PO Box 2052, KARDINYA WA 6163

Privacy Policy

Membership Agreement

Important notice

This is an Agreement under which you agree to become a Member of our Clinic. It is made up of this Important Notice, the Details section, the attached Terms and any other document attached or referred to, including our Clinic Rules and our privacy policy.

When you sign this Agreement you are entering into a legally binding contract with us.

This Agreement sets out your rights to use our Facilities and Services and the responsibilities you have to comply with as a Member. These responsibilities, including payment of Membership Fees, do not depend on how often you use our Facilities and Services. What is set out in this Agreement overrides any statements made by you or us before you signed it so you should read through it fully to make sure it reflects your expectations. If you are unsure whether any particular statements that you have relied on are part of this Agreement, or if you have any queries regarding this Agreement, please ask us before you sign.

 

Direct debit information

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.

 

Summary of key terms

Some of the key terms of this Agreement are summarised below. You must refer to the noted clause or provision for full details:

Your Safety: You agree to give us all relevant health and fitness information before or during any exercise. Each time you use the Facilities and Services, you must ensure you are in good physical condition and know of no medical or other reason why you should not exercise. If unsure, you should seek medical guidance (see clause 5).

Access and Reciprocity: When you join our Clinic you can access and use our Clinic and our Facilities and Services.

Membership Transfer and Assignment of this Agreement: As a broad rule, if you use another Clinic more than our Clinic, (using the criteria set out in this Agreement) your Membership and this Agreement will be transferred from our Clinic to the Clinic you visit the most. If this happens, the Fees, including your Membership Fees, may change (see clause 8).

Putting Your Membership On Hold: In any 12 month period you can usually ‘freeze’ your Agreement twice for up to 3 months for both periods combined. If we agree, you may freeze your Agreement more than this time for travel, medical or hardship reasons but must give us proof. The minimum freeze period is one billing period.

Not Enough Money in Account When Fees Are Due: Your bank or credit provider may charge you a fee for overdrawing your account. Our third-party Biller also charges the Biller’s Administration Fee. (see the Details and clause 13).

 

Terms

  1. DEFINITIONS

Agreement: this Agreement as described in the Important Notice.

Heart Health and Fitness: Heart Health and Fitness Pty Ltd, ACN 622 959 719

ACL: means the Australian Consumer Law in the CCA.

Biller: Our third party biller, Stripe.

CCA: the Competition and Consumer Act 2010 (Cth).

Clinic: a Heart Health and Fitness clinic.

Clinic Rules: the rules that are referred to in clause 5.6.

Details: the part of this Agreement described as the “Details”.

Direct Debit Amount: what you agree to pay by direct debit each Direct Debit Payment Period as set out in the Details.

Direct Debit Payment Agreement: the periodic billing agreement you enter into with our third party Biller for periodic billing services.

Direct Debit Payment Period: 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. If there is a disagreement as to whether a term is an Essential Term, the matter will be reasonably determined by Heart Health and Fitness.

Facilities and Services: includes Clinic premises and all exercise areas, bathrooms, equipment, weights, benches, machines, mats and any programs, products, classes and services that you may use (excluding services referred to in clause 14).

Fees: fees that apply under this Agreement as set out in the Details and referred to in clause 12.

Guest Fee: the Fee payable under clause 5.5 as set out in the Details.

Important Notice: the part of this Agreement described as this.

Member: a Clinic member.

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 12 and set out in the Details.

Minimum Age: the minimum age to become a Member and use the Facilities and Services and referred to in clause 4.

Pre-Exercise Questionnaire: the questionnaire or other screening we may require you to answer before using the Facilities and Services.

Pro Rata Fee: the Fee/s that may be applicable under clause 12.3 and set out in the Details.

Start Date: when this Agreement starts as set out in the Details.

Staffed Hours: the times a Clinic is staffed. These times may not be fixed and will also vary from Clinic to Clinic.

Tailgate Fee: the Fee you will be charged if you allow another person to access a Clinic without permission.

Terms: the part of this Agreement described as the “Terms”.

 

  1. JOINING, ACCESS AND RECIPROCITY

2.1 When you join our Clinic, you will need to give us information noted in the Details and provide us with photographic identification. If you join under a particular offer, such as a corporate offer, you will also need to give us proof that you are eligible for that offer.

2.2 After the first 31 days, you will also be able to access and use all other Clinics under the provisions of this Agreement provided that you continue to be a Member and your Membership has not been suspended.

 

  1. COOLING OFF

3.1 If you change your mind after joining, you have 7 days to cool off or cancel your Membership starting on the Start Date. To be effective, you must let us know in writing at any time during this 7 day cooling off period. Your written cancellation can be given to us personally, by post or by e mail.

3.2 If you cancel your Membership under clause 3.1, we will charge you for any services or products already supplied but the Membership Fees will be refunded.

 

  1. MINIMUM AGE

4.1 For safety and security reasons you must be at least 18 years old to become a Member.

 

  1. HEALTH AND SAFETY AND ACCEPTABLE CONDUCT

5.1 Your physical condition

  1. When you sign this Agreement and each time you use the Facilities and Services, you must ensure you are in good physical condition and know of no medical or other reason why you should not exercise. If unsure, you should not use the Facilities and Services until you have sought appropriate medical guidance and been given the go-ahead.
  2. You agree to give us all relevant personal health and fitness information both before and during the course of any exercise program or other activity. You also agree to complete our Pre-Exercise Questionnaire. In some cases, responses you give will require that you get medical guidance before exercising. You acknowledge that pre-exercise or other screening is no substitute for medical advice and does not guarantee against injury or death.
  3. You promise that information you give us will be true and accurate and not misleading in any way.
  4. You must not use the Facilities and Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health or safety or that of other Members and others.
  5. We may suspend or cancel your Membership if we have reason to suspect that you have not complied with clause 5.1.

5.2 Orientation

You may be required to participate in a Member orientation to familiarise you with the Facilities and Services before you use them.

5.3 Proper use of equipment

You promise to take care to use the Facilities and Services safely and properly. If you are ever not sure how to operate any equipment properly, you agree to ask Clinic staff first.

5.4 Guests

You may bring a guest into a Clinic but only if they register with Clinic staff, pay a Guest Fee and meet our other reasonable conditions. For example, they will need to be the Minimum Age, show photo ID, complete the Pre-Exercise Questionnaire and other standard forms.

5.5 Clinic Rules

  1. Clinic Rules apply to everyone using the Facilities and Services. They are usually displayed in the Clinic.
  2. Clinic Rules form part of this Agreement so you must make sure you read, understand and follow them at all times.
  3. If you break any of the Clinic Rules we will respond in a way we consider fair and appropriate. For example, in less serious cases, we may give you a warning but in serious cases or where you have repeatedly broken Clinic Rules we may suspend or cancel your Membership. If your breach causes us or another person costs, loss or damages, you agree to pay for these.

5.6 Illegal performance enhancing or other illicit substances

You acknowledge that the distribution or use of illegal or performance enhancing drugs is prohibited and promise that you will not use or distribute these substances in or near a Clinic.

5.7 Commercial activity

You acknowledge that engaging in any commercial or business activities in the Clinic, such as offering training services or selling goods in the Clinic is prohibited unless we grant you written permission to do so. If we do give you written permission, we can revoke this at any time.

5.8 Action for risky or inappropriate conduct

If you behave in a risky or seriously inappropriate way, for example, if you threaten or harass others, damage equipment, distribute or use illicit substances, or train other Members without our authorisation, appropriate action will be taken. For example, your Membership may be immediately suspended or cancelled (with a Cancellation Fee potentially applying), you may be banned from joining any Clinic and/or we may refer the matter to appropriate authorities. If your conduct causes us or another person costs, loss or damages you agree to pay for these.

 

  1. SECURITY

6.1 24 Hour CCTV cameras

Clinic premises have CCTV security cameras recording 24-hours a day (except in bathrooms) and may have remote video guarding services. This system is used for security purposes but does not guarantee against harm. You should contact the Clinic if you have questions on this.

6.2 Emergencies

  1. Clinics have an emergency phone, automated external defibrillator and first aid kit for safety and security reasons and to alert first responders (call 000) in emergencies, for example, if you are, or feel, threatened or need medical help. You must understand how emergency apparatus works and agree to use it only in an emergency.
  2. If you deliberately use emergency apparatus inappropriately, you agree to pay for any costs, loss or damages incurred because of this inappropriate use.
  3. Clinics may also have an emergency or crisis response procedure displayed which must be followed in emergencies.

6.3 Be cautious

You must be cautious when entering, leaving a Clinic and using the Clinic.

6.4 Following Directions

You agree to follow any reasonable direction of Clinic staff relating to health, safety or security matters or related matters.

 

  1. PRIVACY

7.1 Your personal information

From when you apply for Membership, you will need to provide us with, and we will have access to personal information about you, including information relating to your health and finances. Your personal information may be:

  1. transferred to and stored out of Australia, including to a country that does not have the same level of privacy protection as Australia; and
  2. disclosed to and used by other Clinics, for the purpose of allowing you access to Clinics and providing services to you (for example so that we can confirm your Membership if you visit our other facilities).

7.2 General consent

By signing this Agreement, you consent to us collecting, using, disclosing and dealing with your personal information in accordance with our privacy policy. In particular, you consent to the transfer and storage of your personal information outside Australia, and to the disclosure and use of your personal information to other Clinics inside Australia. You can access our privacy policy at

Privacy Policy

7.3 Up to date contact information

You must tell us promptly if you change your contact or payment details or if there is a change to other relevant personal information, including anything that may affect health or safety.

7.4 Consent to use your image

You understand that photos, films, videos or audio recordings are sometimes taken of Members for promotional purposes. Your permission will first be obtained if this is done. By signing this Agreement, you agree to allow your image, recording or likeness to be used for any legitimate purpose by us or by Heart Health and Fitness and you assign your rights in any of these materials to Heart Health and Fitness.

7.5 Other

  1. As noted in clause 6.1, CCTV camera recording is used in Clinics (except in bathrooms).
  2. Members and guests are not allowed to take photos and/or videos in Clinics unless specific permission is granted by the Clinic.

 

  1. TRANSFER

8.1 Your Membership may be transferred to another Clinic if:

  1. over 2 consecutive 30 day periods you use another Clinic a minimum of 4 times in

each period AND use that Clinic at least 50% of the time in each period; OR

  1. over 3 consecutive 30 day periods, you use another Clinic at least once in each of

these periods, and 100% of your visits are at the other Clinic.

8.2 If your Membership is transferred to another Clinic, your Fees, including any ongoing Membership Fees, may be varied to reflect the Fees applicable in the other Clinic.

8.3 If your Membership is transferred to another Clinic in another state, you may be required to sign a new Agreement compliant with the laws of that state.

8.4 Your Membership can not be transferred to another person.

8.5 If our transfer policy (in clause 8.1) is changed, we will use our reasonable efforts to give Members prior notice of the change.

 

  1. PUTTING YOUR MEMBERSHIP ON HOLD

9.1 You may temporarily suspend or freeze your Membership for any reason if your account is up to date and, if you have a Fixed Term Agreement, it has more than 2 weeks left. In any 12 month period you may freeze your Membership 2 times for up to 3 months for both periods combined.

9.2 We may agree to freeze your Membership for more than the period noted in clause 9.1 for travel, medical or hardship reasons but you must give us proof (such as supporting documents) to our reasonable satisfaction.

 

  1. WHEN YOU CAN END THIS AGREEMENT

10.1 Notice

If you need to notify or tell us anything in writing under this clause:

  1. you can give this to us in person, by e mail or post;
  2. it would be useful (but not required) if you complete any standard documentation we may have such as a cancellation form and provide your Membership number (if you know it);
  3. if you do not use our standard documentation, your notice must include your name, Clinic, address, phone, email, ID details and signature and explain why you wish to cancel; and
  4. you must also attach any required proof such as a medical certificate.

10.2 Cancelling for medical reasons

  1. You can cancel your Membership at any time by telling us in writing if you cannot use the Facilities and Services because you contract a serious illness or a permanent physical incapacity during the term of your Membership. This must be confirmed in writing by a doctor or other medical professional we reasonably agree to and you agree that we may contact the doctor or other professional for verification purposes.

 

  1. WHEN WE CAN END THIS AGREEMENT

11.1 In addition to our other rights under this Agreement, we may cancel your Membership if you breach any obligation under this Agreement that can’t be fixed or if you breach an obligation that can be fixed but you do not fix it in a reasonable time.

11.2 If we cancel your Membership under clause 11.1, 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) and Fees for services already supplied. We may also charge a Cancellation Fee and recover costs, loss or damages caused by your breach.

11.3 You promise you are not bankrupt or insolvent and are able to pay applicable Fees at the time of signing. You agree that you will tell us promptly if you believe you will be unable to pay your Membership Fees for an extended period. We may cancel your Membership if you become bankrupt or insolvent.

11.4 If we cancel your Membership under clause 11.3 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) and Fees for services already supplied.

 

  1. FEES

12.1 General

  1. The Fees you have to pay are set out in the Details. Some rights and obligations that apply in relation to particular Fees are set out in this clause.
  2. If you do not make any payment when it is due, your Membership may be suspended and you could be refused access to Clinics and to Facilities and Services until all outstanding amounts have been paid.
  3. 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.

12.2 Pro-Rata Fee

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 have a Fixed Term Agreement and the Direct Debit Payment Period ends after the last day of the Agreement.

12.3 Membership Fees

  1. If this is a Fixed Term Agreement you can pre-pay your Membership Fees (pay them up front) when you sign this Agreement, or you can elect to pay by equal periodic instalments provided this option is available in our Clinic.
  2. If this is an Ongoing Agreement, you must pay Membership Fees periodically in advance until your Agreement ends.

12.4 Cancellation Fee

A Cancellation Fee may (at our reasonable discretion) also be payable by you if your Membership is ended by us under clause 5.9, clause 11.1 or clause 12.1(c).

12.5 If you do not pay a Fee when due

  1. If you do not pay a Fee or other amount you owe when due, we can suspend your Membership until all amounts have been paid. This is in addition to our other rights under this Agreement, including those under clause 11.1. Other consequences may also apply with respect to late or rejected direct debit payments (see clause 13.3).
  2. Fees and charges continue to accrue during a suspension under clause 12.7(a).

12.6 Fee increases

  1. If your Membership is transferred to another Clinic, your Membership Fees (and other Fees) may be varied to reflect those which are applicable at the other Clinic even if your Membership is transferred in the Minimum Term.
  2. We will make reasonable efforts to tell you of any Fee changes.
  3. If your Fees are varied, you authorise any debits from your nominated account to also be varied.

12.7 Refunds and the Credit Code

We can deduct all Fees and charges that you must pay under this Agreement from any refund we give you.

 

  1. DIRECT DEBIT

13.1 Direct Debit Payment Agreement

  1. If you pay any Fees, including ongoing Membership Fees, by direct debit, then this will be through our Biller (not us).
  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.

13.2 Authority to deduct Fees

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.

13.3 Late or rejected direct debit payments (Also see clause 12.7)

  1. You must ensure there is enough money in your nominated account on the usual payment, or the next working day if that falls on a day when banks do not process payments.
  2. If there is not enough money in your nominated account on the usual payment day, or there is another reason that your account was unable to be debited (except one within the Biller’s control), you will be charged the Biller’s Administration Fee. This will be added to your next debit amount. Prior arrears may also be included.
  3. You authorise our Biller to deduct any unpaid arrears outstanding on your account.
  4. Your bank or credit provider may charge you a fee for overdrawing your account if you do not have enough money in your account when payment is due.

 

  1. OTHER SERVICES

14.1 There may be other services, including personal training services, offered at Clinic by us, contractors, licensees and others which are offered separately and/or in addition to services provided under this Agreement. You will need to pay applicable fees directly to the providers of the services and agree to separate terms and conditions.

14.2 We are not responsible for these third party provided services including fees or any associated costs claims or refunds, unless they are provided by us.

 

  1. CHANGES TO YOUR AGREEMENT

15.1 We may sometimes make changes to this Agreement, including our Clinic Rules. If we do this, we will try to do this fairly and by giving you a chance to cancel your Membership if you are adversely affected by the change and do not agree to it.

15.2 We will make reasonable efforts to tell you of any change in advance and when it will take effect. Subject to other Terms, the effective date will generally be at least 30 days from the date we tell you about the change unless it is not practical for us to tell you at this time. Your Membership will be amended from the effective date.

15.3 You cannot cancel under this clause in the case of a transfer of your Membership or if we have to make the change to comply with a law or a direction of a relevant authority.

 

  1. OUR LIABILITY TO YOU

16.1 Statutory guarantees

  1. Under the ACL we guarantee that the services we supply:
  2. are provided with due care and skill;
  3. are reasonably fit for any purpose you have told us you are using the services for or told us you wish to achieve; and/or

iii. are supplied in a reasonable time.

  1. Under certain legislative provisions, however, we can ask you to accept some limitations to the ACL guarantees.
  2. 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.
  3. This exclusion does not apply if your death or injury is caused by our “reckless conduct” (as defined in the CCA).

16.2 Other implied terms

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 16.1 and 16.2, 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.

16.3 Loss of property

You promise not to unnecessarily bring valuables into a Clinic and agree that it is not the obligation of the Clinic to look after unattended property.

 

  1. YOUR RESPONSIBILITY FOR DAMAGE

You agree to pay for any loss or damage to the Clinic or the Facilities and Services caused by you or your guests through a wilful, wrongful or negligent act or as a result of your, or their, breach of this Agreement.

 

  1. CLINIC CLOSURES
  2. We may need to close our Clinic for a period of time, for example, due to an emergency, or if required by a court order or by law.
  3. We may close our Clinic up to 14 days in any 30 day period under clause 18(a) and keep charging Membership Fees.
  4. If we close the Clinic for between 15 and 30 days under clause 18(a) in any 30 day period, clause 18(e) applies.
  5. We may also close the Clinic for up to 30 consecutive days if it is being refurbished or relocated.
  6. If we close the Clinic under clause 18(c) or 18(d) we may keep charging Membership Fees if you are able and willing to use another Clinic. If you are not able or willing to use another Clinic we will freeze your Membership at no cost to you and extend your Agreement for a time equal to the closed period.
  7. We will try, but cannot promise we will be able, to tell you about any Clinic closures in advance.

 

  1. COMPLAINTS AND FEEDBACK

19.1 If you have any concerns about the Facilities and Services or anything else in relation to your Membership, you should first raise it with Clinic staff.

19.2 If you are uncomfortable about approaching, or do not wish to approach Clinic staff, or are not happy with the response given, you may send a complaint to the head office of Heart Health and Fitness by e mail to [email protected]

19.3 Complaints will be dealt with in accordance with the Heart Health and Fitness’ complaints policy.

 

  1. GENERAL LEGAL MATTERS

20.1 Unexpected events

We are not responsible if Members cannot use our Clinic because of an event caused by a natural force (such as a fire or a flood) or a road or building closure or something similar beyond our reasonable control. If this continues for more than 30 days, then either you or we may cancel this Agreement immediately by written notice. No Fee will apply.

20.2 Severability

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.

20.3 Waiver

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.

20.4 Entire agreement

You agree that we have not made any representations or promises that you have relied that are not in this Agreement.

20.5 Applicable law

The law of the state/territory set out in the Details applies to this Agreement.