TERMS AND CONDITIONS OF THE GENESIS FITNESS/DEBITSUCCESS MEMBERSHIP AGREEMENT
This document outlines the rights and responsibilities relating to the Member’s entitlements during the Membership Period to use of the Centre’s facilities. It also relates to the member’s authority to Debitsuccess Pty Ltd to directly debit the nominated bank account or credit card for any instalments or fees due under the terms and conditions of this Membership Agreement and the accompanying Direct Debit Request Service Agreement (DDR). These terms are stated below.
In this Agreement unless the contrary intention appears:
a. The singular includes the plural and vice versa.
b. A reference to a party includes that party’s legal personal representative heirs and assigns.
c. “Member“ includes the parent or guardian of the Member if the Member is under 18 years.
d. “Centre” means the Genesis Fitness Centre named on the Direct Debit Request (DDR) and Contract that this Agreement refers to.
e. “Debitsuccess” is Debitsuccess Pty Ltd, PO Box 577, Mt Waverley, Vic, 3149, Phone: 1800 267 916, E-mail: Memberservice@Debitsuccess.com. All queries and comments about the Services provided under this Membership Agreement should be directed to the Centre. All queries and comments about the direct debit billing service should be directed to Debitsuccess. The Member acknowledges that Debitsuccess has been engaged by the Centre to collect the fees due under this Membership Agreement if paying by way of direct debit, and also acknowledges that all rights of the Centre under this Membership Agreement are able to be enforced by Debitsuccess as if it were the Centre without any involvement on the part of the Centre or the consent of the Member.
3. LEGALLY BINDING AGREEMENT
The Member acknowledges and agrees that:
a. The Direct Debit Request (DDR) and Contract is legally binding whether the use of the Centre and its services is determined and paid on a yearly, monthly, weekly or individual basis,
b. The membership must remain current in order to avoid paying the joining fee again,
c. They declare that they are physically and medically fit and capable to engage in exercise and fitness programs at the Centre, and have and will inform instructors of any condition or risk that may have an effect on their ability to participate in any exercise or fitness program prior to commencement,
d. They are 18 years of age or older at the time of agreeing to the Direct Debit Request (DDR) and Contract, and not under any other legal disability. If not, a parent or adult guardian will sign also.
4. RECEPTION AND ACCESS
a. All Members must swipe or present their card at reception every time they attend the Centre.
b. Members must advise any changes of address and phone number.
c. The facilities are available to the general public and not exclusively for members.
5. GENERAL CONDITIONS OF ENTRY
To ensure the Centre is able to provide a high level of service in a safe, healthy and pleasant environment for all, Members must comply with the following conditions:
a. Entry will be refused or a person requested to leave the Centre if the person: i. is abusive or uses offensive language or whose behaviour is threatening or ii. is under the influence of drugs or alcohol
b. No smoking is permitted in the Centre.
c. No chewing gum permitted in the Centre.
d. Sweat towels must be used at all times.
e. Weights must be returned to their correct place after use.
f. Correct training attire and runners must be worn in the Centre – no jeans, work clothes, boots, sandals, thongs, or clothing that is likely to cause offence to others are permitted.
g. No person under the age of 16 is allowed in the Centre unless accompanied by a guardian or qualified instructor.
h. No food allowed in the gym or group exercise classes.
i. No entry to a group exercise class 5 minutes after it starts.
6. LOCKERS (where provided)
a. All items stored in the lockers are at your risk and we do not accept responsibility for items lost, damaged or stolen
b. Bags are not permitted in the Centre unless placed in the lockers provided.
7. CANCELLATION / TERMINATION
a. Cooling Off Period:
The Direct Debit Request (DDR) and Contract is subject to a 7 day cooling off period:
i. The cooling off period commences from the date and time of receipt of the confirmation email by the Member “Commencement Date”.
ii. The cooling off period is 7 days.
iii. New Members have the right to cancel their membership within the cooling off period if they are not completely satisfied with the services and programs.
iv. All monies will be refunded on a pro rata basis with the exception of fees for an Administration Fee whichever is the lesser of up to 10% of the Membership Fee or $75.
v. All cooling off cancellations must be in writing to the Manager.
b. Permanent Disability:
i. Upon providing written advice of a permanent disability or serious illness, along with a letter from a medical practitioner detailing the disability or illness, the Centre may agree to cancel the membership effective from the day of notice for an Administration Fee of up to 10% of the Membership Fee.
ii. All monies will be refunded with the exception of charges for services already delivered.
c. Direct Debit Membership
i. ALL CANCELLATION REQUESTS MUST IN THE FIRST INSTANCE BE DIRECTED TO THE CENTRE.
1. Cancellations inside the minimum term - The Member may terminate their Membership Agreement before the expiry of the minimum term or payments if all the instalments and fees due up to the date of termination are paid, and in addition the cancellation fee if specified in the Direct Debit Request (DDR) and Contract is paid to Debitsuccess. If a cancellation fee is not specified in the Direct Debit Request (DDR) and Contract then the Direct Debit Request (DDR) and Contract may not be cancelled before the expiry of the minimum term or payments.
2. Cancellations after completion of the minimum Term - After the expiry of the minimum term or payments, and after all instalments and fees due have been paid in full, should the Direct Debit Request (DDR) and Contract specify a minimum term, then the DDR and Contract shall automatically terminate.. If the minimum term is not specified in the Direct Debit Request (DDR) and Contract, then the Direct Debit Request (DDR) and Contract shall continue indefinitely until such time as the Member makes a request, after the expiry of the minimum term for it to terminate. Any instalments/fees due at the date of termination (including instalments/ fees which fall due during the notice period) will remain a debt owed to and recoverable by Debitsuccess. There will be a period of notice of 30 days unless otherwise specified by the Centre between the date of request and the date of actual termination during which any payments due must still be paid in full. The Member should contact Debitsuccess if they have not received written confirmation of the termination within the 30 day period. The Member shall not consider that the Direct Debit Request (DDR) and Contract has been terminated until such time as this is confirmed in writing to the Member by Debitsuccess (not more than 14 days after the termination date). Termination of the Direct Debit Request (DDR) and Contract will also terminate the Direct Debit Request Authority.
8. TRANSFER OF MEMBERSHIP BY THE MEMBER
a. Transfer of membership will only be permitted from a Member to a non member and will incur a Transfer Fee of $55. If paying by Direct Debit, this fee is payable to the Centre
b. Transfers between Centres will be by agreement of the Manager of the Centre to which the Member wishes to transfer to.
9. REPLACEMENT CARD FEE
If a Membership Card is lost, destroyed or damaged and requires replacement a Replacement Card Fee of $5.00 payable to the Centre will apply.
10. ADDITIONAL FEES FOR SPECIAL SERVICES
Some services require an additional fee and these include personal training, crèche and swimming lessons.
11. DAMAGE TO THE CENTRE
Any Member who wilfully or through their negligence damages the Centre or its property will pay for the damage. Members are responsible for damages caused by their guests and children.
12. SAFETY, MAINTENANCE & SERVICE DEMAND
The Centre may from time to time as reasonably necessary:
a. close off any part of the premises or isolate any piece of equipment for maintenance or safety reasons;
b. change the hours of opening and closing or alter class timetables in accordance with demand; or
c. vary Centre rules.
Where this occurs the Centre will provide reasonable notice on the Centre notice boards or at reception.
13. DAMAGE & PERSONAL INJURY
To the extent permitted by law, the Centre and Debitsuccess excludes any liability to the Member in Membership Agreement, tort, statute or in any other way for any injury, damage or loss of any kind whatsoever (including, without limitation, any liability for direct, indirect, special or consequential loss or damage), sustained by the Member and/or any other person, or for any costs, charges or expenses incurred by the Member, arising from or in connection with the Direct Debit Request (DDR) and Contract and/or the services/products provided by the Centre and/or Debitsuccess, and/or any act or omission of the Centre and/or Debitsuccess.
Warning under the Fair Trading Act 1999 (Victorian Memberships Only)
a. If you participate in these activities your rights to sue the supplier under the Fair Trading Act 1999 if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this notice/appointment.
NOTE: The change to your rights, as set out in or on this notice, does not apply if your death or injury is due to gross negligence on the supplier’s part. “Gross negligence” is defined in the Fair Trading (Recreational Services) Regulations 2004.
b. Under the provisions of the Fair Trading Act 1999 several conditions are implied into Membership Agreements for the supply of certain goods and services. These conditions mean that the supplier named on this form is required to ensure that the recreational services it supplies to you are
*rendered with due care and skill; and
*as fit for the purpose for which they are commonly bought as it is reasonable to expect in the circumstances; and
*reasonably fit for any particular purpose or might reasonably be expected to achieve any result you have made known to the supplier.
Under section 32N of the Fair Trading Act 1999, the supplier is entitled to ask you to agree that these conditions do not apply to you. If you sign this form, you will be agreeing that your rights to sue the supplier under the Fair Trading Act 1999 if you are killed or injured because the services were not rendered with due care and skill or they were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in this form.
NOTE: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier’s part. “Gross negligence” is defined in the Fair Trading (Recreational Services) Regulations 2004.
In the event any part of this Direct Debit Request (DDR) and Contract being or becoming void or unenforceable then that part shall be severed from the Direct Debit Request (DDR) and Contract with the intention that the balance of the Direct Debit Request (DDR) and Contract shall remain in full force and effect, unaffected by the severance.
Suspension may be possible under the terms of the Direct Debit Request (DDR) and Contract. You may suspend for a minimum of 2 weeks at a time so long as the total time suspended within the minimum term does not exceed 6 weeks. In order to suspend you must contact the Centre manager in writing with reasonable notice (at least 3 days) prior to the date of suspension. There is a charge of $5.00 per week dependant on the type of membership while the Agreement is suspended. Any time spent on suspension will be added onto the minimum term of the Agreement so that the amount payable shall still be payable regardless of any suspension or suspension charges made.
16. BREACH OF TERMS & CONDITIONS
Any breach of these terms and conditions will result in a warning and any further breach will result in a second warning and your membership may be suspended or terminated. A proven serious breach of the general conditions of entry under Clause 5 may result in immediate termination of your membership without warning. The Member, Debitsuccess and the Centre each hold reciprocal rights of termination for a material breach of any term or condition of this Membership Agreement. The Membership Agreement will be terminated upon receipt of written notice outlining the relevant breach.
17. TRANSFER OF MEMBERSHIP BY THE CENTRE
a. The Centre will have the right to assign or novate the Membership Agreement to a third party in the event of the sale of the business.
b. The Centre may relocate to another premise within a 5 kilometre radius and the location at which the services are provided may change during the term of the agreement. In the event of a) or b) occurring you agree that the Direct Debit Request (DDR) and Contract will continue with the new third party and/or at the new location.
18. PAYMENTS BY DIRECT DEBIT
If paying by Direct Debit the Member agrees to pay the instalment amount at the agreed payment frequency until the Direct Debit Request (DDR) and Contract is terminated in accordance with Clause 7 above. Should there be any arrears in payments the Member authorises Debitsuccess to debit the outstanding balance in order to bring the account up to date.
19. ADMINISTRATION FEE (DIRECT DEBIT)
If paying by Direct Debit, a one-off Administration Fee of the value indicated on the face of the Contract is payable to Debitsuccess by the Member on completion of the Direct Debit Request (DDR) and Contract. This fee is split, $10 to Debitsuccess, the remainder to the Club.
A Customer’s “personal information” (as that term is defined in the Privacy Act 1988 (Cth)) will only be used by the Centre or Debitsuccess to provide you with the services contemplated by the Direct Debit Request (DDR) and Contract. . Debitsuccess’ Privacy Statement is to be found on its website www.Debitsuccess.com. The Centre’s Privacy Statement can be obtained from the Centre.
21. CREDIT/DEBT REPORTING AGENCIES
If paying by Direct Debit, upon default by the Member in regard to any obligation under the Direct Debit Request (DDR) and Contract and failure to remedy the default after notification by Debitsuccess, the Member authorises Debitsuccess to notify any debt collection/credit reporting agency of the default. Should this occur then at Debitsuccess’ sole discretion it may terminate the Membership Agreement at which time the full outstanding balance for the remainder of the minimum term or payments (including any current arrears) shall be due in full. The Member authorises Debitsuccess to add to the outstanding debt a fee of $50 and an amount equivalent to 25% of the full outstanding balance (being Debitsuccess’ expenses reasonably incurred in collecting the debt) upon initial referral to the debt collection/credit reporting agency.
22. INCREASE IN FEES
If paying by Direct Debit, Debitsuccess may at any time AFTER the end of the minimum term, upon sending written notice to the Member's last known address and giving 14 days notice, increase the instalment amount. If the Member wishes to terminate the Direct Debit Request (DDR) and Contract as a result of the increase in the instalment amount, the Member must notify Debitsuccess in writing within 14 days of the date of the written notice sent by Debitsuccess. The Membership Agreement will be terminated upon receipt of this notice. If the Member does not notify Debitsuccess of its intention to terminate the Direct Debit Request (DDR) and Contract within such specified time period, then the Direct Debit Request (DDR) and Contract will remain in force and the increase in the instalment amount will be deemed to be accepted by the Member.
23. ENTIRE AGREEMENT
The Direct Debit Request (DDR) and Contract, constitute the entire agreement, understanding and arrangement (express and implied) between the Member, the Centre and Debitsuccess relating to the subject matter of the Direct Debit Request (DDR) and Contract and supersedes and cancels any previous agreement, understanding and arrangement relating thereto whether written or oral.
24. STATE SPECIFIC CONDITIONS APPLICABLE TO WESTERN AUSTRALIAN MEMBERSHIPS ONLY
Clause 7.a is presented as follows:
The Direct Debit Request (DDR) and Contract is subject to a 7 day cooling off period
Clause 7.c.i.2 is presented as follows:
Cancellations after completion of the minimum term - After the expiry of the minimum term or payments, and after all instalments and fees due have been paid in full, should the Direct Debit Request (DDR) and Contract specify a minimum term, then the DDR and Contract shall automatically terminate. If there is no minimum term stated, then;
| this is an ongoing membership agreement. The agreement will continue until either you or the supplier terminates it in the way described in the agreement. If an automatic debit arrangement is in place, membership fees will continue to be debited from your credit card or account until you or your fitness centre 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 to the fitness centre for damages for breach contract.
Any instalments/fees due at the date of termination (including instalments/ fees which fall due during the notice period) will remain a debt owed to and recoverable by Debitsuccess. There will be a period of notice of 30 days unless otherwise specified by the Centre between the date of request and the date of actual termination during which any payments due must still be paid in full. The Member should contact Debitsuccess if they have not received written confirmation of the termination within the 30 day period. The Member shall not consider that the (DDR) and Contract has been terminated until such time as this is confirmed in writing to the Member by Debitsuccess (not more than 14 days after the termination date). Termination of the Direct Debit Request (DDR) and Contract will also terminate the Direct Debit Request Authority.
25. ADDITIONAL TERMS AND CONDITIONS RELATING TO 24/7 ACCESS IF PROVIDED
If the Membership type provided includes 24/7 access to the Centre then the provisions of this clause 25 apply to the membership:
a. Genesis 24/7 Centres are unmanned facilities for periods of time and as such if you participate in activities in these facilities you are exposing yourself to the potential for serious injury including death. As such you should take note that your rights to sue the supplier if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this notice/appointment.
1. The member expressly indicates an understanding of the risks associated with undertaking activities in an unmanned and unsupervised Centre and hereby releases, indemnifies and holds harmless Genesis, their respective owners, officers affiliates, agents and employees in the event that I suffer personal loss, am injured or killed in the Centre.
2. Further, the member provides this release whether it arises from the negligence of the releases or otherwise and does so with the intention that this release shall be as broad and inclusive as the laws of the state allow.
b. The member acknowledges and agrees that they may not admit guests at any time to the Genesis 24/7 Centre. Furthermore, the member agrees that if this clause is breached then the following provisions shall apply:
1. Upon a first breach the member’s access to the Genesis 24/7 Centre shall be immediately suspended for a period of 14 days without any notification to the member
2. Upon any subsequent breach the member’s membership shall be immediately cancelled and the member agrees to pay a cancellation fee of $220 or 50% of the remaining membership fees due and payable under the terms of the agreement, whichever is the higher.
TERMS AND CONDITIONS OF THE DEBITSUCCESS DIRECT DEBIT REQUEST (DDR) SERVICE AGREEMENT
1. Initial Terms
Debitsuccess will debit your nominated account for the amounts and at the frequency of payments as agreed between us on the Debitsuccess DDR Membership Agreement. and accepted by you.
2. Change of Terms
In the unlikely event that the initial terms are to change, they can only do so in accordance with your Membership Agreement and we must give you at least 14 days notice of the changes including if applicable the new amount, new frequency and next debit date.
3. Deferring or stopping a payment
Should you wish to defer a payment to another date you must contact Debitsuccess before the date of that payment to request the deferment. Deferments are entirely at the discretion of Debitsuccess and will depend on the length of deferment, the current state of your account and your past history. You may request us to stop an individual payment however you will still be liable to make this payment by some other method or your account will become overdue.
4. Altering the Schedule
Should you wish to alter the payment frequency or Day to Debit contact Debitsuccess and at our discretion in most instances we will be able to make the changes you require. There may be a fee charged for this service (details of any fees payable can be obtained by contacting Debitsuccess on 1-800 040 576). Any changes made will not affect the total amount you would otherwise have paid over the minimum term of your Membership Agreement.
5. Suspending the Payments
Suspension of payments may be possible under the terms of your Membership Agreement. Payments may be suspended for a minimum of 2 weeks at a time so long as the total time suspended within the minimum term does not exceed 6 weeks. In order to suspend payments you should contact Debitsuccess at least 3 days prior to the date of the first suspended payment. There is a charge of $5.00 per week while the Membership Agreement is suspended unless a different fee is specified in this Membership Agreement.. Any time spent on suspension will be added onto the minimum term of the Membership Agreement so that the sum of the instalments payable for the minimum term or number of payments shall still be payable regardless of any suspension or suspension charges made.
6. Cancelling the payments
You can cancel this Direct Debit Request Authority by requesting this of Debitsuccess or your bank. Cancellation of the authority to debit your account will not terminate this Membership Agreement or remove your liability to make the payments you have agreed to.
If you dispute any debit payment, you must notify Debitsuccess immediately. Debitsuccess will respond to your dispute within 7 working days and will immediately refund the amount of the debit if we are not able to substantiate the reason for it. If you do not receive a satisfactory response from us to your dispute contact your financial institution who will respond to you with an answer to your claim within 5 business days if your claim is lodged within 12 months of the disputed drawing, or within 30 business days if your claim is lodged after 12 months from the disputed drawing.
8. Non working day
When the day to debit falls on a weekend or public holiday the debit will be initiated on the next working day.
9. Dishonoured Payments
It is your responsibility to ensure that on the due date clear funds are available in your nominated account to meet the direct debit payment. Should your payment be dishonoured Debitsuccess will debit you an additional $10 with your next payment and may, if we have not received instructions to the contrary from you, debit both the current due payment and the now overdue payment(s) on the same day. Debitsuccess may debit other fees or costs involved with debt collection in accordance with the terms and conditions of the Membership Agreement (refer to Clause 21 Credit/Debt Reporting Agencies).
All enquiries should be directed to Debitsuccess and should be made at least 1 working day prior to the next scheduled debit date.
11. Your other responsibilities
In addition to those already mentioned, you are responsible for ensuring that your nominated account is able to accept direct debits. If it is not, it is your responsibility to provide Debitsuccess with a new account number.