment and where possible you must report any breakages or defects you observe to the Club.
13. CHANGES TO THESE TERMS AND CONDITIONS
13.1 Keep Fitness may amend these terms and conditions or your Membership Fees at any time by providing you with 28 days written notice via email to your designated email address or to your postal address.
13.2 If you do not wish to accept any proposed variation to these terms and conditions, you may cancel your membership, provided that you notify us in writing within 21 days of receiving our notice and pay all outstanding fees up to the proposed date of variation of the terms and conditions (except for, for the avoidance of doubt, any Cancellation Fee that may otherwise be payable).
14. AUSTRALIAN CONSUMER LAW
14.1 All Implied Terms are excluded from these terms and conditions to the maximum extent permitted by law.
14.2 By agreeing to these terms and conditions, you agree to exclude or modify Keep Fitness’s liability to you for death or injury from our failure to comply with the Australian Consumer Law pursuant to section 139A of the Competition and Consumer Act 2010 (Cth).
14.3 If Keep Fitness breaches the consumer guarantees under the Australian Consumer Law and you suffer reasonably foreseeable loss or damage, to the extent permitted by the Australian Consumer Law, we limit our liability to any one or more of the following (in our absolute discretion):
(a) the replacement of any products supplied;
(b) the repair of any products supplied;
(c) a refund of Membership Fees paid; or
(d) payment of the cost of you obtaining equivalent services elsewhere.
15.1 You acknowledge and agree to Keep Fitness using video and audio surveillance and recording of all areas of the Club, except for bathrooms or other amenities.
16.1 Keep Fitness may assign or novate these terms and conditions to a third party without your consent. Assignment or novation of this agreement does not provide a right of cancellation of membership.
16.2 These terms and conditions govern the entire agreement between the parties and supersede all prior representations, agreements, statements and understandings.
16.3 Unless varied by notice in writing by Keep Fitness, these terms and conditions shall be governed by and construed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of the courts in Queensland.
16.4 The parties agree that proceedings may be commenced in any Court in Queensland and consent to that Court having jurisdiction by virtue of clause 16.3 even though the Court would not otherwise have such jurisdiction without this consent.
16.5 Any failure by Keep Fitness to insist upon strict performance of any terms and/or conditions herein shall not be deemed a waiver thereof of any right that Keep Fitness may have and shall not be deemed to be a waiver of any subsequent breach of any terms and/or conditions.
16.6 In the event that the whole or any part or parts of any provisions in these terms and conditions should be held to be void or unenforceable in whole or in part such provision or part thereof shall to that extent be severed from these terms and conditions but the validity and enforceability of the remainder of these terms and conditions shall not be affected.