Attachment A. TERMS AND CONDITIONS
1 Definitions
1.1 Access Code: the number given to you upon the confirmation of your Membership for access to the Facilities and Services.
1.2 Administration Fee: the Fee payable under clause 8.2(b), which is 10% of the Membership Fee.
1.3 Agreement: the Membership Application Form and this Agreement as described in the Important Notice.
1.4 ACL: means the Australian Consumer Law in the CCA.1.5 Cancelation Fee: the Fee payable under clause 8.2.
1.6 CCA: the Competition and Consumer Act 2010 (Cth).
1.7 Declaration: the questionnaire that is a part of this Agreement or other screening we may require you to answer before using the Facilities and Services.
1.8 Facilities and Services: includes the Gym premises and all exercise areas, bathrooms, equipment, weights, benches, machines, mats and any programs,products, classes and services that you may use (excluding services referred to in clause 14).
1.9 FCAR: Falls Creek Alpine Resort, 1 Slalom Street, Falls Creek VIC 3699. Tel: (03) 5758 1200. fcar@fallscreek.com.au. www.fallscreek.com.au
1.10 Fees:fees that apply under this Agreement as set out in the Membership Application Form.
1.11 Gym: the FCAR Community Gymnasium located at the St Falls West Building, 17 Bogong High Plains Road, Falls Creek VIC 3699.
1.12 Important Notice: the part of this Agreement described as this herein.
1.13 Member: a member of the FCAR Community Gymnasium.
1.14 Membership: another word used to refer to this Agreement.
1.15 Membership Application Form: the application form which is a part of this Agreement and linked to these Terms.
1.16 Membership Fees: the Fees you pay to access the Facilities and Services.
1.17 Rules: the rules that are referred to in clause 5.6.
1.18 Staffed Hours: the hours FCRM main office is staffed, being seven days from 8am to 5pm during the declared winter season, or 9am to 5pm Monday to Fridayand 10am to 3pm Saturday to Sunday during the green season.
1.19 Start Date: when this Agreement has been signed and Fees have been paid and receipted.
1.20 Terms: the part of this Agreement described as “Terms and Conditions”.
2 Joining, Access and Reciprocity2.1 When you join the Gym, you will need to give us information noted in the Declaration and provide us with evidence of your identification.
2.2 On joining we will give you an Access Code to allow you access to the Facilities and Services.
3 Cooling Off
3.1 If you change your mind after joining a Season or Annual Membership, you have 7 days to cool off or cancel your Membership from the Start Date. To be effective,you must let us know in writing at any time during this 7 day cooling off period. Your written cancellation can be given to us personally, by post or by email.
3.2 If you cancel your Membership under clause 3.1, we will charge you fees for any services or products already supplied but the Membership Fees will be refunded.4 General Use
4.1 The Falls Creek Community Gymnasium (the gym) is for the use of members only. Any user who has not paid a membership fee will be asked to leave thepremises.
4.2 Falls Creek Alpine Resort (FCAR) officers have the right to request proof of gym membership at any time. If proof of membership cannot be proven, FCAR officershave the right to evict the person(s)
4.3 It is compulsory that all gym users use a personal towel whilst using the gym.
4.4 It is compulsory that all gym users wipe down gym equipment post workout. Spray sanitisers are provided for your convenience.
4.5 FCAR is not responsible for any subsequent injury, illness or incident that occurs in the gym by users.
4.6 FCAR is not liable for behaviour, conduct or safety of the gym user at any time when exercising. FCAR recommends all gym users to not participate in physicalactivity until they have medical clearance (GP) to do so.
4.7 FCAR recommends all gym users conduct themselves in a sensible manner and respect other gym users when using equipment
4.8 FCAR recommends that you seek qualified instruction and medical advice before starting an exercise routine.
4.9 All equipment must be used in the correct manner for which it was designed and each user must give due regard to their own health and safety and to that ofothers.
4.10 FCAR will make every effort to maintain the equipment in good condition and in good working order. Any faults found must be reported immediately by using theabove mentioned numbers.
4.11 When any piece of equipment is out of order, no one must use any part of that piece of equipment until it is restored to full working order with any sign/hazard taperemoved.
4.12 Users must behave reasonably at all times. Unreasonable behaviour includes bad language/ racist remarks etc.
4.13 Water consumption is recommended whilst in the Gym. The use of other drinks such as protein or carbohydrate drinks are permitted, however these can be stickyand users leaving a residue of such drinks anywhere within the Gym, through drips/spills must clean this up thoroughly or lose the right to use such drinks in the gymagain.
4.14 Children under the age of 16 years of age must be supervised by an adult, who also must have a valid gym membership.
5 Health and Safety and Acceptable Conduct
5.1 Your physical condition
(a) When you sign this Agreement and each time you use the Facilities and Services, you must ensure you are in good physical condition and know of nomedical or other reason why you should not exercise. If unsure, you should not use the Facilities and Services until you have sought appropriate medicalguidance and been given written clearance by a certified medical practitioner.
(b) You agree to give us all relevant personal health and fitness information both before and during the course of any exercise program or other activity.
You also agree to complete Declaration on page 2 of the Membership Application Form. In some cases, responses you give will require that you getmedical guidance before exercising. You acknowledge that pre-exercise or other screening is no substitute for medical advice and does not guaranteeagainst injury or death.
(c) You promise that the information you give us will be true and accurate and not misleading in any way.
(d) You must not use the Facilities and Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health orsafety or that of other Members and others
.(e) We may suspend or cancel your Membership if we have reason to suspect that you have not complied with clause 5.1.5.2 Your Access Code
(a) You will need your Access Code each time you access the Facilities and Services.
(b) If you forget your Access Code you may access the Facilities and Services during Staffed Hours.
(c) You must not let anyone else into the Facilities and Services without approval from FCRM staff or disclose to anyone else your Access Code. If youbreak this term, your Membership may be suspended or cancelled.
5.3 OrientationYou may be required to participate in a Member orientation to familiarise you with the Facilities and Services before you use them.
5.4 Proper Use of EquipmentYou promise to take care of the Facilities and Services safely and properly. If you are unsure how to operate any equipment properly, you agree to ask FCAR staff first.
5.5 FCAR Community Gym Rules
(a) Rules apply to everyone using the Facilities and Services. They are usually displayed in the Gym.
(b) Rules form part of this Agreement so you must make sure you read, understand and follow them at all times.
(c) If you break any of the Rules we will respond in a way we consider fair and appropriate.
(d) You acknowledge that the distribution or use of illegal or performance enhancing drugs is prohibited and promise that you will not use or distribute thesesubstances in or near the Facilities and Services.
5.6 Illegal performance enhancing or other illicit substances
You acknowledge that the distribution or use of illegal or performance enhancing drugs is prohibited and promise that you will not use or distribute these substances in or nearthe Facilities and Services.
5.7 Commercial ActivityYou acknowledge that engaging in any commercial or business activities in the Facilities and Services, such as offering training services or selling goods in the Gym isprohibited unless we grant you written permission to do so. If we do give you written permission, we can revoke this at any time.
5.8 Action for inappropriate conductIf you behave in a risky or seriously inappropriate way, for example, if you threaten or harass others, damage equipment, distribute or use illicit substances, or train otherMembers without our authorisation, appropriate action will be taken. Your Membership may be immediately suspended or cancelled (with a Cancellation Fee potentially applying), you may be banned from joining the Facilities and Services and/or we may refer the matter to appropriate authorities. If your conduct causes us or another personcosts, loss or damages you agree to pay for these.
6 Security
6.1 The Gym may have CCTV security cameras recording 24-hours a day (except in bathrooms) and may have remote video guarding services. This system is used forsecurity purposes but does not guarantee against harm. You should contact FCRM staff if you have questions on this.
6.2 EmergenciesCall 000 in the event of an emergency.
6.3 Be cautiousYou must be cautious when entering, leaving the Gym and using the Facilities and Services. For example, ensure you have a fully-charged mobile phone with you.
6.4 Following DirectionsYou agree to follow any reasonable direction of FCAR staff relating to health, safety or security matters or related matters.
7 Privacy
7.1 Your personal informationFrom when you apply for Membership, you will need to provide us with, and we will have access to personal information about you, including information relating to yourhealth and finances.
7.2 General consentBy signing this Agreement, you consent to us collecting, using, disclosing and dealing with your personal information in accordance with our Privacy policy.
7.3 Up to date contact informationYou must tell us promptly if you change your contact details or if there is a change to other relevant personal information, including anything that may affect health or safety.
7.4 Consent to use your imageYou understand that photos, films, videos or audio recordings are sometimes taken of Members for promotional purposes. Your permission will first be obtained if this is done.
7.5 OtherAs noted in clause 6.1, CCTV camera recording may be used in the Gym (except in bathrooms).Members and guests are not allowed to take photos and/or videos in Gym unless specific permission is granted by the FCAR.
8 When you can end this Agreement
8.1 If you need to notify or tell us anything in writing under this clause:
(a) you can give this to us in person, by e mail or post;
(b) it would be useful to provide your Membership number (if you know it);
(c) you must also attach any required proof such as a medical certificate.
8.2 Cancelling for medical reasons(a) You can cancel your Membership at any time by telling us in writing if you cannot use the Facilities and Services because you have contracted a seriousillness or a permanent physical incapacity during the term of your Membership. This must be certified in writing by a medical practitioner. We may contact the doctor or otherprofessional for verification purposes.
(b) If you cancel under clause
8.2(a), we can charge you the Administration Fee.
8.3 Cancelling for reasons other than medical
(a) There will be no refund of the Membership Fees.
9 When can we end this Agreement
9.1 In addition to our other rights under this Agreement, we may cancel your Membership if you breach any obligation under this Agreement that can’t be fixed or if you breachan obligation that can be fixed but you choose not to in a reasonable time.
9.2 If we cancel your Membership under clause
9.1, you will be liable for Fees incurred, ie the Administration Fee. We may also recover costs, loss or damages caused byyour breach.
10 Fees
10.1 General
(a) The Fees you pay for your Membership and access to the Facilities and Services are outlined in the Membership Application Form.
(b) The Fees are due upfront to enable you access to the Facilities and Services.
10.2 Administration FeeThe Administration Fee will be incurred when your Season or Annual Membership is cancelled without any certified medical evidence of an illness or permanent injury. The Administration Fee is 10% of the Season or Annual Membership Fee.
10.3 Membership FeeMembership Fees are outlined in the Membership Application Form.
10.4 Cancellation Fee There is no refund for Membership Fees if you cancel your Membership for reasons other than medical that are evidenced by a certified medical practitioner.
11 Other Services
11.1 There may be other services, including personal training services, offered at the Gym by us, contractors, licensees and others which are offered separately and/or inaddition to services provided under this Agreement. You will need to pay applicable fees directly to the providers of the services and agree to separate terms and conditions.
11.2 We are not responsible for these third party provided services including fees or any associated costs, claims or refunds, unless they are provided by us.
12 Changes to your Agreement
12.1 We may sometimes be required to make changes to the Agreement, including our Rules. If we do this, we, will try to do so fairly and by giving you a chance to cancelyour Membership if you are adversely affected by the change and do not agree to it.
12.2 We will make reasonable efforts to tell you of any change in advance and when it will take effect.
13 Our Liability to You
13.1 Statutory Guarantees
(a) Under the ACL we guarantee that the Facilities and Services we supply are:
(i) provided with due care and skill; and(ii) reasonably for any purpose you have told us you are using the them for;
(b) Under certain legislative provisions, however, we can ask you to accept some limitations to the ACL guarantees.
(c) If you sign this Agreement, you agree, to the extent allowed by section 139A of the CCA, to exclude or modify our liability to you for death or injury from ourfailure to comply with ACL guarantees.
(d) This exclusion does not apply if your death or injury is caused by our “reckless conduct” (as defined in the CCA).
13.2 State based notices (Victoria)The ACL Exclusion Notice: “Warning Under the ACL and Fair Trading Act 2012” applies if attached to this Agreement and signed by you (Attachment B).
13.3 Other implied termsNothing in this Agreement excludes, restricts or modifies any terms, conditions, warranties, guarantees, rights or remedies which cannot lawfully be excluded, restricted ormodified. Otherwise, unless expressly included in this Agreement, all implied terms, conditions, warranties, guarantees, rights or remedies that can be lawfully excluded areexcluded. In particular, but subject to clause 13.1 and 13.2, we are not liable for death or injury caused by our negligence or breach of implied terms that services will beprovided with reasonable care and skill at common law. This does not exclude our liability for reckless conduct.
13.4 Loss of property
You promise not to unnecessarily bring valuables into the Gym and agree that it is not the obligation of FCAR to look after unattended property.
14 Your responsibility for damage
You agree to pay for any loss or damage to FCAR of the Facilities and Services caused by you or your guests through a wilful, wrongful or negligent act or as a result of your,or their, breach of the Agreement.
15 Closures
15.1 We may need to close the Facilities and Services for a period of time, for example, due to an emergency, and special event, or if required by a court order or by law.
15.2 If we close the Facilities and Services for less than 15 consecutive days, the Membership Fees will still apply. If the Facilities and Services are closed for longer than 15 consecutive days, the Membership will be extended by the same amount of days exceeding the first 15 consecutive days.
15.3 We will endeavour to inform you of any closures at the earliest opportunity.
16 Complaints and Feedback
16.1 If you have any concerns about the Facilities and Services or anything else in relation to your Membership, you should first raise it with FCAR staff.
16.2 If you are uncomfortable about approaching, or do not wish to approach FCAR staff in person, or are not happy with the response given, you may send a complaint to theFCAR Head Office at PO Box 50, Falls Creek VIC 3699, or by email to fcar@fallscreek.com.au.
16.3 Complains will be dealt with in accordance with the Complaints policy.
17 General Legal Matters
17.1 Unexpected events
We are not responsible if Members cannot use our Gym because of an event caused by a natural force (such as a fire or a flood) or a road or building closure or something similar beyond our reasonable control. If this continues for more than 30 days, then either you or we may cancel this Agreement immediately by written notice. No Fee will apply.
17.2 Severability
If a court decides that any part of this Agreement is or becomes illegal, void or unenforceable, that part is deleted and this does not invalidate the rest of this Agreement.
17.3 Waiver
If we do not enforce our rights under this Agreement at any time, it does not mean that we may not do so in future.
17.4 Entire agreement
You agree that we have not made any representations or promises that you have relied that are not in this Agreement.
17.5 Applicable lawThe law of the State of Victoria applies to this Agreement.
