Terms and Conditions – August 2019
IMPORTANT: Please read this document carefully. These terms and conditions apply to all Services supplied by BAF. By receiving the Services, You agree to comply with these terms and conditions and to enter into this legally binding Agreement with BAF.
1. Defined Terms
Unless stated otherwise, capitalised terms used throughout this Agreement have the meanings given to them as follows:
(a) Agreement means the agreement between You and BAF which includes these terms and conditions, the Membership Agreement, any other document referred to in these terms and conditions, as well as any schedules or annexures to this document.
(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended.
(c) BAF or Be Athletic Fitness means the following entities:
(i) CrossFit Athletic Pty Ltd ABN 15 140 119 286; and
(ii) Exit Plan Pty Ltd ACN 147 454 242 as trustee for The Athletic CBD Unit Trust ABN 80 139 722 614,
trading as ‘Be Athletic Fitness’, and includes each of the permitted successors and assigns of those entities.
(d) BAF Representative means any of BAF’s directors, officers, contractors, subcontractors, servants, agents, employees or other representatives.
(e) Business Day means any day that is not a Saturday, Sunday, bank holiday or public holiday in Sydney, Australia.
(f) Cancellation Amount means an amount that is equal to the outstanding balance of your Membership Fee (being the Membership Fee less all Instalments paid by You to BAF), discounted by 85%.
(g) Force Majeure Event means any event, the occurrence of which is outside the control of a party including, without limitation, any act of government (including the imposition or variation of any law, rule, order, ordinance or regulation), accident, fire, insurrection, war, act of God, natural disaster, sabotage, strike or industrial action.
(h) GST has the meaning given to it in the GST Act.
(i) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Instalments has the meaning given to that term in clause 5(b).
(k) Late Payment Fee has the meaning given to that term in clause 6(a).
(l) Maximum Freeze Period means the maximum period for which You are permitted to freeze your Membership Program, as prescribed by clause 7(b)(ii).
(m) Membership Agreement means the agreement between You and BAF, under which You have agreed to participate in the Membership Program for the Membership Fee.
(n) Membership Fee means the total fee payable by You to BAF for your Membership Program for the entire Minimum Program Term.
(o) Membership Program refers to the type of membership and Services that You have elected to receive from BAF, as specified in your Membership Agreement.
(p) Minimum Program Term means the minimum membership period required by your Membership Program, which in any case, must not be less than 3 months from the Start Date.
(q) Payment Date means the 1st or the 15th day of each calendar month, and where that day is not a Business Day, payment will be required to be made on the following Business Day.
(r) Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
(s) Program Term means the period commencing on the Start Date and ending on the Termination Date.
(t) Services means all fitness, athletic and exercise services offered by BAF to You under your Membership Program, which may include but are not limited to any classes, programmes, products, courses, fitness sessions, PT or group sessions, seminars, competitions and other services offered by BAF to You from time to time.
(u) Start Date means the date so described in your Membership Agreement.
(v) You means the applicant.
(w) Termination Date means the date that your Membership Program is cancelled either by You or by BAF in accordance with clause 8.
2. Term of Membership
(a) This Agreement will commence on the Start Date and will continue for the Program Term.
(b) You agree to be a member of your Membership Program for a period of no less than the Minimum Program Term.
(c) Once You have completed your Minimum Program Term, this Agreement will automatically continue until such time as You cancel your Membership Program in accordance with clause 8(a).
(d) During any period following the expiry of the Minimum Program Term, and until You cancel your Membership Program, You will continue to receive the Services. You acknowledge that during this period, You will be required to pay the Instalments that reflect the Membership Fee charged by BAF for your Membership Program at that time (as opposed to as at your Start Date), and as otherwise varied by BAF from time to time in accordance with this Agreement.
(a) In consideration for the Membership Fee and subject to this Agreement, BAF agrees to provide You with the Services.
(b) BAF may provide the Services to You using its employees, contractors and other third-party service providers that it may engage from time to time.
(c) With reasonable notice to You, BAF reserves the right, in its sole discretion, to change, amend, reschedule or revise:
(i) the content, structure and delivery of the Services; and
(ii) any component, benefit or inclusion provided as part of a Membership Program, as may be reasonably required by BAF.
(a) You agree and acknowledge as follows:
(i) by receiving the Services, You are participating in exercise, which can be inherently dangerous;
(ii) your participation in the Membership Program can include, but are not limited to, the following activities, which You accept can be dangerous and could result in injury to You:
(B) weight lifting;
(C) outdoor running;
(D) bodyweight activities; and
(E) various other highly strenuous activities on the body;
(iii) by participating in the Membership Program, You agree that You are doing so as a recreational activity that You have elected to do at your own risk, knowing that You can incur injury by doing so; and
(iv) You must approach all exercises and activities with necessary caution and in accordance with any instructions that You receive from a BAF Representative.
(b) You are entitled to refuse to participate in any exercise or activity, if You do not want to participate in that exercise or activity.
(c) If You are feeling pain, discomfort, dizziness or over exertion in any way, You must immediately stop training and inform a BAF Representative.
(d) You agree that You have read and understood this clause 4 and that You voluntarily accept and assume the inherent risks in participating in any of the Services provided by BAF.
(a) You acknowledge that prior to the Start Date, BAF has disclosed to You the Membership Fee payable by You for the Minimum Program Term.
(b) You agree that You must pay the Membership Fee, in full, on or before the Start Date.
(c) Notwithstanding clause 5(b) above, You will be permitted to make payment of the Membership Fee to BAF in equal monthly instalments, provided such instalments are paid in advance, on the scheduled Payment Dates (Instalments).
(d) All Instalments are calculated on the basis of 52 weeks per year. For the avoidance of doubt, 12 months is equal to 52 weeks, 6 months is equal to 26 weeks and 3 months is equal to 13 weeks.
(e) BAF will accept payment of the Membership Fee by way of credit card or debit card. You agree:
(i) that BAF is permitted to debit your credit card or bank account for the Instalments on the Payment Dates;
(ii) that BAF is permitted to debit your credit card or bank account for any other fee that may be due and payable by You under this Agreement;
(iii) to provide BAF with your credit card or bank account details on or prior to the Start Date, and in the event those details change, You must provide BAF with your updated credit card or debit card details as soon as practicably possible and before the next scheduled Payment Date; and
(iv) to ensure that there are sufficient cleared funds in your bank account, or funds available on your credit card, to satisfy your obligation to make all payments to BAF under this Agreement, as and when they become due and payable.
(f) The Membership Fees:
(i) are payable in Australian dollars and are inclusive GST, unless expressly stated otherwise; and
(ii) may, at any time, be varied by BAF, in its sole discretion, provided that BAF provides You with reasonable notice of this change.
(g) Subject only to BAF’s obligations under Australian Consumer Law, You acknowledge and agree that BAF will not provide You with any refund for any Membership Fees paid under this Agreement.
(h) You agree and authorise for BAF to engage any third party agent, as notified to You by BAF from time to time, to debit your bank account or credit card on behalf of BAF, in respect of any payment that You are required to make to BAF under this Agreement.
6. Overdue Payments
(a) You agree that each time You fail to make payment to BAF of an Instalment on the scheduled Payment Date, including any instance where any payment attempt has been declined by your bank:
(i) BAF may charge You a fee of $15.00 (Late Payment Fee); and
(ii) in addition to the Late Payment Fee, You may also be charged a fee by any third party agent that BAF may engage under clause 5(h).
(b) You agree that the Late Payment Fee is fair and reasonable, and represents the administrative and procedural costs incurred by BAF as a result of any failure by You to make payment to BAF as required by this Agreement.
(c) In the event that You fail to make payment of an Instalment on or before the scheduled Payment Date, BAF is entitled to suspend your access to the Services with immediate effect until such time as You rectify all overdue payments, including any Late Payment Fee that may be charged to You by BAF.
7. Membership Freeze
(a) If You wish to freeze your Membership Program, You may do so at no cost in accordance with clause 7(b) below, provided that You give at least 7 days written notice to BAF prior to the first date from which You wish for your Membership Program to freeze.
(b) You may freeze your Membership Program provided that:
(i) the requested freeze period is not for a period less than one (1) calendar week, and for subsequent weekly periods thereafter; and
(ii) unless otherwise agreed between by BAF, the freeze period does not exceed the Maximum Freeze Period specified below for your Membership Program:
|Membership Program||Maximum Freeze Period|
|12 Month Ultimate Results Membership or Frequent Flyer||Four (4) calendar weeks|
|6 Month Unlimited Membership or Frequent Flyer||Two (2) calendar weeks|
|3 Month Unlimited Membership or Frequent Flyer||One (1) calendar week|
(c) During the period that your Membership Program is frozen:
(i) You will not be charged any Instalments; and
(ii) You will not receive the Services, and accordingly, You will not be permitted to access any of BAF’s facilities.
(d) If You wish to freeze your Membership Program for a period that is longer than the Maximum Freeze Period:
(i) You must provide a request in writing to BAF at least 7 days prior to the first date from which You wish for your Membership Program to freeze;
(ii) BAF may, in its sole discretion, either accept or reject your request; and
(iii) if BAF accepts your request to freeze your Membership Program for longer than the Maximum Freeze Period, You will be required to pay a one-off fee of $75 to BAF, prior to the first date from which your membership will be frozen.
(e) For the avoidance of doubt, any period of time for which your Membership Program has been frozen does not go towards satisfying the Minimum Program Term for your Membership Program. The Minimum Program Term for your Membership Program will be automatically extended by the period for which your Membership Program has been frozen under this clause 7.
8. Cancellation Policy
(a) If You wish to cancel your Membership Program and You have completed your Minimum Program Term, You must provide written notice to BAF no later than 7 days prior to the next scheduled Payment Date.
(b) If You wish to cancel your Membership Program prior to the expiry of the Minimum Program Term:
(i) provide written notice to BAF no later than 7 days prior to the next scheduled Payment Date; and
(ii) You will be required to pay the Cancellation Amount to BAF on the next scheduled Payment Date following the notice described in clause 8(b)(i) being received by BAF.
(c) BAF may cancel your Membership Program with immediate effect by providing written notice to You, if:
(i) You provide written evidence to BAF from a medical practitioner certifying that You are not fit to participate in the Membership Program;
(ii) a BAF Representative, in its sole discretion, considers that You are not medically or physically fit to participate in the Membership Program;
(iii) a BAF Representative, in its sole discretion, considers your behaviour to be unacceptable, unsafe or inappropriate; or
(iv) if You are in breach of your obligations under this Agreement.
(d) In the event that BAF cancels your Membership Program pursuant to clauses 8(c)(iii) or 8(c)(iv), You will be required to pay the Cancellation Amount to BAF on the next scheduled Payment Date following BAF issuing you with a cancellation notice under clause 8(c).
(e) For the avoidance of doubt, if BAF cancels your Membership Program under clause 8(c), You will not be refunded any amount that has been paid by You under this Agreement.
(f) Notwithstanding clause 8(d)(ii), BAF will not provide advice to You concerning your medical fitness to undertake any exercise or activity that may be contemplated by your Membership Program. You agree and acknowledge that You must seek your own medical advice if You have any concern relating to your medical fitness to undertake any exercise or activity required for You to participate in the Services.
9. Operational Rules
(a) You agree to comply with all operational rules that are implemented by BAF from time to time. These operational rules include, but are not limited to the following:
(i) (Class capacity): You acknowledge that BAF classes may be capped to only accept a limited number of members.
(ii) (Class check in): prior to attending a BAF class, You are required to book in to that class via an online booking app nominated by BAF and as notified to You from time to time. Upon arrival to that class, You are then required to sign in. If You have not checked in to a class online prior to the commencement of that class, BAF has the right to refuse You the right to participate in that class.
(iii)(Apparel): While participating in any BAF class, Service or while at any premises operated by BAF, You must:
(A) not wear open toe shoes or sandals;
(B) wear a shirt at all times; and
(C) not wear any apparel that a BAF Representative may consider inappropriate,
and BAF has the right to refuse You entry to, and the right to participate in, any class or Services, if BAF considers that You have not complied with this rule.
(iv) (Competency training): BAF may require You to complete an assessment upon commencing your Membership Program to determine whether You need to complete any competency training before participating in BAF’s standard classes (Competency Training). If a BAF Representative considers that You need to undertake Competency Training:
(A) this will be offered to You by BAF either by way of personal training, dedicated group training sessions, or a combination of both;
(B) You may be required to pay for any personal training or group training sessions that You may undertake for the purposes of completing any Competency Training (Competency Training Fees);
(C) BAF will advise You of the Competency Training Fees prior to You undertaking any personal training or group training sessions;
(D) depending on the type of Competency Training that You undertake, BAF may charge You the Competency Training Fees instead of the Instalments until you complete your Competency Training; and
(E) You may be required to pass a competency test before You participate in BFA’s standard classes.
(b) BAF reserves the right to vary the operational rules from time to time.
10. Warranties and Undertakings
(a) You warrant that:
(i) You are and will continue to be medically and otherwise physically fit and able to participate the Services for the duration of the Program Term;
(ii) You have notified BAF of any pre-existing medical condition or injury prior to the Start Date;
(iii) You are not, in any way, a danger to others or yourself;
(iv) You are aware of, and are able to comply with, all operational rules implemented by BAF;
(v) You are over the age of 13; and
(vi) all information provided by You to BAF is true and correct.
(b) You undertake and agree that, for the duration of the Program Term, You will:
(i) comply with all operational rules, directions and other instructions that may be provided to You by a BAF Representative;
(ii) immediately notify BAF if You are no longer able to provide any of the warranties set out in clause 10(a); and
(iii) immediately notify BAF if there is any change to your physical or medical ability to participate in the Services.
11. Medical Treatment
(a) You consent to, and authorise, BAF’s Representatives to administer or obtain medical assistance to You in the event of an accident, injury or medical condition that You may suffer while participating in the Services.
(b) You agree to reimburse BAF for any costs or expenses incurred by BAF in administering or obtaining any such medical assistance.
12. Limitation of Liability
(a) You agree and acknowledge that:
(i) You have read and understood the warning set out in clause 4;
(ii) You accept that You will receive the Services at your own risk; and
(iii) the Services being supplied to You under this Agreement are recreational services for the purposes of section 5N of the Civil Liability Act 2002 (NSW), and to the fullest extent permitted by law, BAF’s liability to You under this Agreement is excluded to the extent that such liability arises as a result of a breach by BAF of an express or implied warranty that the Services will be rendered with reasonable care and skill.
(b) Except as required by Australian Consumer Law, BAF:
(i) makes no representations and gives no warranties expressly or implied as to the suitability of the Services; and
(ii) makes no guarantee whatsoever as to the suitability, nature or quality of the Services.
(c) To the fullest extent permitted by law, where the Australian Consumer Law applies to this Agreement, BAF’s liability to You under this Agreement is limited to either providing You with a refund for all amounts paid by You under this Agreement or providing You with the Services again.
14. Photographs and Right to Use
You agree that photographs or videos may be taken of You during the time that the Services are being provided to You by BAF. You consent to the use of any such photographs or videos by BAF, without any payment or compensation to You, for promotional purposes and for use by BAF in other business-related material. You agree that any such photographs or videos are and will remain the property of BAF at all times.
(a) (Assignment): BAF may assign or otherwise deal with this Agreement in its sole discretion, with notice to You. You agree that You can only assign your rights and obligations under this Agreement with BAF’s prior written consent, which must not be unreasonably withheld.
(b) (Jurisdiction): This Agreement is subject to Australian law and is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts operating in New South Wales.
(c) (Severability): If anything in this Agreement is unenforceable, illegal or void, and it cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then it is severed and the rest of this Agreement remains in force.
(d) (Variation): BAF may amend or vary this Agreement, its payment methods, payment processes and pricing structures, at any time, by giving notice to You. Notice of any such amendment or variation is deemed given to You and will become effective upon the earlier of either of the following occurring:
(i) BAF sending notice of the amendment to You at any address (including an email address) supplied by You; or
(ii) BAF publishing the amended terms on its website.
(e) (Entire Agreement): This Agreement, and any document expressly referred to in it, represents the entire agreement between the parties and supersedes any prior agreement, representations, understanding or arrangement between the parties, whether oral or in writing.
(f) (Time is of the essence): Time is of the essence with respect to all obligations under this Agreement.
(g) (Survival): Other than as expressly stated elsewhere in this Agreement, the following clauses will survive the termination of this Agreement: clauses 1, 4, 8(b)(ii), 8(e), 10, 12, 13, 14 and 15.
(h) (Force Majeure): BAF will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to a Force Majeure Event. If BAF is delayed from performing its obligations due to such a Force Majeure Event for a period of at least 2 months, BAF may terminate this Agreement by providing You with 5 Business Days’ notice in writing.
(i) (Inconsistency): Unless where expressly stated otherwise in the Membership Agreement, in the case of any conflict or inconsistency between these terms and conditions and any other document forming part of this Agreement, these terms and conditions will prevail.
(j) (Notice): Any notice required or permitted to be given by either party to the other under this Agreement must be in writing addressed to that party to the following address:
BAF: By email, to:
Be Athletic Brookvale – [email protected]
Be Athletic City – [email protected]
You: By email, to the email address provided by You in the
By signing this Declaration, I agree that:
- I have read, understood, acknowledge and agree to the above terms and conditions
- I have signed this Agreement freely, voluntarily, under no duress or threat of duress, without inducement, promise or guarantee being communicated to me
- I also certify and warrant that I am 18 years of age or older and mentally competent to enter this Agreement, or if I am under 18 years of age, my parent or guardian has signed the below consent
- I have read the warning contained in clause 4 and I accept that I will be receiving the Services at my own risk
Full Name: ___________________________________________
Important: Where the applicant is under 18 years of age this Agreement must also be signed by the applicant’s parent or legal guardian.
I, _________________________________[Full Name of parent/guardian], warrant that I am the parent or guardian of __________________________________ [Applicant].
By signing this Consent, I agree that:
- the Applicant is at least 13 years of age
- I am responsible for the Applicant’s behaviour
- I consent to the Applicant receiving the Services
- I have read, understood, acknowledge and agree to the above terms and conditions, on behalf of the Applicant
- I have read the warning contained in clause 4 and I accept that the Applicant will be receiving the Services their own risk
- I have signed this Agreement freely, voluntarily, under no duress or threat of duress, without inducement, promise or guarantee being communicated to me