Terms and conditions — Pilates Barre & Movement Reformer Studio

TERMS AND CONDITIONS

These Terms and Conditions, together with any Membership Form, Screening Tool, Waiver (this Agreement) sets out the terms of which you or, where applicable, the person for whom you are the parent or guardian, (the Member, you, your) will obtain services, including the Activities, from Pilates Barre and Movement ABN 84 697 160 890 (we, us, our).

Participating in the Activities is potentially dangerous and may expose you to risks, including accidents, serious injury, illness or even death. We use our best endeavours to protect you but there remains a possibility of an accident causing injury, illness, disability, death or property damage. You participate in the Activities at your own risk and acknowledge that you have read the Terms and Conditions which describe your rights under Australian Consumer Laws, and how we limit liability to you.

You acknowledge and agree that if you decide to cancel and terminate this Agreement, no refund will be payable to you by us for any unused period of your Membership Plan Minimum Term. There will be no refunds given for any unused Classes on your Class Pack.

We may change these Terms and Conditions at any time by updating the Terms and Conditions page on our website, and your ordering of the Activities or using the Studio following such an upådate will represent an agreement by you to be bound by the Terms and Conditions as amended. Changes to these Terms and Conditions will only apply to Membership Forms entered into after the change occurs. However, we will only increase your Fees in accordance with clause 5.2 below.

Please contact us at hellopilatesbarreandmovement@outlook.com for any questions or to send any Notices under these Terms.

1 MEMBERSHIP FORM, THIS AGREEMENT

(a) These Terms and Conditions will apply to all the Member’s dealings with us, including being incorporated in all agreements or quotations under which we provide services to the Member (each a Membership Form) together with any additional terms included in such a Membership Form (provided such additional terms are recorded in writing).

(b) The Member will be taken to have accepted this Agreement if the Member accepts a Membership Form, or if the Member orders, accepts or pays for any Activities provided by us after receiving or becoming aware of this Agreement or these Terms and Conditions.

2 TERM

This Agreement commences on the Commencement Date and continues:

(a) for the duration of the Minimum Term (being 12 weeks unless otherwise specified in the Membership Form);

(b) for the duration of the Minimum Term, and then automatically for 12 week periods unless terminated by the Member.

After the Initial Minimum Term, a Member can opt out and cancel or change membership with 3 weeks’ written notice after the initial Minimum Term.

3 PARTICIPANT’S OBLIGATIONS

3.1 CAPACITY AND AGE

(a) The Member warrants that they:

(i) have the legal capacity and are of sufficient age to enter into a binding contract with us; and/or;

(ii) are the parent or guardian of the Member who consents to this Agreement on behalf of the Member.

(b) The Member acknowledges and agrees that:

(i) they must be at least 16 years of age to participate in any Activities and can only participate in such Activities under direct parental supervision;

(ii) at least 18 years of age to do unsupervised Activities.

(iii) Young children can accompany a Member to a “Mini and Me Class”. The Member assumes full responsibility for supervision of children at the Studio during Mini and Me Classes.

3.2 PRE-ACTIVITY OBLIGATIONS

The Member warrants that, on or prior to the Commencement Date, they:

(a) will complete the Screening Tool located in Appendix A and;

(i) if they answer ‘yes’ to any of the questions contained in the Screening Tool, obtain a doctor’s certificate stating that they are allowed to participate in the Activities; or

(ii) if they answer ‘yes’ to any of the questions contained in the Screening Tool and cannot obtain a doctor’s certificate stating that they are allowed to participate in the Activities, agree that they participate in the Activities at their own risk, if permitted to do so by us;

(b) have read and agreed to the Waiver located in Appendix B.

3.3 GENERAL

(a) The Member must provide us with all documentation, information and assistance reasonably required for us to provide the Activities;

(b) The Member must participate in any briefings and/or introductions as notified by us prior to engaging in any Activities; and

(c) If you are the Member’s parent or guardian and the Member is under the age of 18, you must ensure that the Member complies with these terms, and agree to the terms of this Agreement in respect of the Member.

3.4 INSTRUCTIONS AND SAFETY

The Member warrants that they:

(a) will undertake an instructional consultation with our Personnel prior to using the Studio or engaging in the Activities;

(b) comply with any safety guidelines, instructions and/or rules that we provide;

(c) stop participating in any Activities, and alert us, if the Member has any concerns about their health or safety or if they start feeling dizzy, faint, unwell or feel any unusual pain during the Activities; and

(d) be responsible for their own safety and that of any person under the age of 18 years for whom they have assumed responsibility.

3.5 HEALTH AND STATE OF THE PARTICIPANT

The Member warrants that they:

(a) do not have a health condition which might have the effect of making it more likely that they will be involved in an accident or injury while participating in the Activities (Condition);

(b) will notify us immediately if they develop a Condition;

(d) are aware that the Activities, even when no accident occurs, may involve risk to health;

(e) will not participate in the Activities under the influence of drugs, alcohol or illicit substances;

(f) will not participate in the Activities, if ill, injured or feeling unwell; and

(g) will warm-up prior to participating in the Activities.

3.6 STUDIO USE

The Member must:

(a) not use abusive, offensive or threatening language or behaviour while at the Studio;

(b) at all times wear clothing and socks appropriate to the Activities they are undertaking and/or as instructed by us from time to time;

(d) not smoke, consume alcohol, drugs at the Studio;

(e) not use the equipment and/or facilities without seeking instructions from us if the Member is not familiar with the equipment and/or facilities.

3.7 POSSESSIONS

(a) The Member is responsible for their possessions while at the Studio. We will not be liable if any of the Member’s possessions are lost and/or stolen at the Studio and Members use the facilities at their own risk.

3.8 CARPARK

The Members understands and warrants that it uses any carpark facilities unsupervised and at their own risk. We will not be liable for any loss or damage suffered by the Member in connection with the Member’s use of any carpark to the maximum extent permitted under Australian Consumer Laws.

3.9 GUESTS

You may only bring guests to the Studio if you obtain the permission of us to do so.

4 CLASSES AND STUDIO AVAILABILITY

4.1 CLASSES

The Member acknowledges and agrees that:

(a) unless directed otherwise, they are required to book their Classes in advance via our website/app;

(b) they may cancel attendance at Classes and agree to comply with our cancellation procedures and charges may be incurred for late cancellation; and

(c) any missed Classes will be forfeited by the Member and we will not be required to reschedule such Classes. A no show fee will be charged to the Member as set out on the Membership Form. If a Member is late to a Class, a no show fee may be charged after 10mins after doors are locked.

4.2 AVAILABILITY

(a) While we endeavour to ensure that Classes and equipment are available during the advertised opening hours, on occasion, Classes may be full, unavailable or no longer offered and we will not be liable to the Member in such circumstances.

(b) We reserve the right to change the Classes and times offered at our absolute discretion without notice to the Member.

(c) The Member acknowledges that during public holidays and over the Christmas and New Year breaks, our classes are reduced in frequency and/or unavailable. This circumstance has been reflected in our Fees and the Member is not entitled to any fee discounts on this account.

5 PAYMENT

5.1 FEES

The Member must pay the Fees, in the amounts and at the times set out in the Membership Form or as otherwise agreed in writing.

5.2 PAYMENT

The Member:

(a) agrees to enter into any direct debit terms set out on our website through MindBody or other third party provider and authorises us to charge the Member in advance;

(b) acknowledges and agrees that each direct debit payment may incur transaction fees as notified;

(d) must give us notice of at least 48 hours if there are any changes to the Member’s credit card details; and

(e) acknowledges and agrees that if a debit is returned by the Member’s financial institution as ‘unpaid’ then we will suspend your Studio access until the amounts payable are received.

5.3 UPFRONT PAYMENT – CLASS PACKS

If the purchases a Class Pack, the Member must pay for all goods and services upfront at the time of booking using the payment method specified.

5.4 FEE INCREASES

We reserve the right to increase the Fees at any time after the period of your initial Membership Plan has ended by giving you a 30-day notice of such increase.

5.5 NON-REFUNDABLE FEES

(a) Membership Fees for Membership Plans and Class Packs are non-refundable.

(b) If you cancel this Agreement prior to the expiration of the Minimum Term you will forfeit any unused period and it is non-refundable.

5.6 INVOICES

If we issue an invoice to the Member, payment must be made by the time(s) specified in such invoice.

5.7 GST

Unless otherwise indicated, amounts stated in a Membership Form include GST.

6 DEBT RECOVERY

If you do not pay an amount due under this Agreement on or before the date that it is due:

(a) we may seek to recover the amount due by referring the matter to debt collectors; and

(b) you must reimburse us or any costs it incurs, including any legal and debt collector costs, in recovering the amount due or enforcing any of its rights under this Agreement.

7 SUSPENSION OF MEMBERSHIP

(a) You may suspend your Membership Plan for a maximum of 3 weeks at a time so long as the total time suspended within a 12 month period does not exceed 12 weeks.

(b) To suspend your Membership Plan you must:

(i) notify us in writing at least three week’s prior to the date of suspension; and

(ii) not have any outstanding Fees to pay.

(c) 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.

8 NON-TRANSFER OF MEMBERSHIP

You cannot transfer your Intro Offer, Single class pass, Class Packs or Membership Plan to another person.

9 LIABILITY AND INDEMNITIES

9.1 NO RELIANCE

The Member acknowledges that in deciding to pay for the Activities and in entering into this Agreement the Member has not relied on our skill or judgment and that the Member has satisfied itself as to the condition and suitability of the Studio and/or Activities and their fitness for the Member’s purpose.

9.2 LIABILITY

To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Member to us in the last 3 months preceding the date of the event giving rise to the relevant liability.

9.3 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by us, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

9.4 RISK

(a) Participating in the Activities involves the potential for injury and the Member is participating in any Activities at their own risk with knowledge of the dangers involved, including but not limited to, physical injury, muscle and ligament strains, illness, bruising, falls, injury through equipment failure and death.

(b) The Member acknowledges that while we use our best endeavours to ensure that the Studio and any facilities and/or equipment are free of faults and safety issues, there may be instances of equipment failure, and/or equipment and other objects may be left in incorrect positions by other Studio users. The Member agrees that we will not be liable for any loss or damage arising out of such circumstances.

(c) The Member will bear all risk of loss or destruction of, or damage to, any equipment and/or other property and/or people arising out or contributed to by their participation in the Activities.

9.5 INDEMNITY

The Member indemnifies us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:

(a) any breach of this Agreement by the Member;

(b) any negligent, fraudulent or criminal act or omission of the Member; or

10 WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.

(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in theCompetition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11 PRIVACY

(a) You agree to be bound by our Privacy Policy, which is available on our website.

(b) You consent to us taking images and recording video footage of you for the following purposes only:

(i) promotion of the Studio, Studio events and advertising the associated products and services; and

(ii) publication on social media platforms or in newspapers, in trade and other journals and on websites and the internet for the purposes of professional advancement,

in accordance with our Privacy Policy.

12 CANCELLATION

12.1 BY US

We may terminate this Agreement in whole or in part immediately by written notice to the Member if the Member is in breach of any term of this Agreement.

12.2 NOTICE – ALL MEMBERS

If you wish to cancel this Agreement, you must provide at least 3 weeks’ written notice to us (Notice).

12.3 NO REFUND

All Membership Plans are non-refundable and we will not refund you for any unused period of your Membership Plan Minimum Term.

12.4 SURVIVAL

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.

13 DISPUTE RESOLUTION

(a) A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b) A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

14 NOTICES

(a) A notice or other communication to a party under this Agreement must be:

(i) in writing and in English; and

(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

(ii) when replied to by the other party,

whichever is earlier.

15 GENERAL

15.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

15.2 AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

15.3 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and agreed by the party ∂ƒgranting the waiver.

15.4 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

15.5 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

15.6 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

15.7 COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

15.8 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

15.9 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

15.10 INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (gender) words indicating a gender includes the corresponding words of any other gender;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(i) (includes) the word “includes” and similar words in any form is not a word of limitation;

(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and

(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.

16 DEFINITIONS

In addition to capitalised terms defined in the Agreement Details above, capitalised terms used in this agreement will have the following meanings:

Term

Meaning

Activities

means the Activities listed in the Membership Form to be provided to the Member by us.

Commencement Date

has the meaning set out in the Membership Form.

Fees

has the meaning set out in the Membership Form.

Studio

means the venue specified in the Membership Form.

Laws

mean any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Activities are performed or received and includes any industry codes of conduct.

Member, you, your

has the meaning set out in the Membership Form and includes the parent or guardian of the Member if the Member is under 18 years of age.

Membership Form

has the meaning set out in clause 1(a) of these Terms and Conditions.

Membership Plan

has the meaning set out in the Membership Form and relates to the contract length and payment terms a Member has selected.

Personnel

means, in respect of a party, that party’s officers, employees, contractors (including subcontractors) and agents.

Studio

means the venue specified in the Membership Form.

17 INTERPRETATION

In this Agreement, the following rules of interpretation apply:

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (gender) words indicating a gender includes the corresponding words of any other gender;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, anassociation, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(f) (this Agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (currency) a reference to “$” or “dollar” is to Australian currency;

(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and

(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

APPENDIX A – SCREENING TOOL

The Screening Tool below is intended for general use only and in no way guarantees against harm to health injury or death. We accept no liability for any loss, damage or injury that may arise from any person acting on any information contained in this tool.

1. Has your doctor ever told you that you have a heart condition or have you ever suffered a stroke?

Yes

2. Do you ever experience unexplained pains in your chest at rest or during physical activity/exercise?

Yes

3. Do you ever feel faint or have spells of dizziness during physical activity/exercise that causes you to lose balance?

Yes

4. Have you had an asthma attack requiring immediate medical attention at any time over the last 12 months?

Yes

5. If you have diabetes (type I or type II) have you had trouble controlling your blood glucose in the last 3 months?

Yes

6. Do you have any diagnosed muscle, bone or joint problems that you have been told could be made worse by participating in physical activity/exercise?

Yes

7. Do you have any other medical condition(s) that may make it dangerous for you to participate in physical activity/exercise?

Yes

8. Are you pregnant or have you given birth within the last 12 months?

Yes

9. Do you know of any other reason why you should not participate in physical activity? If so please list below

Yes

IF YOU ANSWERED ‘YES’ to any of the above questions, please seek guidance from your GP or appropriate allied health professional and return with a copy of the doctor’s clearance letter prior to starting exercising.

APPENDIX B – AGREEMENT AND WAIVER

PILATES BARRE AND MOVEMENT WAIVER

1. You request to participate in the Activities set out in your Membership Agreement which includes this Waiver (Agreement) that are provided by PILATES BARRE AND MOVEMENT ABN 84 697 160 890 or third parties hired by us.

2. You understand and acknowledge that the Activities, including but not limited to access to the Studio and equipment as well as classes, programs, and events held by us may expose you to risk, including accidents, injury, illness or even death. You assume all risk of injuries associated with participation in the Activities, including but not limited to, falls, contact with other participants, equipment failure, physical risks inherent in exercise, the effects of the weather, including high heat and/or humidity and the loss of your personal property and exclude us from liability.

3. Because physical exercise can be strenuous and subject you to risk of serious injury, we urge you to obtain a physical examination from a doctor before using any equipment or participating in any Activities. You agree that when you use the Studio, engage in the Activities, on the premises or off the premises, including at an event, you do so entirely at your own risk.

4. You warrant and represent that you have no injuries, physical restrictions, disabilities or predispositions to sickness or injury (Conditions) that may affect your participation in the Activities or that if you are aware of such Conditions, you participate in any activities provided by us entirely at your own risk.

5. You exclude us and our officers, employees and contractors, the organisers, sponsors, other participants and any other persons involved in your participation in the Activities (Releasees) from any demand, claim, or other proceeding in relation to any injury or death or loss or damage to personal property in connection with your participation in the Activities, whether or not caused by the negligence of a Releasee.

6. You agree to indemnify each Releasee in relation to any demand, claim or proceeding that may be brought in connection with your participation in the Activities where circumstances giving rise to such a demand, claim, or proceeding were caused or contributed to by you or your breach of our Membership Form and Agreement.

7. You agree that should any part of this Agreement and waiver be found by a court of law to be against public policy or in violation of any state statute or case precedence, then only that wording is removed and the remainder of this Agreement and waiver will remain in full force.