Bace Membership Terms and Conditions

 

Background

 

I acknowledge that unless I provide written notice of termination of my membership prior to the end of the fixed/minimum term of my ongoing agreement, I will still be liable for my membership fees for the minimum term and for 4 weeks after I provide written notice of termination to BACE MBS.

 

I understand that BACE MBS must respond to its receipt of a written notice within 7 days.

If your agreement is for a fixed term, it automatically terminates at the expiry of the term and so a new agreement will be required if you require services after that time. If your agreement is ongoing, it is an agreement that will continue after the minimum term until either you or we terminate it in the way described in the agreement.

If an automatic direct debit arrangement is in place, fees will continue to be debited from your credit card or account until you or BACE MBS cancels the arrangement by notifying your bank or credit provider. If you terminate the agreement or stop the automatic debit arrangement in a manner not described in the agreement, then you may be liable for damages for breach of contract.

 

 

1.1 Definitions


In this Agreement, the following definitions apply: Agreement means:

(a)  these terms and conditions; and

(b)  the Details.

  1. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).


Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.


Classes means the fitness classes operated by BACE MBS, as notified to you from time to time.


Cooling-Off Period means the 48-hours period following your execution of this Agreement.


Commencement Date means the date stipulated in the Details.


Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the date of execution as a likely result of breach of this Agreement:

(a)  incidental, special, remote or unforeseeable loss or

damage;

(b)  loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, or loss caused by business interruption, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;

(c)  costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d)  loss or damage of the nature set out above in clauses (a) and (c) (inclusive) that is incurred or suffered by or to a third party.

Details means the details relating to your Minor's membership and labelled as such.

Direct Debit Agent GLOFOX, Using GOCARDLESS Fee means the fee payable by you to us for the Services,

specified in the Details.

Gym means the gym premises specified in the Details and includes all facilities.


Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to these events.

Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.


Membership Details means the details relating to your membership and labelled as such.


Minimum Term means 12 weeks from the Commencement Date.


Minor means the person under the age of 18 participating in the Classes at the Gym, as specified in the Details.

 

Non-Attendance Fee means $5 per class. If people miss class due to your lack of turning up
 

Parent, you or your means the parent of the Minor participating in the Classes at the Gym, as specified in the Details.
Orientation Program means the health and safety program provided by us, covering topics including:

(a)  your or your Minor's use of the gym equipment;

(b)  an introduction to group fitness classes; and

(c)  your other health and safety obligations.

Pre-exercise Questionnaire means the questionnaire regarding your Minor's medical history, which is completed by you or your Minor on the Commencement Date.


Related Body Corporate has the meaning given to it in section 9 of the Corporations Act 2001 (Cth).
Representative means any person acting for or on behalf of a party and includes any director, officer, employee, agent, contractor or sub-contractor of the party.

Services means:

  1. (a)  health and fitness club membership services;

  2. (b)  one-on-one personal training;

  3. (c)  group training classes;

  4. (d)  nutritional advice services; and

  5. (e)  any incidental services that can be reasonably inferred as being necessary or appropriate to supply these services.

 

Suspension Fee means the fee you must pay to suspend this Agreement, specified in the Membership Details.

 

Term means the term of this Agreement as specified in the Details.

1.1 Interpretation


In this Agreement:

(a)  if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(b)  words such as including or for example do not limit the meaning of the words preceding them;

(c)  no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;

(d)  all monetary amounts are expressed in Australian Dollars ($AUD); and

(e)  parties must perform their obligations on the dates and times fixed by reference to Sydney, New South Wales.

Term

This Agreement commences on the Commencement Date and will continue for the Term, unless terminated in accordance with this Agreement.

Cooling-Off Period

You may terminate this Agreement without cause or reason during the Cooling-Off Period by emailing support@thebace.com.au

 

We will:

 

(a) provide the Services to you (or the Minor, as the case may be) in accordance with this Agreement; and

(b) great you access to the Gym for the Services.

 

Your obligations

(b)  understand and comply with our rules and health and safety requirements, as amended from time to time;

(c)  respect other BACE MBS members and Representatives, including not causing offence or injury to those people or causing damage to their property;

(d)  wear suitable fitness clothing when Training;

(e)  enter and leave the Gym without making unreasonable levels of noise or disruption;

(f)  cease Training in the event of injury;

(g)  not allow third parties, who are not members, to access the Gym;

(h)  comply with any reasonable directions of BACE MBS and its Representatives; and

(i)  notify us in writing if you believe that there is a risk to you or your Minor's health by participating in a Service at the Gym.

 

(a)  fully participate in the Orientation Program;

 

You must ensure that you (and the Minor, as applicable):

Classes

 

(b)  If you cannot attend a class that you have booked, you must cancel the class through Glofox:

(i)  if the class is before 10 am, at least 6 hours before the class is due to commence; or

(ii)  if the class is after 10 am, at least 4 hours before the class is due to commence.

 

(c)  If you do not cancel a class within the timeframes in clause 6(b), then you must pay the Non-Attendance Fee if people miss class due to full numbers.

 

(a)  If you wish to attend a class offered by BACE MBS, you must book the class through BACE MBS online booking system, Gloxfox

Closure

(a)  We may, with reasonable notice to you, temporarily suspend the Services (for example, for holidays, illness or other reasonable circumstances).

 

​(b)  If we suspend the Services in accordance with clause 7(a), we will also suspend the Fees for the period of the closure.

Fees

 

8.1  General

 

You must pay the first instalment of the Fees on the Commencement Date.

8.2  Change in Fees

We may increase the Fees at any time by giving you reasonable notice in writing.

8.3  GST - The Fees include GST.

8.4  Direct Debit Payments

(a)  You will pay the Fees using the direct debit service offered by the Direct Debit Agent (Direct Debit Payments).

(b)  You agree to pay any reasonable administration fees associated with setting up and facilitating the Direct Debit Payments. $1.50 weekly

(c)  You authorise the Direct Debit Agent to debit your nominated bank account or credit card for the fees payable by you to us.

(d)  You will notify the Direct Debit Agent of any changes to your payment details.

(e)  You are responsible for:

(i)  ensuring your nominated bank account has sufficient funds to meet the Direct Debit Payments; and

(ii)  paying all bank fees, including fees charged by your bank for an overdraw of your account as a result of a Direct Debit Payment.

 

 

8.5  Failure to pay

(a) If any Direct Debit Payment fails, you authorise the Direct Debit Agent to:

(i)  add the outstanding fees to the next Direct Debit Payment; or

(ii)  make additional Direct Debit Payments to recover the outstanding fees.

(b)  If any Direct Debit Payment fails, you will pay any reasonable administration fees, including any fees for the dishonoured direct debit. At the date of this Agreement, the dishonoured payment fee is $2.50.

 

(c)  If you default on a Direct Debit Payment without a valid reason and fails to remedy that default within 7 days of being notified by the Direct Debit Agent

(i)  the Direct Debit Agent may refer the default to a debt collection agency or solicitor; and

(ii)  we may suspend you and your Minor's access to the Gym and Services until such time as the outstanding fees are paid.

(d)  If proceedings are commenced pursuant to clause 8.5(c):

(i)  you will be liable for any Loss incurred by us, including reasonable legal costs and interest; and

(ii)  we may, at our sole discretion, terminate this Agreement, at which time all outstanding fees must be paid by you to us.

 

9. Photography and media

You consent to:

(a) you and your Minor being photographed, or video recorded by us or our Representatives; and

(b) all photographs and videos, taken or recorded pursuant to clause 9(a), being used in our marketing and promotional activities.

10. Australian Consumer Law

(a) You retain all rights under the Australian Consumer Law.

(b) We will not provide a refund if you request a refund due to a change of mind.

(c) We do not limit, restrict or exclude any consumer guarantees under the Australian Consumer Law.

 

11. Liability

11.1 Limitation of liability

(a) Subject to clause 11.2, we will not be liable to you under or in connection with this Agreement for any Consequential Loss arising from negligence or breach of contract.

(b) We will not be liable to you for any Loss incurred due to any act, omission or negligence of any sub-contractor for the supply of the Services.

(c) If we are found to be liable to you, then our liability will not exceed the Fees already paid, or partially paid, by you in the preceding 12 months.

 

11.2 No limitation
Nothing in this Agreement operates to limit or exclude:

  1. (a)  liability that cannot be limited or excluded by law; and

  2. (b)  our liability resulting from our fraudulent, reckless or

    unlawful act or omission.

12. Indemnity

You indemnify us, our Related Bodies Corporate and Representatives, against all Claims and Losses (including reasonable legal costs) incurred by any indemnified person arising out of or in connection with:

  1. (a)  any death of, or injury to, any person and any loss to the real or personal property of any person, caused by an act or omission of you or your Minor; or

  2. (b)  any breach of this Agreement.

13. Release and assumption of risk

(a) You acknowledge there are risks involved in all aspects of athletic activities and physical training which may result in serious injury or fatality to you (or the Minor), including:

  1. (i)  falls, which can result in serious injury or fatality;

  2. (ii)  injury or fatality due to negligence by you, your Minor, us or third parties;

  3. (iii)  injury or fatality due to improper use or failure of equipment; and

 

(iv) strains and sprains.

  1. (b)  You acknowledge the Services may involve strenuous exercises and other high exertion activities and you (or the Minor) is not obligated to perform nor participate in any activity in which you do (or the Minor does) not wish to participate.

  2. (c)  If you (or the Minor) feels light-headed, faint, dizzy, nauseated, or experiences pain or discomfort, you (or the Minor) must stop Training and notify a BACE MBS Representative.

  3. (d)  You assume full responsibility for the risks that you (or the Minor) are exposed to and accept full responsibility for any injury or death that may result from receiving the Services or using the Gym.

  4. (e)  You warrant:

    1. (i)  you (or the Minor) has no physical impairments, injuries or illnesses that will endanger you, the Minor, other members or BACE MBS Representatives;

    2. (ii)  you are not aware of any medical or physical condition that would prevent you (or the Minor) from receiving the Services;

    3. (iii)  you have disclosed all of you (or the Minor's) injuries and illnesses, whether current or historical; and

    4. (iv)  all information referred to in the Pre-exercise Questionnaire and this clause 13(e) is true and accurate to your best knowledge.

  5. (f)  You, your heirs, executors, administrators or assigns, release, waive and indemnify us and our members, Representatives and Related Bodies Corporate against any Claim arising from, but not limited to, receiving the supply of the Services and use of the facilities, Gym or our equipment.

  6. Complaints

    1. (a)  Any complaints should be made in writing and sent to support@thebace.com.au.

    2. (b)  We will:

      1. (i)  ensure a record of the complaint is placed on file;

      2. (ii)  acknowledge receipt of the complaint within 7 days; and

      3. (iii)  make every reasonable effort to resolve quickly and fairly.

 

Suspension

(a) You must not suspend this Agreement, except in accordance this clause 15.

  1. (a)  If you wish to suspend the provision of the Services for a specified period during the Term (Suspension Period), you must make a written request to us at least by 11:59pm by Sunday night before commencement of the new week.

  2. (b)  You may only suspend this Agreement for a cumulative period of 6 weeks in any 12 month period.

  3. (c)  The Suspension Period may not be backdated, unless otherwise agreed in writing between the parties.

  4. (d)  You must pay the Suspension Fee specified in the Membership Details on approval of the Suspension Period.

 

16. Termination

16.1 Termination without cause

  1. (a)  You must not terminate this Agreement during the Minimum Term.

  2. (b)  After the Minimum Term, you may terminate this Agreement at any time by giving BACE MBS 4 weeks' notice in writing.

  3. (c)  For the avoidance of doubt, if you give BACE MBS notice of termination during the Minimum Term, the termination will take effect from the end of the Minimum T erm.

 

 

16.2 Termination for cause

Either party may terminate this Agreement at any time, by notice with immediate effect, if the other party:

  1. (a)  commits a material breach of the Agreement that is not

    capable of remedy;

  2. (b)  commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 10 days after receiving notice of the breach; or

  3. (c)  suffers an Insolvency Event.

16.3 T ermination for illness or incapacity

  1. (a)  You may terminate this Agreement at any time due to permanent illness or significant physical incapacity by providing us with a written letter of confirmation from a suitably qualified doctor.

  2. (b)  You will remain liable to pay any outstanding fees due and payable to us.

17. General

17.1 Notice

  1. (a)  A notice, approval or other communication provided in connection with this Agreement must be in writing (Notice).

  2. (b)  A Notice may be given by hand delivery, post or by email and is effective upon receipt.

17.2 Entire agreement

This Agreement is the entire agreement between the parties and supersedes all prior discussions, understanding and agreements in relation to the subject matter of this Agreement.

17.3 Assignment

  1. (a)  We may assign, transfer or otherwise deal with any right or obligation under this Agreement to our Related Bodies Corporate.

  2. (b)  We will not assign, transfer or otherwise deal with any right or obligation under this Agreement to a third party (other than our Related Bodies Corporate) without your prior consent.

  3. (c)  You must not assign, transfer or otherwise deal with any right or obligation under this Agreement without our prior consent.

17.4 Waiver and variation

A provision of this Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.

17.5 Counterparts

This Agreement may be executed in any number of counterparts and all counterparts taken together constitute one agreement.

17.6 Rights, powers and remedies cumulative

The rights, powers and remedies given in this Agreement are in addition to other rights, powers and remedies given by law independently of this Agreement.

17.7 Severability

If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of this Agreement.

17.8 Survival

Termination in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clauses 8.5 (d) (ii), 9, 11, 16.3 (b), 17.8 and 17.9.

17.9 Governing law and jurisdiction

(a) This Agreement is governed by the laws in force in New South Wales, Australia.

(b) The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

 

 

 

Execution

EXECUTED as an Agreement

 

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