Smick Health & Fitness Memberships Terms & Conditions
1. Definitions
(a) Access Pass means your membership card allowing you to enter the Club.
(b) Access Pass Fee means the Access Pass Fee specified in the Agreement.
(c) Agreement means this membership agreement made between you and Smick Health & Fitness incorporating the documents referred to in clause 2(b).
(d) Billing Account means the bank account or credit card nominated by you to have your direct debit Membership Fees deducted from.
(e) Club means the Smick Health & Fitness gym as specified in your Membership Agreement.
(f) Club Access means the initial Joining Fee and Access Pass Fee specified in the Agreement.
(g) Club Rules mean the Club rules as amended from time to time, which are located at the Club.
(h) DD Membership means a weekly membership, with recurring fortnightly direct debit payments.
(i) DD Membership Fee means the fortnightly fee payable for the DD Membership inclusive of any Payment Provider fees.
(j) Dishonour Fee means a $10.00 fee.
(k) Pre-Workout Questionnaire means the pre-workout questionnaire that the member is required to complete prior to using the Club.
(l) Foundation Member means a Member that has a Foundation Membership as categorised by this Agreement.
(m) Smick Health & Fitness means the entity specified on your Membership Agreement and includes its heirs, estates, agents, representatives, officers, directors, shareholders, successors, affiliates, subsidiaries and employees.
(n) Joining Fee means the fee specified in the Agreement.
(p) Classes means the group fitness sessions offered by Smick Health & Fitness to Members
(q) Member means the individual who has entered into this Agreement with Smick Health & Fitness.
(r) Membership Agreement means the form provided to you by Smick Health & Fitness requiring you to provide the relevant details to Smick Health & Fitness (e.g. name, address, payment card details) relating to your membership.
(s) Membership Fees means the fees that are due and payable by you pursuant to this Agreement.
(t) Minor means members under the age of 18.
(u) Paid In Advance (PIA) Membership means Members that have paid in advance according to the level of PIA membership as specified in this Agreement.
(v) Payment Agreement means the Agreement between you and us permitting our Payment Provider to provide the direct debit and credit card payment facilities to you on our behalf in accordance with the Payment Provider’s Direct Debit Service Agreement.
(w) Payment Provider means the payment provider specified from time to time by Smick Health & Fitness, which is currently Ezidebit unless Smick Health & Fitness otherwise specifies.
(x) Payment Provider’s Direct Debit Request Service Agreement means the Payment’s Provider’s service agreement provided to you by Smick Health & Fitness.
(y) Policies means the Smick Health & Fitness membership policies as amended from time to time, which are available at your Club on request.
(z) Privacy Policy means the Smick Health & Fitness privacy policy which is available by emailing Chrissy@SmickHealthandFitness.com
(aa) Products means any products that are purchased pursuant to Smick Health & Fitness sale of goods terms and conditions.
(ab) Staffed Hours means the hours for the Club, which are located at the entrance to the Club
Smick Health & Fitness reserves the right to change the Staffed Hours at any time without notice.
(ac) Written Notice means notice in writing, given in person, by email or post to the parties’ last known address.
2.Terms and Conditions
(a) Your membership is governed by this Agreement.
(b) This Agreement incorporates these terms, the Membership Agreement, the Policies, the Club Rules and the Privacy Policy.
(c) Accepting this Agreement does not automatically entitle you to a membership as your application may be subject to further review by Smick Health & Fitness.
(d) Smick Health & Fitness reserves the right, in its sole discretion, to amend this Agreement.
(e) Smick Health & Fitness holds, so far as a provision of this Agreement is for the benefit of a third-party that provision on trust for the relevant third-party.
3. Membership
(a) Nature of Membership Your membership permits you to use Smick Health & Fitness’ premises, facilities, equipment and services as shown and limited by the membership identified. Your membership is non-transferable by you unless deemed appropriate by Smick Health & Fitness.
(b) Change to Details You must provide Smick Health & Fitness with any changes to your details, which are relevant to your membership in writing.
(c) Club Privileges Subject to clause 18, your membership entitles you to utilise “Smick Health & Fitness” areas.
(d) Membership Hold Smick Health & Fitness doesn’t hold memberships unless deemed appropriate, Smick Health & Fitness reserves the right to assess each membership hold on its own merit.
(e) Membership Transfer – Paid in Advance (PIA) A Member may not transfer their PIA membership unless deemed appropriate, Smick Health & Fitness reserves the right to assess each membership hold on its own merit.
(f) Membership Transfers - Direct Debit (DD) Members who pay fortnightly cannot transfer their membership. (g) Foundation Membership Members who duly complete and agree to this Agreement prior to the Club opening date are defined under the Policies as a Foundation Member. A Foundation Member has the privilege of maintaining the same membership price for the life of this Agreement. Termination of Foundation Membership privileges is effective on the date Smick Health & Fitness advises the member by Written Notice. Smick Health & Fitness reserves the right to terminate a Foundation Member’s privileges in the event of the following:
(i) A PIA membership is not renewed prior to its expiry date;
(ii) A PIA membership is transferred to non-Member; or
(iii) A PIA membership is cancelled or terminated; or
(iv) A DD membership is cancelled or terminated; or
(v) A DD membership is in arrears; or
(vi) A DD membership is transferred in accordance with the Membership Transfer Policy; or
(vii) A member’s conduct is improper, harmful or illegal and contrary to the best interest of Smick Health & Fitness and / or its Members.
4. Payments
(a) You agree to pay all Membership Fees as set out in this Agreement and agree to be bound by the direct debit terms and conditions as described in the Payment Agreement and the Payment Provider’s Direct Debit Request Service Agreement.
(b) For a DD Membership you must make your payments on a fortnightly basis in advance.
(c) For a PIA membership, you must pay your membership in advance according to your level of PIA membership as indicated by Smick Health & Fitness to you.
(d) For all memberships you must make payment of the Club Access and pro-rata amount in advance and the balance of the Membership Fees by way of direct debit (or if PIA by way of credit, cash or EFTPOS).
(e) You must provide to Smick Health & Fitness, in the form requested by Smick Health & Fitness, a Payment Agreement authorising Smick Health & Fitness’ Payment Provider to debit the Membership Fee due for each direct debit period from your Billing Account.
(f) Smick Health & Fitness will endeavour to contact you by phone, sms or email to inform you of any overdue payments. In the event that Smick Health & Fitness cannot contact you, it will provide you with Written Notice of overdue payments.
(g) A Member will be charged a Dishonour Fee in the event that a fortnightly direct debit payment is dishonoured by their financial institution.
(h) A Member will be charged a $29.00 fee if their Access Pass is damaged or lost and requires replacement.
(i) Additional fees (being bank charges or administrative charges incurred by the Payment Provider) will apply for any overdue or late payments.
(j) If there are repeated failures to meet your payment obligations (other than through the fault of Smick Health & Fitness or its Payment Provider), without prejudicing Smick Health & Fitness’ rights to recover any overdue payments, your membership may be suspended or terminated by Written Notice to you.
(k) You acknowledge and agree that Smick Health & Fitness may change its Payment Provider and that Smick Health & Fitness and/or the current Payment Provider may, in their sole discretion, assign or novate all existing Payment Agreements to a new payment provider. In the event that Smick Health & Fitness or the current Payment Provider assigns or novates the existing Payment Agreements to a new payment provider, you consent to Smick Health & Fitness or the current Payment Provider providing your personal information (including, but not limited to your payment details, to its new payment provider) in accordance with this Agreement and Smick Health & Fitness’ Privacy Policy.
(l) Smick Health & Fitness reserves the right, at any time, to change the Membership Fees charged to Members for use of the Club facilities. Smick Health & Fitness agrees to use reasonable endeavours to provide you with Written Notice of the changes. The changes will take effect 30 days after the Written Notice has deemed to be been received by you. We deem receipt to have occurred 2 business days after the Written Notice was sent. At the end of the 30 day period, you authorise Smick Health & Fitness and/or the Payment Provider to debit the new amount to your account.
(m) If you opt in for a classes membership and are on a DD Membership, the DD Membership Fee for both membership types will occur on the same date.
(n) If you are a PIA Member can only opt into a Classes membership for the remainder of the PIA Membership term so that the Classes membership aligns with the PIA Membership subscribed to prior to the Classes upgrade.
(o) If you are on a DD Membership you may cancel your Classes membership at any time provided you request your membership be downgraded in writing to Smick Health & Fitness.
(ii) Your reduced financial obligations due to a membership downgrade will apply on and from the date that the Written Notice has been processed and accepted by Smick Health & Fitness.
5. Minimum Age
(a) All Members of Smick Health & Fitness must be a minimum of 16 years of age. All Minors must have a parent or legal guardian agree to the terms of this Agreement. All Minors must attend the Club to obtain a membership.
(b) You must be a minimum of 16 years of age to participate in Classes.
(c) Minors aged 16-17 years of age must comply with the restrictions outlined in the Membership Age Policy available at the Club
6. Staffed Access
(a) A Member may be subject to a Staffed Access only membership, which will only allow them to attend the Club during Staffed Hours.
7. Access by Non-Members
(a) Smick Health & Fitness only grants Members, unless otherwise specified in this Agreement, access to the Club. No Member is permitted to bring a non-Member into the Club.
(b) If a Member breaches clause 7(a) of this Agreement, the Member acknowledges that:
(i) they accept responsibility and liability on their personal behalf for any injury, loss or damage attributed to the non-Member whether or not caused through the negligence of Smick Health & Fitness;
(ii) the act of bringing a non-Member into the Club constitutes automatic acceptance by the Member of a new membership for the non-Member. The Joining Fee and Access Pass Fee, in addition to the DD Membership Fee, will be charged to the Member in the following ways:
(1) for a Member who holds a DD Membership, this amount will be deducted from their nominated bank account; and
(2) for a Member who holds a PIA Membership, the Member will receive an invoice for this amount;
(iii) payment of the amount in accordance with the clause above will entitle the non-Member to use the Club for one fortnight;
(iv) in order for the non-Member to take advantage of the new membership, they will need to attend the relevant Club and comply with all of the obligations that all new Members are required to comply with pursuant to this Agreement;
(v) Smick Health & Fitness reserves the right to terminate the membership of the Member who brings a non-Member into the Club.
8. Orientation
(a) It is a condition of this Agreement that you agree to participate in a orientation program.
(b) The orientation focuses on various aspects of the Club including, but not limited to, Club layout, amenities and entry and exit areas. This doesn’t include instruction on using the equipment.
(c) Smick Health & Fitness may suspend or terminate this Agreement in the event of unsatisfactory completion of the Club orientation prior to the commencement of exercise.
(d) You acknowledge and agree that "Smick Health & Fitness" may have different equipment and/or a different layout to what you are used to. You acknowledge and represent to Smick Health & Fitness that you will seek assistance from Smick Health & Fitness personnel during staffed hours before using equipment that is unfamiliar to you.
9. Physical Condition
(a) It is your responsibility not to use any equipment or to participate in Classes sessions if they may adversely affect any medical condition.
(b) You hereby represent to your Club and Smick Health & Fitness and their directors, officers, employees, contractors and agents that, to the best of your knowledge, you do not have any physical, medical or other disability or condition which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of, your use of the Club or its facilities.
(c) If you have any health or medical concerns now or after you join as a Member of the Club, you must discuss them with your doctor before using the equipment or the Club.
(d) You acknowledge that Smick Health & Fitness did not give you any medical advice before you used the equipment or participated in Classes sessions, and cannot give you any medical advice after you use the equipment.
10. Pre-Workout Questionnaire
(a) It is a condition of membership with Smick Health & Fitness that each Member, prior to using the Club, has to complete the Pre-Workout Questionnaire.
(b) You will not be permitted to use the Club until you have completed the Pre-Workout Questionnaire.
(c) Smick Health & Fitness reserves the right to restrict, suspend or terminate your membership if Smick Health & Fitness is of the reasonable opinion that you are unfit to utilise the Club on a 24/7 basis. If your membership is restricted or suspended for this reason, your membership will not be reinstated until you provide Smick Health & Fitness with a medical certificate confirming that you are fit to train.
11.Video and Audio Surveillance
(a) For security purposes, Smick Health & Fitness uses video and audio surveillance equipment to monitor the Club on a 24 hour basis.
(b) By accepting this Agreement you acknowledge that by accessing “Smick Health & Fitness” you will be subject to video and audio surveillance and recording.
(c) Video and audio surveillance is limited to the floor area only, and is not within the walls of the bathrooms or massage room.
12. Equipment
(a) You understand and acknowledge that Smick Health & Fitness purchases or leases the equipment from a third party and therefore does not manufacture any of the fitness or other equipment used in the Club.
(b) You understand and acknowledge that Smick Health & Fitness is providing recreational services and may not be held liable for defective products or equipment.
13. Liability for Property
(a) Smick Health & Fitness is not liable to you for any personal property that is damaged, lost, or stolen while on or around the Club including, but not limited to, a vehicle or its contents or any property left in a locker.
(b) If you cause damage to the Club or any equipment you are liable to Smick Health & Fitness for its cost of repair or replacement.
14. Release and Indemnity
(a) Smick Health & Fitness is entitled to ask you to agree to exclude, restrict or modify its liability for death or any personal injury suffered by you on Club premises, or from the use of our facilities or equipment.
(b) If you accept this Agreement, you agree to restrict the liability of Smick Health & Fitness if you are killed or injured, with the result that compensation may not be payable if you or a third party suffers death or personal injury.
(c) Smick Health & Fitness may refuse to provide you with the services if you do not agree to exclude, restrict or modify your rights by accepting this Agreement. Even if you accept this Agreement, you may still have further legal rights against Smick Health & Fitness.
(d) A parent or legal guardian of a child who acquires recreational services for the child cannot legally agree to exclude, restrict or modify the child's rights.
15. Release and Indemnity (Victoria)
(a) Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you —
(i) are rendered with due care and skill; and
(ii) are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and
(iii) might reasonably be expected to achieve any result you have made known to the supplier.
(a) Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the supplier is entitled to ask you to agree that these statutory guarantees do not apply to you. If you accept this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.
(b) You accept that your use of the facilities provided by Smick Health & Fitness or at any “Smick Health & Fitness” branded club is at your own risk and you acknowledge that the use of the facilities may involve risk or injury, whether caused by you or another party. By accepting this agreement you agree that Smick Health & Fitness will not be liable for any personal injury suffered on club premises, or from using our facilities or equipment.
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, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
16. Cooling Off Period
(a) All new memberships are subject to a cooling off period of 10 business days.
(b) A request for termination of membership during the cooling off period must be made by Written Notice unless this Agreement is defined as an unsolicited consumer agreement under the Australian Consumer Law, in which case termination may be written or oral.
(c) For any membership terminated validly during the cooling off period, Smick Health & Fitness will refund to you the total of all Membership Fees.
17. Your Right to Terminate Your Membership
(a) You may terminate your membership at any time on the following basis:
(i) You provide a request for termination of your membership in writing to Smick Health & Fitness.
(ii) If your request for termination is for reason of permanent sickness or physical incapacity and this prevents you from using the Club:
(A) your request must be accompanied by a medical certificate evidencing such permanent sickness or physical incapacity; and
(B) there will be a refund of any unused Membership Fees.
(iii) In the event of death, your estate must provide written evidence in the form of a death certificate and all unused Membership Fees will be refunded.
(iv) If your request for termination is for reasons other than permanent sickness or physical incapacity:
(A) in relation to DD Memberships:
(1) you may terminate your membership at any time;
(2) you must provide Smick Health & Fitness with Written Notice of termination with Smick Health & Fitness processing your termination as follows: (a) Written Notices received before 5pm on a Business Day will be actioned within 7 Business Days or (b) Written Notices received after 5pm or on a day other than a Business Day will be actioned the next 10 Business Days; and;
(3) the Member will not incur any financial obligations under this Agreement on and from the date that the Written Notice has been processed and accepted by Smick Health & Fitness and the Member has a right to continue attending the Club until the Member’s pre-paid period expires.
(B) in relation to PIA Members:
(1) you may not terminate the membership during the prepaid period (or get a refund), unless you suffer from a permanent sickness or physical incapacity as described in clause 17(a)(ii); and
(2) if you do not renew your PIA membership by the renewal date, your membership will automatically expire.
18. Smick Health & Fitness’ Right to Restrict or Terminate Your Membership
(a) Smick Health & Fitness may restrict your membership (including by limiting access to other “Smick Health & Fitness” branded clubs and for limiting access to Staffed Hours) at any time on the following basis:
(i) concern for the health and/or safety of the Member; or
(ii) non-compliance, improper or harmful conduct engaged in by the Member.
(b) Smick Health & Fitness may terminate your membership at any time on the following basis:
(i) you fail to make any payments of your Membership Fees;
(ii) Smick Health & Fitness reasonably suspects that you are engaging in illegal activity in the Club;
(iii) you fail to follow any of the Policies or Club Rules, or violate any part of this Agreement; or
(iv) your conduct is improper or harmful to the best interest of Smick Health & Fitness Members.
(c) In the event that Smick Health & Fitness terminates your membership in accordance with clause 18(b), termination will be effective on the date that Smick Health & Fitness sends Written Notice. You are liable for all financial obligations until that date. If you are a PIA Member, Smick Health & Fitness will not refund any unused portion of your fees.
(d) Upon termination of your membership by Smick Health & Fitness, you will cease to have access to the Club. Any money owing to Smick Health & Fitness when your membership ends, remains immediately due and payable and Smick Health & Fitness will deduct the amount outstanding from any refund which you may be eligible. If there is not enough money to cover the amount owing to Smick Health & Fitness, you must pay the balance of the amount owing.
(e) Upon termination of your membership by your election, you will cease to have access to the Club.
(f) Termination or expiration of this Agreement shall be without prejudice to the rights of each party against the other in respect of anything done or omitted under this Agreement prior to such termination or expiration.
19. Termination and Unauthorised Cessation of Direct Debit
(a) 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 Smick Health & Fitness for any unpaid fees, or fees incurred by Smick Health & Fitness.
20. Assignment
(a) Smick Health & Fitness may assign or novate its rights under this Agreement at any time without prior consent.
21. Risk Warning
(a) Smick Health & Fitness warns that whilst you are on our premises using our Club and recreational services, you are at risk of suffering physical harm or personal injury including broken bones, soft tissue injuries, joint injuries, permanent disability or death. These injuries may occur from you:
(i) slipping on wet flooring;
(ii) being struck by weights;
(iii) colliding with equipment, or other Members;
(iv) engaging in strenuous exercise and activities; or
(v) incorrect use of equipment or Club,
(b) You acknowledge that any such injury may result not only from your actions but from the action, omission or negligence of others.
(c) You acknowledge and agree that the above mentioned injuries and potential causes of injuries are not exhaustive, and there are other unknown or anticipated risks that may result in injury, illness or death.
(d) You acknowledge that whilst every attempt is made to ensure that the recreational services and facilities provided by Smick Health & Fitness are safe, there are some significant and inherent risks involved, and you agree that you are participating voluntarily at your own risk and responsibility, thereby exposing yourself to certain risks.
22. Classes
(a) Smick Health & Fitness reserves the right to decrease the number of Classes fitness session at any time without notice.
(b) You must book your Classes session in advance through Smick Health & Fitness.
(c) If you cancel any Classes session within one hour of its scheduled start time you will forfeit the session and not receive a refund.
(d) You may purchase Classes sessions through a PIA Membership.
(e) The Classes sessions purchased through a PIA Memberships will expire as follows:
(i) a one (1) session pass will expire after 30 days from the date of purchase; and (ii) a ten (10) session pass will expire after 6 months from the date of purchase.