By clicking on “I agree to the above Membership Agreement”, you acknowledge and agree:
• You have been provided a copy of this Agreement and have read, understood and agree with all terms and conditions;
• You are physically and medically sound to undertake any activity at ONYX. You use the facilities at your sole risk and responsibility, and you are aware that exercise is physically demanding and participation in some activities may pose a risk to your health;
• You authorise EziDebit Pty Ltd or other debiting agent nominated by ONYX from time to time to directly debit the nominated bank account, or credit card for any instalments or fees due under the terms and conditions of this Agreement; and
• You are entering into a legally binding agreement, where the terms and conditions of this Agreement can and/or will be used in the event of a discrepancy.
Once the Agreement is accepted, your Membership will commence on the Membership Start Date.
2. DEFINITIONS
24/7 means 24 hours per day, 7 days per week
Access Pass means the key fob that allows check in to the Gym
Access Pass Fee means the fee payable to receive an access pass
Agreement means this Membership Agreement including all terms and conditions
Ezidebit means our third-party debiting agent, Ezidebit Pty Ltd ABN: 67 096 902 813
Check in means gaining entry to the Gym either using the Bluetooth check in on the ONYX App or access pass
Facilities and Services means the ONYX premises and all equipment, machinery, amenities, products, classes and all other services available at ONYX
Fees means all fees payable under this Agreement
Gym means the ONYX gym/club
Joining Fee means the fee payable when initially entering into the Agreement
Junior Member means any Member who is aged 16 or 17 years old
Member means any person that has entered into an Agreement with ONYX
Membership means your Agreement with ONYX
Membership Fee means the ongoing fortnightly fee payable for your Membership
Membership Hold means the Membership is temporarily placed on hold
Membership Start Date means the date this Agreement commences
Minimum Term means the minimum amount of time of the Membership
ONYX means ONYX Gym Pty Ltd, ABN: 17 653 459 717
ONYX App means the mobile application available for Members to use, which also includes a Bluetooth feature to check in
Parent/Guardian means the lawful parent or guardian of a Junior Member
Staffed Hours means the times staff are present and working at the Gym. These times may change from time to time
Tailgate means following another Member into the Gym without checking in to the Gym, either via Bluetooth check in or access pass
Us/We/Our means ONYX Gym Pty Ltd, ABN: 17 653 459 717
You means the person specified as the Member in this Agreement.
3. COOLING OFF
If you change your mind for any reason before close of business on the seventh (7th) day following the Membership Start Date, you may cancel your Membership and receive a full refund for any fees paid.
You will be required to either advise us in writing or come into the Gym during staffed hours to cancel. If you have purchased an access pass, you will also be required to return it to the Gym in person. If you fail to return the access pass within the 7-day period, all fees will be refunded except for the access pass fee.
If you wish to cancel your Membership outside the 7-day period, the cancellation conditions of Clause 11 of this Agreement apply.
4. MINIMUM TERM
The minimum term of the Membership is set out in the type of Membership purchased and is either a:
a. 12-month minimum term
b. 6-month minimum term
c. 1-month minimum term
All direct debit Memberships require payment of membership fees for the minimum term, followed by ongoing fortnightly payments until the Membership is cancelled. For example, a 6-month membership requires a minimum of 13 fortnightly payments, which is then followed by ongoing fortnightly payments until the Membership is cancelled.
5. MEMBERSHIP RENEWAL
After the minimum term for all direct debit Memberships, this Agreement will continue on a rolling fortnightly basis until you request cancellation of Membership under the conditions of Clause 11 of this Agreement.
All paid in full 12-month Memberships automatically terminate at the end of the 12-month period. If you wish to renew or continue your membership, you will be required to request this either in person or in writing and select the new membership you wish to proceed with.
6. JUNIOR MEMBERS
All Members aged 16 or 17 years old are considered to be Junior Members and both the Junior Member and their Parent/Guardian are required to accept the Agreement. By accepting on behalf of a child, the Parent/Guardian agrees to be responsible for ensuring the Junior Member exercises safely, pays their Membership fees and follows all terms and conditions of the Agreement.
Any person under the age of 16 is unfortunately unable to join the Gym due to safety reasons, as the Gym is not staffed during certain hours and supervision cannot be provided during these times.
7. GYM ACCESS
Upon joining the Gym, you will be required to have a photo taken of you for safety and security reasons, and it will be stored in accordance with our Privacy Policy. The photo will not be used for any other purpose, nor will it be shared with any other party unless consent is provided by you.
You will be provided the option to either purchase an access pass to enter the Gym or download the ONYX app which will provide Bluetooth access to the Gym. If you lose your access pass, you must advise ONYX as soon as possible to ensure the pass is deactivated and cannot be used by anyone else. A replacement pass may be purchased from the reception at the Gym.
You are required to check in with either your access pass or ONYX app upon entry to the Gym at every visit for safety, security and insurance purposes. You must not allow anyone into the Gym or allow any other person to use your access pass or ONYX app to gain entry to the Gym. You must also ensure that other people do not tailgate or follow you into the Gym without checking in. In cases of tailgating, your Membership may be suspended, cancelled or you may be fined up to $250.
You will also be required to complete an induction with a staff member prior to using the Gym. The induction will ensure you are familiar with the facilities and services and are advised of all safety requirements.
8. PRIVACY
Our Privacy Policy
From when you apply for a Membership, ONYX will have access to personal information about you, such as information relating to your health and finances. We will protect this information and only use, disclose, or deal with this information in accordance with our Privacy Policy. The latest version of the Privacy Policy is available on our website.
Please keep your contact details up to date
You agree to tell us promptly if you change your address, phone number, email, bank account, credit card, or if there is a change to any other personal information relevant to your Membership. This includes any matters that affect the health or safety of you or others.
9. HEALTH & SAFETY
9.1 Your physical condition
a) You are required to disclose all relevant personal health and fitness information both before (through our pre-exercise questionnaire) and during the term of your Membership.
b) You agree that any information you disclose to us will be true and accurate and not misleading in any way. You must not attend and use the facilities and services whilst you are suffering from any illness, disease, injury, or other condition that could present a risk to the health or safety of other Members or yourself. If you are unsure, you should not use the facilities and services until you have sought appropriate medical guidance and approval.
c) In certain circumstances, you may be required to obtain medical guidance before commencing exercising. You acknowledge that the pre-exercise questionnaire or other screening is no substitute for medical advice and does not guarantee against injury or death.
9.2 Proper use of equipment
You agree to take care whilst using the facilities and services appropriately and safely. You must use all equipment in a manner that is not negligent and will not cause damage to equipment (excluding fair wear and tear). For example, intentionally dropping equipment or hitting them together. If you are not sure how to operate any equipment properly, please ask a staff member before you use it.
9.3 Gym Rules
You agree to follow all ONYX Gym Rules posted around the Gym and/or communicated by staff. The key Gym Rules are listed below:
a) Towels must be used during all exercise to maintain hygiene and safety standards.
b) All Members must wear suitable sports clothing, including fully enclosed sports shoes to be always worn whilst exercising.
c) All equipment is to be put away after use, as well as all weight plates removed from bars and plate loaded machines.
d) Weights and equipment are not to be unnecessarily dropped, thrown, or hit together.
e) All Members must be courteous and treat each other with respect, this includes other Members, staff, or any other person in the Gym.
We may occasionally update our Gym Rules to further promote health and safety, or to make other improvements. We will seek to advise all Members of any changes, although we expect you to stay familiarised with the current version of our Rules by reading our signage in the Gym on a regular basis.
If you breach any of our Gym Rules, the action we take will be at our reasonable discretion and we will try to exercise this right fairly by giving you a warning if we consider the failure to be less serious. In this regard however, you acknowledge that health and safety of all users, and protection of property is very important. Accordingly, if we reasonably consider the failure to follow our Gym Rules to be serious or persistent, we may suspend or even cancel your Membership with immediate effect.
9.4 Refusal of entry
We can refuse you entry to the Gym or cancel your Membership immediately if you behave in a way that poses a serious risk to yourself or others, such as threatening or harassing others, deliberately or recklessly damaging equipment or facilities, or if you use, distribute, or sell illegal or performance enhancing drugs at the Gym.
9.5 24 Hour CCTV
ONYX has CCTV security cameras recording in and around the Gym on a 24/7 basis (except in bathrooms) and may have remote video or other guarding services. The CCTV is used for security purposes but does not guarantee against harm.
The Gym also has emergency duress buttons for safety and security reasons. These buttons allow Members to alert a security company in the case of emergencies, such as a medical emergency or a physical threat. You agree to only use the emergency duress buttons in an emergency.
If you deliberately use emergency duress buttons inappropriately, you agree to pay for any costs, loss or damages incurred because of this inappropriate use.
9.6 Lockers
We provide lockers for you to use whilst exercising and using our facilities and services. However, you should not unnecessarily bring valuables to the Gym.
ONYX cannot accept responsibility for any loss or damage to your belongings whilst you are at the Gym, even if someone breaks into your locker. If you leave belongings in a locker overnight, we may remove them, and you can claim them from our staff at reception in the Gym. However, items not claimed within 30 days are donated to charity.
Other than as described above, maintaining the security of unattended property in the facility is not part of the service ONYX provides under this Agreement. Accordingly, if you choose not to use a locker to securely store your property and leave it unattended in the Gym, we will not be responsible for any loss or damage to your property that occurs.
9.7 Parking
Designated ONYX car parking is available for use by Members, as well as out of business hours car parking. Signage is displayed in the car park and at the Gym indicating the spaces that are assigned to ONYX, as well as details of out of business hours parking.
Parking is only to be used whilst you are training at the Gym. You agree to use the car park at your own risk. We are not liable for any loss or damage to your vehicle or its contents whilst parked at the car park.
You agree not use any car space that is not a designated ONYX car space during business hours.
10. MEMBERSHIP HOLD
You may temporarily suspend your Membership and your regular Membership fees for any reason, provided your Membership fees are all paid and up to date. Membership holds must be requested in person at the Gym and can be placed for a minimum of 1 week and a maximum (at no cost) as per the below:
a. 12-month minimum term: 10 weeks hold per 12-month period
b. 6-month minimum term: 4 weeks hold per 12-month period
c. 1-month minimum term: 2 weeks hold per 12-month period
Additional membership hold periods can be requested; however, they are charged at a fee of $5 per week for all membership types. This fee may be waived in cases of medical or hardship reasons. In these circumstances, you are to discuss this directly with a staff member and we will decide whether to waive the fee at our discretion.
Whilst Memberships are on hold, the minimum term of the Membership will be extended for the same time as the membership hold period.
11. CANCELLATION OF MEMBERSHIP
All requests for cancellation of Membership must be made by you, in writing and will be confirmed verbally with our staff.
11.1 Cancellation during the Minimum Term
You may cancel your Membership during the minimum term for the following reasons:
a) Medical: If you have contracted a serious illness or are suffering from physical incapacity to use the Gym for a minimum period of 3 months. You will be required to provide written certification from your doctor or other medical professional to confirm your physical incapacity for at least 3 months. You agree that we may contact your doctor or medical professional for verification purposes.
b) Relocation: If you have moved your permanent residence more than 20 kilometres from the Gym. You will be required to provide evidence of your new address such as your driver’s licence, a utility bill, or one-way plane ticket if you are moving interstate or overseas.
c) Change of Workplace: If your permanent residence is more than 20 kilometres from the Gym and you are no longer employed, or due to end employment at your current workplace. You will be required to provide written confirmation from your employer that you are/will be no longer employed with them, including your last day of employment. You agree that we may contact your employer for verification purposes.
d) Fair Play: If you have genuinely shown that you have been using the facilities and services by attending the Gym a total of 13 times in the last 30 days (average of 3 times per week). You will not be required to provide any evidence, as this information will be obtained from our member management system every time you check in to the Gym.
e) Pay-out the remainder of minimum term: If you do not meet any of the above reasons, you may cancel your Membership without reason by paying out all fees payable for the remainder of the minimum term of your Agreement. This option is only applicable when the remainder of the minimum term is 4 weeks or greater.
11.2 Cancellation on or after expiry of the Minimum Term
You may cancel your Membership on or after the expiry of the minimum term with no supporting documentation required.
11.3 Notice of Cancellation
All requests for cancellation of Membership must be provided with the following minimum notice periods:
a) ONYX Black Membership: Four (4) weeks’ notice from the date the cancellation request is made.
b) ONYX Platinum Membership: Four (4) weeks’ notice from the date the cancellation request is made.
c) ONYX Gold Membership: Four (4) weeks’ notice from the date the cancellation request is made.
d) ONYX Black Paid in Full Membership: Not applicable.
Note: Cancellation requests during the minimum term can only be accepted if you are eligible and all supporting documentation is received.
ONYX reserves the right to deny a cancellation request if you do not comply with the above conditions.
All outstanding/overdue fees are to be paid in order to cancel the Membership. No refunds are issued for 12-month paid in full Memberships.
12. FEES PAYABLE
The fees payable are set out in this Agreement. This clause sets out further rights and obligations that apply in relation to the fees.
If you fail to make any payment when due, we can suspend your Membership and refuse you access to the Gym until all outstanding fees have been paid, in addition to our other rights under this Agreement. Fees and charges continue to accrue during the suspension.
12.1 Joining fee
We may charge you a joining fee to cover the set-up costs for a new Membership. The joining fee is not refundable except in the case of cancellation during the cooling off period.
12.2 Access pass fee
We may charge you an access pass fee if you choose to use an access pass instead of the ONYX app to check in to the Gym. You will also be charged for subsequent access pass fees if you require a replacement access pass due to loss. The access pass fee is not refundable except in the case of cancellation and return of access pass during the cooling off period.
12.3 Membership fees
If your Membership is for a 12-month paid in full Membership, all Membership fees are required to be paid up front when you accept the Agreement. All other Membership types are paid fortnightly by direct debit payments. All fees are inclusive of GST and we do not charge or pass on any payment processing fees from our third party debiting agent.
If your Membership Start Date begins after the first day of the direct debit payment period, your first payment will only be charged for the pro rata days for the remainder of the direct debit payment period. For example, if the Membership Start Date is 8 days after the first day of the direct debit payment period, the Member will be charged a pro rata of 6 days (remaining in the fortnight).
12.4 Membership fee increases
We will not increase your membership fees during the minimum term. However, we may increase your membership fees or any other fees with effect any time after that. We will advise of any fee increases in writing at least sixty (60) days in advance. Where we have done so, you authorise us to increase any debits of fees from your nominated account in line with this increase. We will not use this right to vary the terms of any special offer which applies to you.
13. DIRECT DEBIT PAYMENTS
13.1 Authorisation to deduct fees
By nominating a credit card or bank account, you are authorising us to deduct from that account all fees and other charges for which you may be responsible under this Agreement via EziDebit. Accordingly, it is essential that you keep your account details up to date.
13.2 If your payment is late or rejected
You are responsible for ensuring that there is enough money in your nominated account on the usual payment day, or the next working day if that falls on a day when banks do not process payments.
Any bank fees charged to us because of a rejection when we attempt to collect payments from you may be charged directly to you, by us or by EziDebit.
If a payment remains outstanding, you agree that unless we are in breach of our obligations under this Agreement, we or EziDebit may continue to debit the nominated account for the total amount due without notice to you. If the amount owing is more than one fortnightly direct debit payment, we will seek to contact you first.
13.3 Ezidebit
If you choose to pay fees by direct debit, then this will be through Ezidebit who is not a party to this Agreement and whose only role is to provide direct debit services. We will provide you with a copy of the terms and conditions that apply to the direct debit services. Those terms and conditions are entirely separate to this Agreement, and you may have rights and obligations under those terms and conditions. As such, Ezidebit acting in its capacity has no liability to you in connection with your involvement in exercise activities under this Agreement.
14. OTHER THIRD-PARTY PROVIDERS
We will seek to ensure that contractors and other authorised persons who provide services at the Gym are appropriately qualified before granting them access. Examples of providers may include coaches, physiotherapists, masseurs and personal trainers who may offer additional services from the Gym that are not included in your Agreement.
Please note that these providers are not employed by us, even if they happen to be wearing clothing that displays the ONYX name and logo. You will know that they are outside providers because they will require payment of their fee direct from you when you engage them.
ONYX is not liable for any injury, loss or other claims arising from breach of contract, negligence or otherwise that are suffered by you in connection with any third-party providers, other than to the extent caused by our negligence. In addition, you release us and hold us harmless in relation to any such claims.
We have no responsibility in respect of the fees that you must pay directly to these providers, nor for any associated costs or refunds. However, please advise us if you have any issues with a provider and we will try to help if we can.
Nothing in this clause limits our liability for the actions of our employees or agents.
15. OTHER PRODUCTS & SERVICES
There may be other products and services offered at the Gym that do not form part of your Membership but are available for you to purchase separately. These are not part of the services provided under your Membership and you will be advised at the time if any additional terms apply to these products or services.
16. LIABILITY
16.1 Statutory guarantees
ACL: The Australian Consumer Law (ACL) contained in the Competition and Consumer Act 2010 (Cth) (CCA) provides certain guarantees in sections 60 to 62 (statutory guarantees) which generally require that services supplied to you:
a) Are rendered with due care and skill,
b) Are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier and might reasonably be expected to achieve any result you have made known to the supplier and
c) Are supplied within a reasonable time (when no time is set).
Permitted exclusion: However, the CCA permits a supplier of recreational services to ask you to accept some limitations on those statutory guarantees. Accordingly, to the extent permitted by section 139A of the CCA, you acknowledge and agree that we exclude all liability to you for death or injury resulting from a failure by us to comply with any statutory guarantee.
In the previous sentence, “injury” means:
• Physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
• The contraction, aggravation or acceleration of a disease; or
• The coming into existence, the aggravation, acceleration or recurrence of any condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to you that is or may be harmful or disadvantageous to you or the community, or that may result in harm or disadvantage to you or the community.
Reckless conduct: This exclusion of liability does not apply if you have suffered any significant personal injury that is caused by our reckless conduct (within the meaning given to those terms by the CCA).
16.2 General exclusions
Please note that nothing in this Agreement excludes, restricts or modifies any term, condition, warranty, guarantee, right or remedy (including under a statutory guarantee) which cannot lawfully be excluded, restricted or modified.
Otherwise, and except as expressly included in this Agreement, all implied terms, conditions, warranties, rights, or other additional obligations that can be lawfully excluded, are excluded from this Agreement. In particular, but subject to the preceding paragraph, we are not liable for:
• Negligence; or
• Breach of terms implied that services will be provided with reasonable care and skill.
At common law that in either case results in your death or injury (as defined in the paragraph above in connection with or under this Agreement, but to avoid doubt we do not exclude liability for our reckless conduct.
16.3 Your responsibility for damage
You agree to pay for any damage to the Gym caused by you through a wilful act or negligence.
17. OTHER CONDITIONS
17.1 Unexpected events
We are not liable if you cannot use our facilities and services due to anything beyond our reasonable control. If that failure or delay continues for more than 30 days, then either you or we can cancel this Agreement with immediate effect by telling the other party in writing. We reserve the right to make part or all of the Gym and/or facilities and services unavailable for up to two (2) weeks during each calendar year to undertake maintenance, repairs or improvements, in which case we will extend your Membership by the time you are unable to use the facilities and services.
17.2 Our logo and intellectual property
No rights in relation to our logo, trademarks or any other intellectual property rights associated with our business, techniques, exercise programs or classes are granted to you under this Agreement, except that any exercise program created for you may be used while you are a Member for the purpose of your exercise activities.
17.3 Transferring this Agreement
We can transfer the rights or benefit under this Agreement or sub-contract our obligations under this Agreement to a third party at any time without notice to you, but in doing so we will ensure that the transferee agrees to honour the terms of your Membership.
17.4 Severability and waiver
If a court finds that any part of any term of this Agreement is or becomes illegal, void or unenforceable, that part is deleted, and this does not invalidate the rest of this Agreement. If we do not enforce our rights under this Agreement at any time, it does not mean that we may not do so on future occasions.
17.5 Applicable law
The law of the New South Wales applies to this Agreement.