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Headstrong Gym Terms and Conditions

Risk Warning: Your participation in the Membership Services may expose you to the risk of death, physical harm or personal injury. The risk of death, physical harm or personal injury may arise from, but is not limited to, third-party participants, your physical fitness level, tiredness or overexertion, strenuous exercises, your training technique, equipment supplied by us or any failure to comply with our instructions or directions. You acknowledge and agree that death, physical harm or personal injury may arise from your or another party’s acts, omissions or negligence. You understand and voluntarily accept any risk arising from participating in the Membership Services.

• Our Disclosures

• Introduction
  • These terms and conditions are entered into between HeadStrong Gym Pty Ltd (ACN 666 495 110) (we, us or our) and you, together the Parties and each a Party.
  • In these terms, you means the person registering for a membership with us, as named in the Membership Application Form.
  • These terms, together with the Membership Application Form, HeadStrong Fitness Waiver and the House Rules make up the terms of your membership with us (Terms).
  • Your membership (Membership) includes the features and facility access as set out in your Membership Application Form (Membership Services).
• Acceptance
  • You accept these Terms by signing and returning any component of these Terms to us, including the Membership Application Form.
  • You must be at least 18 years old to access the Membership Services.
  • We may amend these Terms, including what is available as part of your Membership (for example, the inclusions, exclusions, updated features) or the Fees, from time to time, by providing 30 days’ written notice to you. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Membership with effect from the date of the change in these Terms by providing written notice to us. If you cancel your membership, (a) you will no longer be able to access the Membership Services on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
• Membership Services
  • In consideration for your payment of the Fees, we agree to provide the Membership Services, whether ourselves or through our Personnel.
  • You acknowledge and agree that the provision of some, or all, of the Membership Services may be subject to availability or a screening process which you will be required to fulfil. We reserve the right to refrain from providing you the Membership Services if you fail to fulfil the requirements of the screening process.
  • We may, from time to time and in our sole discretion, introduce other membership services or offer additional services, including but not limited to coaching, personal training, and individual or group classes (Additional Services). We will determine the fee (if any), scope and conditions of any Additional Services in our discretion. You may engage us to provide the Additional Services by requesting a change to your Membership in accordance with clause 8.
• Price and Payment Terms
  • You agree to pay us the fees set out in your Membership Application Form (Fees).
  • You agree that we will deduct the Fees, and any other amount due and payable to us in accordance with this Agreement, from your nominated payment method on a recurring basis as selected in your Membership Application Form (Payment Terms).
  • The Fees for each Billing Cycle must be paid in full prior to the provision of the Membership Services via our third-party direct debit services, currently Stripe, unless otherwise agreed.
  • You authorise us to, in accordance with these Terms, automatically direct debit any amounts payable to us by you under these Terms from your chosen payment method.
  • You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. You agree to complete a direct debit request form and/or direct debit request service agreement (if and when required), which may be provided by us or by a third-party provider on our behalf.
  • You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.
  • Changes to your Membership:
• Our Intellectual Property
  • You acknowledge and agree that we own or license all Intellectual Property or content provided in relation to the Membership Services (Our Intellectual Property).
  • We authorise you to use Our Intellectual Property solely for your personal use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party. You may only access Our Intellectual Property on your personal device, and you may not use Our Intellectual Property for any commercial purpose.
  • You must not, without our prior written consent:
• copy, in whole or in part, any of Our Intellectual Property;
• reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
• breach any intellectual property rights, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.
  • This clause will survive the termination or expiry of your Membership.
• Warranties
  • Despite anything to the contrary, to the maximum extent permitted by law, you acknowledge and agree that:
• your participation in the Membership Services may expose you to the risk of death, physical harm or personal injury. The risk of death, physical harm or personal injury may arise form, but is not limited to, third party participants, your physical fitness level, tiredness or overexertion, strenuous exercises, your training technique, equipment supplied by us or any failure to comply with our instructions or directions. You acknowledge and agree that death, physical harm or personal injury may arise from your or another party’s acts, omissions or negligence. You understand and voluntarily accept any risk that may arise from your participation in the Membership Services;
• in the event that you become aware at any time of any medical, physical or psychological condition, injury or impairment that may be detrimental to your health or affect your proper and safe use of the Membership Services, you must immediately notify us, cease to use the Membership Services and contact your medical providers;
• you are solely responsible for determining the suitability of any Membership Services, and your reliance on any information that is provided to you is at your own risk; and
• the HeadStrong Fitness Waiver provided to you forms part of these Terms.
  • You represent, warrant and agree that:
• there are no legal restrictions preventing you from entering into these Terms;
• you will observe and comply with the House Rules at all times during your receipt of the Membership Services;
• you will be provided with a digital access card to access the Premises and enjoy the Membership Services (Digital Access Card). This Digital Access Card remains our property, and you agree to pay our costs of providing you with a replacement if your Digital Access Card is lost or stolen;
• you will cooperate with us, and provide us with information and instructions that are reasonably necessary to enable us to provide the Membership Services, as requested by us from time to time, and will comply with these requests in a timely manner;
• any information you provide to us in connection with these Terms or the Membership Services is true, correct and complete;
• you will not use the Membership 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 or our Personnel;
• where you are aware of or become aware of any physical or medical conditions that prevents you or may prevent you from participating in your chosen Membership Services, you will inform us and either:
  1. you will not participate in those Membership Services; or
  2. you have received consent from a medical professional to participate in those Membership Services, and you will provide us with proof of such consent upon request;
• you will follow our reasonable instructions at all times;
• the Membership Services are provided solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Membership Services to third parties without our prior written consent; and
• that any information, advice, material, work and services (including the Membership Services) provided by us under these Terms does not constitute medical advice.
• Australian Consumer Law
  • Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Membership Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
  • If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Membership Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
  • Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Membership Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
  • This clause will survive the termination or expiry of your Membership.
• Liability – Recreational Activities

Warning Under the Australian Consumer Law

• By accepting these Terms, you agree that you have read the risk warning on the front page of these Terms and at clause 1(a), and you are aware that the Membership Services are a recreational service (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law), or a dangerous recreational activity (as that term is defined in the Civil Liability Act 2002 (NSW), and carry inherent risk. You acknowledge and accept that there is a degree of risk in participating in the Membership Services, and your participation in the Membership Services is at your own risk.
• Despite anything to the contrary, to the maximum extent permitted by law, you acknowledge and agree that we will not be liable for, and you agree to waive and release us, any affiliates and all parties associated with organising and delivering the Membership Services (including our Personnel), from any Liability arising from or in connection with the Membership Services in so far as they are a dangerous recreational activity or a recreational service.
• For the avoidance of doubt, you agree to release us from any Liability and waive any claims for:

• death;
• physical or mental injury (including aggravation, acceleration or recurrence of such injury);
• the contraction, aggravation or acceleration of a disease; or
• the coming into existence of any other condition, circumstances, occurrence, activity, form of behaviour, course of conduct, or state of affairs in relation to you, that
  1. is or may be harmful or disadvantageous to you or the community; or
  2. may result in harm or disadvantage to you or the community,

arising from or in connection with the dangerous recreational activity or recreational services, including your participation in the Membership Services.

• This release does not apply to significant personal injury caused by reckless conduct by HeadStrong Gym Pty Ltd or its Personnel.
• This clause 9 will survive the termination or expiry of these Terms.

• Limitations on Liability
  • Despite anything to the contrary, but subject to your Consumer Law Rights:
• you agree that these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are expressed in these Terms;
• we will have no Liability, and you waive and release us from all Liability, arising from or in connection with:

9. the Membership Services to the extent they are a dangerous recreational activity or recreational service (as these terms are defined in clause 9.1;
10. any loss, theft or damage to your property (including personal items);

• any negligent acts or omissions of you or any third party, including any third party that you allow onto the Premises or to use any part of the Membership Services and/or any other member or user of the Premises; and/or

1. the lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Membership Services;

• neither Party will be liable for Consequential Loss;
• each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and
• our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).
  • This clause 10 will survive the termination or expiry of your Membership.
• Termination
  • Subject to each Party’s right to terminate these Terms, your Membership will operate for the period set out in your selected Membership Plan and as set out in your Membership Application Form (Initial Term). On the expiry of the Initial Term, your Membership will be automatically renewed for subsequent periods in accordance with your selected Membership Plan, as set out in your Membership Application Form (each a Renewal Period), unless either Party provides written notice in accordance with the relevant Membership Plan (as applicable) that it does not wish to renew the Membership.
  • Cancellation of Memberships: You may request to cancel your Membership at any time by providing us with notice in accordance with the Cancellation and notice period (as set out in Attachment 2) corresponding to your Membership Plan (Cancellation Notice). Upon receipt of your Cancellation Notice we may, in our sole discretion, acting reasonably, cancel your Membership in accordance with the relevant Cancellation and notice period (as set out in Attachment 2). If you cancel your membership, (a) you will no longer be able to access the Membership Services on and from the date of cancellation, and (b) the terms as set out in the relevant Membership Plan will apply to your cancellation of your Membership..
  • A Membership will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
• the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
• the Defaulting Party is unable to pay its debts as they fall due.
  • Should we suspect that you are in breach of these Terms, we may suspend your access to the Membership Services while we investigate the suspected breach.
  • Upon expiry or termination of your Membership:
• we will remove your access to the Membership Services;
• you agree to return to us, any property belonging to us that is in your possession, including your Digital Access Card; and
• where we terminate your Membership as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.
  • Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.
  • Termination of a Membership will not affect any rights or liabilities that a Party has accrued under these Terms.
  • This clause will survive the termination or expiry of your Membership.
• Collection Notice
  • We collect Personal Information about you in order to provide the Membership Services to you, to enable you to access and use the Membership Services, to monitor your progress, to contact and communicate with you and to respond to your enquiries and for other purposes set out in our Privacy Policy.
  • We may disclose that Personal Information to third party service providers who help us deliver our Membership Services (including our information technology service providers, data storage, web-hosting and server providers, professional advisors, debt collectors, payment systems operators and our business partners) or as required by law. If you do not provide this information, we may not be able to provide our services to you. In certain circumstances, we may disclose your Personal Information to third parties located, or who store data, outside Australia.
  • Our Privacy Policy contains further information about how we store and use your Personal Information; how you can access and seek correction of your Personal Information; how you can make a privacy-related complaint; and our complaint handling process.
  • By providing your Personal Information to us, you acknowledge and agree that we will collect, hold, use and disclose your Personal Information in accordance with our Privacy Policy.
• General
  • Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
  • Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
  • Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
  • Entire Terms: Subject to your Consumer Law Rights, these Terms contain the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
  • Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavors to minimize the duration and adverse consequences of the Force Majeure Event.
  • Governing law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. 
  • Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
  • Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines. We will handle your Personal Information in accordance with our Privacy Policy.
  • Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
• Definitions
  • Billing Cycle means the recurring interval on which your Fees will be deducted in accordance with the Payment Terms, as agreed with you in your Membership Application Form.
  • Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.
  • Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
  • HeadStrong Fitness Waiver means our fitness waiver provided to you at the time of signing up to the Membership Services.
  • House Rules means our house rules contained as Attachment 1 to these Terms.
  • Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
  • Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
  • Membership Application Form means the form completed by you, whether online or in hardcopy, to purchase a Membership with us.
  • Membership Plan means the relevant membership plan, as set out in Attachment 2 to these Terms.
  • Personal Information has the meaning given in the Privacy Act 1988 (Cth).
  • Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
  • Privacy Policy means our privacy policy available at [insert hyperlink].

For any questions or notices, please contact us at:

HeadStrong Gym Pty Ltd (ACN 666 495 110)

Email: headstronggym3025@gmail.com

Last update: 16/08/2023

© LegalVision ILP Pty Ltd

EXECUTION

Attachment 1 - HeadStrong Gym House Rules

You acknowledge and agree that you will, at all times:

• comply with these Terms, all applicable laws, and all of our reasonable requests or requirements at all times during the term of your Membership;
• scan your Digital Access Card to gain entry to the Premises. You acknowledge and agree that we may refuse your entry to the Premises if you attend without your digital access card;
• refrain from causing disruption to other members or other people in our facility;
• refrain from using a camera or any other recording device whilst on our Premises;
• refrain from providing any non-member with access to the facility or the Membership Services without our prior written consent;
• not be under the influence of alcohol or drugs when in our facility or when participating in the Membership Services;
• not engage in reckless, foolish or negligent behaviour, or any other behaviour, which may, in our reasonably opinion, create a risk of injury to you or a third party;
• respect all Personnel, fellow members, equipment and facilities and ensure you leave equipment as you found it;
• wear suitable clothing at all times when using the Membership Services;
• bring and use a towel at all times when using the Membership Services;
• remain solely responsible for all and any activities that you undertake through the use of the Membership Services; and
• observe any applicable house rules or conditions that are introduced or otherwise communicated by us, from time to time.

 Attachment 2 – Membership Plans