LEGAL AGREEMENT
1. This Agreement is between Shoalhaven City Council (we or us) and the person whose details are set out in Section 1 of the first page of this Agreement (you).
2. Under this Agreement you agree to become a member of the Swim & Fitness Scheme operated by us.
3. When you sign this form, you are entering into a legally binding Agreement with us.
4. Your Membership entitles you to access any Facility, on the Terms set out in this Agreement.
COOLING OFF
5. You may cancel this Agreement within 7 days of the Start Date. If you cancel this Agreement within 7 days of the Start Date we will charge you for services we have provided to you at the Facilities, but will otherwise refund you any other amounts you have paid to us. If you wish to end your membership more than 7 days from the Start Date then different terms will apply as set out in this Agreement.
MEMBERS UNDER 18 YEARS OLD
6. By signing on behalf of a child or young person under 18 years old, the parent or guardian agrees to be responsible for ensuring the child or young person exercises safely, pays their membership fees and otherwise abides by these Terms and the Rules.
7. The parent or guardian who signs this form also agrees to hold us harmless in respect of any claim made by or on behalf of the child against us to the extent that such claim would have been excluded under this Agreement, had the child been an adult and signed this Agreement on his or her own behalf.
SAFETY FIRST
8. The health and safety of members is important to us. This clause sets out your obligations to help ensure safety for members who use our Facilities.
a. Your physical condition – tell us in writing all relevant personal health and fitness information both before (through our pre-exercise questionnaire or otherwise) and during the course of any exercise program or other activity.
b. You promise that information you disclose to us will be true and accurate and not misleading in any way.
c. You must not attend and use the Facilities and services whilst you are suffering from any illness, disease, injury or other condition that could present a risk to the health or safety of other members and users of a Facility or yourself.
d. If you happen to use the Facilities and services before disclosing relevant health information to us, you promise that you are in good physical condition and you do not know of any reason why you may not be able to exercise safely. If you feel unsure that you can make this promise, we ask that you do not use the Facilities and services until we have completed your health and fitness profile.
e. Proper use of equipment – We will provide you with an instructional consultation with a staff member before using the Facilities and services which you must attend before use. In any case, you promise to take care when using the Facilities and services and make sure that you use the Facilities and services including equipment appropriately and safely. If you are ever not sure how to operate any equipment properly, please ask a staff member before you use it.
RULES OF GOOD BEHAVIOUR
9. A copy of the Patron Behaviour Guidelines is attached to this Agreement. By signing this Agreement you confirm that you have read the Patron Behaviour Guidelines and that you will abide by the Rules set out therein. Additional rules may be displayed at Facilities from time to time and those rules will also be deemed to be incorporated into this Agreement. Despite clause 38 of this Agreement, you must regularly read our literature and signage to keep up to date with the current Rules. If you do not comply with the Rules, we will take such action as we consider to be reasonable having regard to the Patron Behaviour Guidelines. This action may include suspending or terminating your membership.
10. We may amend the Patron Behaviour Guidelines from time to time. Any amendment to the Patron Behaviour Guidelines constitutes a variation to this Agreement.
WE CAN REFUSE YOUR ENTRY
11. We can refuse you entry to the Facilities, cancel your membership immediately or both, if you behave in a way that constitutes a serious or significant beach of the Rules under the Patron Behaviour Guidelines.
PLEASE FOLLOW OUR DIRECTIONS
12. You agree to follow any reasonable direction of a member of our staff relating to health and safety or any other matter.
LOST MEMBERSHIP CARDS
13. It is a requirement that you carry your membership card at all times whilst using our Facilities. If you lose your membership card you must advise Facility staff immediately and you will be required to pay the current fee for a replacement card.
FITNESS TIMETABLES
14. We may change our timetables for fitness and swim programs at our discretion and without notice to you.
OUR PRIVACY POLICY
15. From when you apply for Membership we will have access to personal information about you, such as information relating to your health and finances. We will protect this information and only use, disclose or deal with this information in accordance with our Privacy Policy. The latest version of the Privacy Policy is available on our website.
VIDEO MONITORING
16. We may use video monitoring in our Facilities for health, safety and security reasons. If you have any queries in relation to the use of monitors operating in and around our facilities please contact us.
PLEASE KEEP YOUR CONTACT DETAILS UP TO DATE
17. You promise to tell us promptly if you change your address, phone number, email, bank account, credit card information for payment or if there is a change to any other personal information relevant to your Membership with us. This includes any matters that affect the health and safety of you or others.
WHAT YOU GET WHEN YOU JOIN
18. From the Start Date you are entitled to the Membership benefits and use of the Facilities and services that apply to the Membership type you selected as indicated on page 1 of this Agreement.
NOTICES
19. Any notice required to be given by you under this Agreement must be in writing and delivered to us either by email or post at one of the addresses specified on page 1 of this Agreement.
YOU MUST PAY THE FEES
20. Where you have purchased a Membership for a period of time as indicated on page 1 then your Membership will continue for that Minimum Term unless terminated early in accordance with this Agreement. Where neither you nor we terminate this Agreement, any unpaid fees will need to be paid by you and in addition to our other rights we may have including our taking action to recover the outstanding payments.
OTHER WAYS THAT YOU CAN END YOUR MEMBERSHIP
21. You can end your Membership at any time during the Minimum Term with immediate effect by telling us in writing. No Cancellation fee will apply if you cancel your membership pursuant to clauses 22, 24 and 37 or if you are entitled to terminate this agreement under the Australian Consumer Law. A Cancellation fee will apply if you relocate or wish to cancel for any other reason (see clause 27 below).
IF WE DON’T OBSERVE OUR OBLIGATIONS
22. You can cancel your Membership by written notice to us if we breach any of our obligations under this Agreement and we have not remedied that breach within a reasonable time after you have given us a written request that we do so.
23. If you cancel your Membership in accordance with clause 22 you will be charged the Membership fees for the time you have been a Member to the date of cancellation, calculated on a pro-rata basis. You will be required to pay any outstanding fees for other services supplied to you.
YOU CAN CANCEL FOR MEDICAL REASONS
24. You can cancel your Membership by telling us in writing if you cannot exercise for the remainder of Minimum Term due to an illness or a physical incapacity and you produce supporting documentation to our reasonable satisfaction.
25. If you cancel your membership in accordance with clause 24, you will be charged the Membership fees for the time you have been a member calculated on a pro-rata basis and any outstanding fees for other services already supplied to you.
IF YOUR MEMBERSHIP IS NO LONGER CONVENIENT
26. Multi-visit passes are transferrable and may have multiple users. Multi- visit passes are valid for three (3) years from date of purchase.
27. If your Membership ends for any reason other than specified in clauses 22, 24 and 38 or because you are entitled to terminate this Agreement under the Australian Consumer Law, you will be liable for: the Membership fees from the Start date calculated on a pro-rata basis; any outstanding fees for other services already supplied to you; and the Cancellation fee.
WHEN CAN WE END YOUR MEMBERSHIP?
28. In addition to our other rights under this Agreement, we can terminate your Membership by written notice to you if you fail to act in accordance with any obligation under this Agreement and if capable of remedy, you do not remedy the failure within a reasonable time of us giving you written notice requiring you to do so. If we cancel this Agreement under this clause you will be liable for the Membership fees for the time you were a member, the Cancellation fee and any other fees payable for further fitness services already supplied.
29. We may cancel your Membership by written notice to you without the need to give a reason. If we cancel your Membership under this clause you will only be liable for the Membership fees for the time you were a member and any other fees for other fitness services already provided. No Cancellation fee will apply.
MEMBERSHIP FEES
30. You can pay your Membership fees up front and in full when you submit the Membership form, or you can elect to pay by equal periodic instalments (additional form required).
CALCULATION OF CANCELLATION FEES
31. The Cancellation fee will be equivalent to 2 months membership fees or the current Cancellation fee set by us from time to time, whichever is the lower.
REFUNDS AND THE CREDIT CODE
32. We are entitled to deduct all fees and charges that you must pay under this Agreement from any refund we give you. The National Credit Code does not apply to this Agreement.
ISSUES WITH OUTSIDE PROVIDERS
33. We will seek to make sure Outside Providers are appropriately qualified before granting them access to the Facilities. Examples of Outside Providers include coaches, physiotherapists, masseurs and personal trainers who may offer additional services from the Facilities that are not included with your Membership type. Outside Providers are neither employed by us nor are they our agents, even if they wear clothes displaying our name and logo. You will know that they are Outside Providers because they will require payment of their fee direct from you when you engage them.
34. We are not liable to you, and you release us from any claim arising from, any loss or injury suffered by you in connection with any services provided by an Outside Provider, other than to the extent caused by our negligence.
35. We have no responsibility in respect of the fees that you must pay directly to Outside Providers nor for any associated costs or refunds.
OTHER SERVICES
36. There may be other services offered at the Facilities that do not form part of your membership type but are available for you to purchase separately. These are not part of the services provided under your Membership and you will be advised at the time if any additional terms apply to these services.
CHANGES TO YOUR MEMBERSHIP AGREEMENT
37. Without limiting any other Term of this Agreement, we may make changes to this Agreement including our Rules during the term of your Membership.
38. Except where we change the Rules, we will provide you with advance written notice of the proposed change and tell you the date that it will come into effect, which will be at least 30 days from the date of our notification unless otherwise specified. Your Membership will be amended from either 30 days from the date of notification or the date specified in the notification.
39. You may terminate your membership by written notice, before the date on which the change becomes effective, citing the proposed change as your reason for termination. No Cancellation fee is payable if notice is received by us before the date on which the change takes effect.
40. Please note that you cannot terminate this Agreement under this clause if we are required to make the change in order to comply with a law or any direction of a competent authority.
OUR LIABILITY TO YOU
41. Statutory guarantees
a. ACL: The Australian Consumer Law (ACL) contained in the Competition and Consumer Act 2010 (Cth) (CCA) provides certain guarantees in sections 60 to 62 (statutory guarantees) which generally require that services supplied to you:
i. are rendered with due care and skill;
ii. are reasonably fit for any purpose which you either expressly or by implication, make known to the supplier and might reasonably be expected to achieve any result you have made known to the supplier; and
iii. are supplied within a reasonable time (when no time is set).
b. Permitted exclusion: However, the CCA permits a supplier of recreational services to ask you to accept some limitations on those statutory guarantees. Accordingly, to the extent permitted by section 139A of the CCA, you acknowledge and agree that we exclude all liability to you for death or injury resulting from a failure by us to comply with any statutory guarantee.
42. In the previous clause, “injury” means;
a. physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
b. the contraction, aggravation or acceleration of a disease; or
c. the coming into existence, the aggravation, acceleration or recurrence of any condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to you that is or may be harmful or disadvantageous to you or the community, or that may result in harm or disadvantage to you or the community.
d. Reckless conduct: This exclusion of liability does not apply if you have suffered any significant personal injury that is caused by our reckless conduct (within the meaning given to those terms by the CCA).
RISK WARNINGS
43. You acknowledge and agree that there are inherent risks in undertaking exercise and sports activities and that whilst using the Facilities under this Agreement you will be at risk of death or personal injury including broken bones, soft tissue injuries (including injuries to muscles, tendons, ligaments, fascia (connective tissue), nerves, fibrous tissue and blood vessels), joint injuries, heart, lung and breathing problems due to:
a. known or latent health problems or previous injuries;
b. engaging in exercise or activities which are too strenuous for your level of fitness or strength;
c. failing to warm up before exercise;
d. incorrect use of equipment or Facilities;
e. being struck by weights;
f. weights or other equipment being dropped;
g. tripping and slipping on or over equipment;
h. colliding with equipment or other members;
i. slipping on wet or polished surfaces in a Facility, around a swimming pool or in changing rooms, shower and hand washing and other wet areas;
j. Running or rushing around a swimming pool;
k. striking parts of the body or head on the hard surfaces in or around a swimming pool including whilst slipping, jumping or diving in, or getting out of the pool;
l. colliding with or being struck by another person in or around the swimming pool; and
m. attempting activity in a swimming pool which is beyond your swimming or other exercise capability (such as going out of your depth or removing floatation devices if you are a novice or non-swimmer).
GENERAL EXCLUSIONS
44. Please note that nothing in this Agreement excludes, restricts or modifies any term, condition, warranty, guarantee, right or remedy (including under a statutory guarantee) which cannot lawfully be excluded, restricted or modified.
45. Otherwise, and except as expressly included in this Agreement, all implied terms, conditions, warranties, rights or other additional obligations that can be lawfully excluded are excluded from this Agreement. In particular, but subject to the preceding clause, we are not liable for:
a. negligence; or
b. breach of terms implied that services will be provided with reasonable care and skill that in either case results in your death or injury (as defined in clause 40 above) in connection with or under this Agreement, but to avoid doubt we do not exclude liability for our reckless conduct.
46. For the avoidance of doubt, to the extent permitted by section 5N of the Civil Liability Act 2002 CLA you release us from any express or implied warranty that recreational services supplied under this Agreement will be rendered with reasonable care and skill.
47. You release us from any responsibility or legal liability associated with your presence or participation in any activity carried out at any Facility.
LOSS OF PROPERTY
48. You promise that you will not unnecessarily bring valuables in to the Facilities and that if lockers are available you will use the lockers to store any valuable property that you bring with you. If we provide secure storage lockers, then this is part of our service to you. However, we are not responsible if someone breaks into your locker and takes your property, other than to the extent we have not complied with our obligations in respect of this service under a statutory guarantee.
49. Other than as described above, maintaining the security of unattended property in the facility is not part of the service we provide under this Agreement. Accordingly, if you choose not to use a locker to securely store your property and leave it unattended in the Facilities, we will not be responsible for any loss or damage to your property that occurs.
YOUR RESPONSIBILITY FOR DAMAGE
50. You agree to pay for any damage to the Facilities caused by you or your guests through a willful act or negligence.
GENERAL LEGAL TERMS
51. Unexpected events
We are not liable if you cannot use your Membership due to anything beyond our reasonable control. If that failure or delay continues for more than 30 days, then either you or we can cancel this Agreement with immediate effect by telling the other in writing. We are entitled to make part or all of the Facilities unavailable for up to two weeks during each calendar year to undertake maintenance, repairs or improvements, in which case we will extend your Membership by the time you are unable to use the Facilities.
52. Our logo and intellectual property
No rights in relation to our logo, trademarks or any other intellectual property rights associated with our business, techniques, exercise programs or classes are granted to you under this Agreement, except that any exercise program created for you may be used while you are a member for the purpose of your exercise activities.
53. Transferring this Agreement
This Agreement is personal to you and cannot be transferred or assigned. We can transfer the rights or benefits under this Agreement or sub- contract our obligations under this Agreement to a third party at any time without notice to you but in doing so we will make sure that the transferee agrees to honour the terms of your Membership.
54. Severability and waiver
If a court finds that any part of any term 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 on future occasions.
55. Applicable law
The law of New South Wales applies to this Agreement.
56. Re-activation
Re-activation of a terminated membership constitutes a new membership contract from the date of re-activation and will be deemed to have a Minimum Term of three (3) months.
57. Complete Fitness Membership
One (1) month Complete Fitness Membership does not include child minding, suspensions, fitness assessments and programs.
58. Complete Corporate Membership
A membership available to businesses and organisations. To be eligible, a minimum of five
(5) memberships must be maintained. Additional memberships can be purchased at a pro- rata rate. Membership suspensions and refunds are not available.
PAYMENTS
59. Direct Debit Terms and Conditions
a. Council has entered into an Agreement with DebitSuccess to process all direct debit periodical payments
b. You can nominate any bank account or credit card, excluding AMEX/Diners
c. Member payments commence on the start date nominated on the direct debit request form for the amount indicated and at the frequency specified.
d. We will not charge you any fees for this service, however if your payment fails we may charge you the current failed payment fee
e. We ask that you commit to a 3 month minimum period before being eligible to cancel your Membership. The minimum period of 3 months or part thereof may be waived due to extenuating circumstances
f. Membership cancellations must be in writing. Cancellations over the phone will not be accepted
g. You may apply for a temporary suspension for your direct debit Membership by completing a membership alteration form at reception. We will freeze any direct debit payments that fall within the suspension period. Suspension must be in monthly increments with the maximum of 3 months in any 12 month period
h. Membership fees are reviewed annually and may be subject to change. You will be advised in writing of any changes within 30 days. Where we have done so, you authorise us to charge any debits from your nominated account.
INTERPRETATION
60. Where any of the following words are used in this Agreement, they are to have the corresponding meaning, unless the context requires otherwise:
Agreement
means this document, including all Terms.
Council / us / we
means Shoalhaven City Council and includes its employees and agents.
Cancellation Fee
means a fee calculated in accordance with clause 31.
Facility
Means one or all Shoalhaven Swim & Fitness facilities located throughout the Shoalhaven, including Bay & Basin Leisure Centre, Bomaderry Aquatic Centre, Ulladulla Leisure Centre, Sussex Inlet Aquatic Centre and Nowra Aquatic Park, without limitation.
Member/you
means the person whose details are set out in section 1 of this Agreement.
Minimum Term
means any nominated membership duration selected by the Member on page 1 of this Agreement under section 2 ‘Membership Type’.
Outside Providers
means franchisees, contractors and other authorised persons who provide services at the Facilities.
Patron Behaviour Guidelines
means the document entitled ‘Patron Behaviour Guidelines’ attached to this Agreement and forming part of the Agreement
Rules
means the rules outlined in clause 2.1 of the Patron Behaviour Guidelines as amended from time to time.
Start Date
means the date specified at the top of page 1 of this Agreement.
Term
means a term of this Agreement.