The Commons Health Club
Terms and conditions
1. Membership Agreement
1.1 By completing the membership application via the Online Account, the person listed in Online Account makes an offer to become a member of The Commons Health Club. The Commons may accept or reject an application form in its sole discretion.
1.2 The Commons Health Club and the person whose name is listed in the Online Account (Member) agree to be bound by these Terms and Conditions (T&Cs), the Club Policies (Policies) and the Direct Debit Agreement (together, the Agreement).
1.3 The Online Account will specify which club the Member has joined (Club). For the purposes of this Agreement, a reference to The Commons means the entity that is relevant to the Club selected by the Member as specified in the table below (being the entity with whom the Member has contracted under this Agreement):
Club: Richmond
The Commons Entity:The Commons Health Club Cremorne Pty Ltd ABN 21 681 622 113
Club: South Yarra
The Commons Entity:The Commons Health Club South Yarra Pty Ltd ABN 17 681 621
1.4 In accordance with this Agreement, The Commons will supply to the Member the benefits that are applicable to the membership selected by the Member in their Online Account (Membership), as further described in these terms and conditions (Services).
1.5 This Agreement is effective from the Start Date, subject to early termination in accordance with its terms, and continues until effective cancellation of the Membership under this Agreement (Term).
2. Membership Team
2.1 The Membership begins on the date the Member purchases their Membership through the Online Account (except in the case of Founding Members, whose membership begins on the opening day of the relevant Club) (Start Date), and subject to the terms of this Agreement, will continue for the period specified in the Online Account (Membership Period), which may be either:
(a) a fixed minimum period of 12 months (Yearly Membership); or
(b) a recurring monthly period (Monthly Membership).
2.2 Where the Membership is a Yearly Membership:
(a) the Membership will automatically convert to a Monthly Membership once the Initial Minimum Term has expired unless the Member gives written notice to The Commons, at least 30 days prior to the end of the Initial Minimum Term, that it wishes to cancel the Membership at the end of that period;
(b) where the Membership is converted into a Monthly Membership, the Membership Fees will remain the same weekly amount that the Member paid for the Yearly Membership.
2.3 Where the Membership is a Monthly Membership (including as a result of conversion of a Yearly Membership under clause 2.2 ), either party may cancel the Membership at any time by providing the other party with at least 30 days; written notice.
2.4 Memberships are subject to an initial minimum term (Initial Minimum Term). The Initial Minimum Term will begin on the Start Date and continue for a period of:
(a) in relation to Yearly Memberships, 12 months; and
(b) in relation to Monthly Memberships, 1 month.
2.5 The Initial Minimum Term will be extended by:
(a) any period of suspension under clause 17 ; and
(b) any Freeze Period.
2.6 Once the Member has completed the Initial Minimum Term, the Membership will automatically convert into a Monthly Membership.
2.7 Either party may cancel the Membership at any time by providing the other party with at least 30 days; written notice. Written notice is provided by the Member by completing the; Update my Membership; form in the App. If a Member cancels the Membership during the Initial Minimum Term, the Member agrees to pay the Cancellation Fee to cover a portion of The Commons; administrative costs and loss of anticipated income in cancelling the Membership. No Cancellation Fee will be payable if a Member cancels their Membership during the Change of Mind Period.
2.8 Memberships will be subject to a change of mind period, where the Member may elect to cancel their Membership within:
(a) in relation to Founding Member, 14 days of the Start Date;
(b) in relation to all other Members, 48 hours of the Start Date (each a, Change of Mind Period).
2.9 If a Member wishes to cancel their Membership during the Change of Mind Period, they must provide written notice to The Commons by completing the Update my Membership; Form in the App. Where a Membership is cancelled during the Change of Mind Period, the Member will be eligible to receive a refund of any amounts paid, less:
(a) any used amounts paid in respect of Additional Services;
(b) an amount equal to 1/7 of the weekly Membership Fees for each day the Member had access to The Commons Health Club;
(c) where an induction pack has already been provided, a $99 fee, during the Change of Mind Period.
3. Membership Fee
3.1 All Memberships will be subject to a joining fee of $99 payable upon sign up online.
3.2 The membership fee payable by the Member (Membership Fee) will be the weekly amounts stated in the Online Account, charged via direct debit in accordance with the Direct Debit Agreement. Any Additional Services purchased by the Member will be charged immediately.
3.3 Certain payment methods may incur additional fees. You agree to pay all fees (including the fees listed in this clause 3.3 ) in connection with your Memberships by automatic direct debit and/or from a credit card (Visa or Mastercard or Amex).
(a) Payment by card (online or via the App):
(i) local cards: 1.60% + $0.30;
(ii) AMEX cards: 2.25% + $0.30;
(iii) international cards: +1.50%;
(iv) chargeback fee: $25.00;
(v) card updated service: $1.00;
(vi) failed payment fee: $3.50;
(vii) failed payment fee (type): all failures.
(b) Payment by Card via a terminal:
(i) local cards: 1.75% + $0.10;
(ii) international cards: 2.30% + $0.10.
3.4 The Commons may update the Membership Fee from time to time provided it first gives the Member 60 days; prior written notice to provide the Member with an opportunity to exercise its right to cancel under clause 2.7 if it does not wish to proceed with the Membership on the basis of the updated fees. Any updated Membership Fee will not be applicable to Members within the Initial Minimum Term.
3.5 It is the Member's responsibility to ensure that its payment details are kept up to date and that there are sufficient funds in its nominated bank account to enable the successful debit of the Membership Fee. If a transaction is rejected due to incorrect details or insufficient funds, the Member will be liable for any reasonable direct costs incurred by The Commons as a result including any bank fees.
3.6 If The Commons is unable to collect payment of the Membership Fee or any other Fee, the Member will be notified via email that the Member's Membership will be frozen until the outstanding Fee has been paid. If the Member has not paid the outstanding Fee within 14 days of the due date the Member will be liable to pay to The Commons interest on the amount outstanding at a rate of 2% per annum above the average of the most recent prime rate, indicator rate or reference rate (however described) for business overdrafts published by the Commonwealth Bank of Australia, from the due date for payment up to the actual date of payment.
3.7 The Commons may send the Member's outstanding debt to a third-party debt collection agency to collect the outstanding Fees.
3.8 The Commons; rights under clauses 3.6 and 3.7 will not affect any other rights or remedies that The Commons may have in relation to the Member's default, including under clause 16 of this Agreement.
4. Workspace Special Rate Memberships
4.1 Members who are workspace members and meet certain criteria under the Club Policies are eligible to receive a membership at a discounted rate (Special Rate Membership) on the Membership Fee. Such discounted rate is subject to change by The Commons and will be notified by The Commons to Members via email.
4.2 Where a Special Rate Membership applies, the Membership Fee will be the amount stated in the Online Account, charged via direct debit in accordance with this Agreement.
4.3 If a Member is no longer eligible to receive a Special Rate Membership, The Commons will provide the Member with written notice stating they no longer meet the criteria for a Special Rate Membership.
4.4 If the Member is no longer eligible for a Special Rate Membership and the Member wishes to continue use of The Commons Health Club, the Member can:
(a) downgrade their Membership in accordance with clause 8;
(b) cancel their Membership by providing The Commons with 30 days; written notice. Written notice is provided by the Member by completing the Update my Membership; form in the App; or
(c) elect to do nothing and their Special Rate Membership will automatically revert to the full Membership Fee that the Member would have been paying if the Special Rate Membership had not applied.
4.5 The Commons; rights under this clause 4 will not affect any other rights or remedies that The Commons may have in relation to the Member's default, including under clause 16 of this Agreement.
5. Health and Safety
5.1 The Member acknowledges and agrees that:
(a) there may be activities and inclusions offered by The Commons as part of the Membership that are not suitable for the Member based on the Member's individual circumstances or medical history;
(b) The Commons does not, and cannot, provide the Member with any medical advice. It is the Members responsibility to consult with a medical professional and discuss any medical concerns they may have before engaging in any activities provided as part of the Membership;
(c) The Commons does not recommend that any pregnant women, children, elderly persons, haemophiliacs or anyone predisposed to bleeding or impaired sweating engage in any heated activities offered as part of a membership;
(d) the Member must use their own judgement, based on their own circumstances, to decide whether to participate in any activity provided by The Commons as part of the Membership; and
(e) there will be periods where the Club is not staffed. In this case, the Member acknowledges and agrees that they will follow all instructions and safety information provided to the Member and displayed in the Club to ensure the Club facilities are used in a safe manner that does not put the Member or any other member in danger.
5.2 By entering into this Agreement, the Member warrants that:
(a) the Member is in good physical health and is able to safely access the Services under the Membership; and
(b) the Member has obtained all necessary medical advice and has disclosed any relevant medical conditions or aspects of their medical history that could impact their ability to safely access the Services (including any health risk assessment, initial and periodic fitness assessment or information provided by the Member's medical or allied health practitioner).
5.3 The Member must ensure that they refrain from using any equipment or engaging in any activity provided as part of the Membership that they do not know (or is not sure if they know) how to safely use or engage in. Any questions can be directed to The Commons; Representatives who are available during the Staffed Hours of the Club.
5.4 The Member must not use any equipment or engage in any activity provided as part of the Membership where they are suffering from any infectious or contagious illness, disease or other ailment or while suffering from any physical ailment that may present a risk to other members such as any open cuts or sores.
5.5 Additional Services, personal training sessions, bathhouse sessions and fitness classes are booked via the App or with a member of The Commons Health Club Team. Additional information is available via the App or from a member of The Commons Health Club Team.
6. Late Cancellation Notice and No-Show Fees
6.1 Where a Member provides a Late Cancellation Notice or is a No-Show, the following Additional Fees will apply.
6.2 Where the Member provides a Late Cancellation Notice, the following Additional Fees will apply:
(a) $10 for late cancellation of a fitness class;
(b) for Members with a Fitness + Bathhouse Membership, a $10 fee for late cancellation of a bathhouse session; and
(c) for Members with a Fitness Only Membership, a $10 for late cancellation of a bathhouse session. The Member will retain their credit to use the bathhouse for an alternative makeup session.
6.3 Where the Member provides a Late Cancellation Notice in relation to the following Services, the cost will be forfeited by the Member and will not be refunded:
(a) personal training session;
(b) Additional Services.
6.4 Where a Member is a No-Show, the following Additional Fees will apply:
(a) $15 for a No-Show at a fitness class; and
(b) for Fitness + Bathhouse Members, a $15 for a No-Show of a bathhouse session.
6.5 Where the Member is a No-Show in relation to the following Services, the cost will be forfeited by the Member and will not be refunded:
(a) personal training session;
(b) for Fitness Only Members, any relevant bathhouse session; and
(c) Additional Services.
7. Membership Club Transfer
7.1 Your Membership is for personal use only and it strictly non-transferable.
7.2 The Member may request to transfer their Membership from the selected Club to another The Commons location (New Club). Such request must be made by completing the; Update my Membership; form in the App. The Commons must act reasonably in considering any such request and will notify the Member in writing of its decision.
7.3 The Member acknowledges and agrees that:
(a) transfer requests are subject to availability and may not always be able to be accommodated;
(b) any accepted transfer request under this clause will be subject to the Member paying a $200 fee to cover The Commons; administrative costs in transferring the Membership. Upon the effective date of transfer of the Membership, this Agreement is deemed to be varied so that any reference to the Club is a reference to the New Club.
7.4 The Member acknowledges and agrees that if The Commons accepts a transfer request under this clause, the Membership Fees at the New Club may vary to the Membership Fees at the existing Club. The adjusted Membership Fees for the New Club will begin on the effective date of transfer.
8. Membership upgrade or downgrade
8.1 The Member may request to upgrade or downgrade their Membership at any time by completing the;Update my Membership; form in the App. A Membership upgrade or downgrade request may take up to 30 days to process from the time of the initial request. The Commons may, acting reasonably, accept or reject such notice in writing.
8.2 The Member acknowledges and agrees that any accepted Membership downgrade request under this clause for a Yearly Membership will be subject to the Member paying a $200 fee to cover The Commons; administrative costs in downgrading the membership. Any downgrade request for a Monthly Membership will be treated as a new Monthly Membership and therefore no fee is payable.
8.3 All upgrades and downgrades will be priced at the current advertised rate, which can be found on the website at the time of the upgrade or downgrade.
8.4 If The Commons accepts a request under clause 8.1 , this Agreement will be taken as varied by agreement of the parties, so that any terms specific to the new Membership will apply in place of the old Membership. The Member must pay the new Membership Fee from the date that the new Membership becomes active, which will be invoiced by The Commons on a pro-rata basis.
9. Member's responsibilities
9.1 The Member must, in connection with the Membership:
(a) comply with all applicable laws;
(b) subject to clause 10.2 , comply at all times with:
(i) these T&Cs; and
(ii) the Club Policies;
(c) comply with all lawful and reasonable directions of The Commons and its Representatives;
(d) notify The Commons as soon as possible after becoming aware of any changes to the information disclosed by the Member in their Online Account, including any medical information that may impact the Member's ability to safely access the Services; and
(e) promptly inform The Commons of all material matters concerning the Membership or this Agreement that come to the attention of the Member.
10. The Commons right to make changes
10.1 The Commons may make changes to any aspect of its business operations, the Club Policies, or these T&Cs:
(a) without notice at any time, where the changes will not cause any material detriment to the rights of the Member; or
(b) by giving the Member at least 30 days; prior written notice (Change Notice) of the changes where the changes will or may cause a material detriment to the rights of the Member (Change Notice Period).
10.2 If The Commons gives the Member a Change Notice, the Member may cancel the Membership by giving The Commons written notice at any time during a Change Notice Period (regardless of whether the Member has completed the Minimum Term), with such cancellation taking effect after the end of the Change Notice Period. During the Change Notice Period, the Member will not be required to comply with the change the subject of the Change Notice.
10.3 For the avoidance of doubt, if the Member does not exercise the Member's right to terminate within a Change Notice Period, the Member will be deemed to have accepted the changes in the Change Notice, which will take effect after the end of the Change Notice Period.
11. Goods and Services Tax (GST)
11.1 Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act.
11.2 Unless otherwise stated, any amount specified in this Agreement as the consideration payable for any taxable supply includes any GST payable in respect of that supply.
11.3 Each party agrees to do all things, including providing valid tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.
11.4 If an adjustment event arises in relation to a taxable supply made by a party under this Agreement (Supplier), the amount paid or payable by the party to whom the taxable supply is made (Recipient) pursuant to clause 11.2 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or the other way around as the case may be.
11.5 If a third party makes a taxable supply and this Agreement requires a party to this Agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
11.6 This clause does not merge on completion and will continue to apply after expiration or termination of this Agreement.
11.7 Unless otherwise stated, all fees and taxes are stated in Australian Dollars.
12. Facilities
12.1 Some Memberships will have restricted access hours. Details of the hours will be available on the Online Account and on The Commons Health Club website and will vary based on the type of Membership selected.
12.2 On the Start Date, the Member may be provided with an access card or fob to enable access to the Club (Access Card). The Member will be responsible for this Access Card, and additional fee of $50 will be payable if the Access Card is lost, misplaced or stolen.
12.3 The Commons may need to limit access to certain areas of the Club from time to time as necessary to carry out cleaning, repairs and maintenance services and to improve or upgrade its facilities (Disruption Event). The Commons will endeavour to notify the Member in advance where the Disruption Event will materially impact the benefits provided to the Member under their Membership but cannot guarantee that advance notice will always be provided where the Disruption Event relates to urgent or emergency repairs or other similar issues.
12.4 Where a Disruption Event materially impacts the benefits provided to the Member under their Membership for a period of more than 7 consecutive days, the Member may request a credit against their Membership Fees for the period during which their benefits were materially impacted.
12.5 Where a Disruption Event results in complete closure of the Club for a period of more than 14 consecutive days, either party may, by written notice to the other party, suspend the Membership until the Disruption Event has ceased, during which time the Member's obligation to pay Membership Fees will also be suspended. If a Disruption Even persists beyond 6 months, either party may terminate this Agreement.
12.6 The Commons may, from time to time, run exclusive events in certain areas of the Club, which may mean that the area is unavailable for use for a short period of time. Where these events happen on the gym floor or fitness studios, alternative areas will be made available for use by Members.
13. Guests
13.1 A Member may request a Guest Pass by completing a request via The Commons' Health Club App. The Commons may issue a Guest Pass in its discretion (acting reasonably).
13.2 A Guest Pass entitles one person entry to access the Club and its Services only during Staffed Hours. The Guest will be bound by this Agreement. Guests will be required to sign a copy of these T&Cs.
13.3 Guests must be 18 years of age.
14. Personal Property
14.1 The Member is responsible for any personal property that it brings to the Club. The Commons is not liable for any lost or theft of, or damaged to any personal property that is brings to the Club, including any items stored in lockers, except to the extent such loss, theft or damage is caused by The Commons negligence or wilful misconduct.
14.2 The Commons makes lockers available at the Club for temporary use during Staffed Hours only. These lockers and change rooms are not accessible outside Staffed Hours. The Member must ensure that any locker it uses is secured at all relevant times and must remove its personal property from the locker before departing the Club. The Member must not leave any personal property in a locker overnight. Any personal property that has been left in a locker overnight will be removed. The Commons may access and search any of its lockers at any time for safety and security reasons.
14.3 Members should remove items stored in change room lockers prior to the time listed on the App and/or The Commons Health Club website. There are lockers outside the change rooms which can be used outside of Staffed Hours.
14.4 Where the Member has access to a Club that is open 24 hours, any items stored in lockers will be removed at the time listed on the App and/or The Commons Health Club website. These removed items will be kept at the concierge desk for the Member to retrieve when they are leaving the Club.
15. Membership freeze
15.1 The Member is entitled to freeze their Membership (Freeze). To request a Membership freeze, Member must submit a request by completing the 'Update my Membership' form
in the App.
15.2 The Member may request a Freeze for a minimum of 7 days up to a maximum of 4 weeks (a Freeze Period) per year, provided that;
(a) the Member will not be entitled to cancel their Membership during a Freeze Period;
(b) Memberships cannot be frozen during the Change of Mind Period;
(c) Members do not have outstanding Fees at the time of requesting a Freeze Period;
(d) Freeze requests must be submitted at least 7 days before the intended Freeze Period;
(e) the Member will not be entitled to request a Membership upgrade or downgrade during a Freeze Period; and
(f) the Member may not freeze their Membership during the 30-day notice period after they cancel their Membership.
15.3 No Membership Fees will be payable during a Freeze Period.
15.4 A Freeze will incur a one-off administrative fee of $20.
15.5 Any Membership Freeze request accepted by The Commons during the Members Initial Minimum Term will extend the Initial Minimum Term by the length of the Freeze Period.
16. Termination
16.1 This Agreement is automatically terminated upon cancellation of the Member's Membership under clause 2 , 4.4(b) and 10.2.
16.2 Subject to clause 16.3 . which shall take precedence over this clause in relation to the subject matter of clause 16.3 , either party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) breaches a material term of this Agreement which cannot be remedied, or which can be remedied but is not remedied within 5 Business Days after the Non- Defaulting Party gives the Defaulting Party written notice of the breach; or
(b) suffers an Insolvency Event.
16.3 In addition to the rights under clause 16.2 , The Commons may terminate this Agreement immediately by written notice to the Member if the Member:
(a) breaches a material term of the Club Policies which cannot be remedied, or which can be remedied but is not remedied within 5 Business Days after The Commons gives the Member written notice of the breach;
(b) fails to pay any amounts owing within 30 days after the due date for that amount;
(c) engages in behaviour which would cause serious harm to the image or reputation of The Commons or its Related Bodies Corporate; or
(d) commits an act of theft, fraud or serious or wilful misconduct.
16.4 If this Agreement is terminated by The Commons under clause 16.2 or 16.3:
(a) the Member must, within 14 days after the date of termination, pay The Commons all relevant Membership Fees for the period up to the date of cancellation on a pro rata basis, in addition to any other unpaid amounts payable under this Agreement;
(b) the Member must, on or before the termination or expiration date, remove all Member property from the Club and return all keys, access passes or other means of entry to the Club to The Commons; and
(c) any accrued rights and obligations of the parties as at the date of termination or expiration are unaffected.
16.5 If this Agreement expires or is terminated for any reason other than that set out under clause 16.4:
(a) the Member must, within 14 days after the date of termination or expiration, pay The Commons all relevant Membership Fees for the period up to the date of termination or expiration on a pro rata basis, in addition to any other unpaid amounts payable under this Agreement;
(b) The Commons must, within 14 days after the date of termination or expiration, refund to the Member the unused portion of any Membership Fees paid in advance to The Commons, calculated on a pro-rata basis;
(c) the Member must, on or before the termination or expiration date, remove all Member property from the Club and return all keys, access passes or other means of entry to the Club to The Commons; and
(d) any accrued rights and obligations of the parties as at the date of termination or expiration are unaffected.
17. Suspension
17.1 Without limiting any other rights or remedies The Commons may have, where 'The Commons' is entitled to terminate this Agreement under clause 16.2 or 16.3 in circumstances where the relevant default or non-compliance is capable of remedy, The Commons may suspend the Membership until such time that the relevant default or non-compliance has been remedied in full by the Member.
17.2 During any period of suspension under clause 17.1 , the Member may not access the Club or access any Services connected with the Membership, and no Membership Fees will be payable.
18. Limitation of Liability
18.1 Nothing in this Agreement is intended to have the effect of excluding any Consumer Guarantees or any other terms, conditions, guarantees and warranties which cannot lawfully be excluded or modified by agreement, including those under the Australian Consumer Law (Non-Excludable Rights). The remainder of this clause 18 is to be read as subject to this clause 18.1.
18.2 Subject to any Non-Excludable Rights, and to the maximum extent permitted by law:
(a) these T&Cs exclude any implied terms;
(b) each party excludes any liability for Consequential Loss; and
(c) The Commons' liability is limited to the following (which for the avoidance of doubt, does not apply for any breach of a Non-Excludable Right):
(i) in the case of Goods:
(A) the replacement of the Goods or the supply of equivalent goods;
(B) the repair of the Goods;
(C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the Goods repaired; and
(d) in the case of Services - to the supplying of the Services again or the payment of the cost of having the Services supplied again.
18.3 WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012
In this warning, references to 'the supplier' mean The Commons, and references to 'you' mean the Member. Under the Australian Consumer Law (Victoria), several statutory guarantees apply to
the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you-
• are rendered with due care and skill; and
• 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.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the exclusion of these statutory guarantees is brought to your attention by this form.
NOTE: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
19. Force majeure
19.1 In this clause 19 , Force Majeure Event means any event that is outside the reasonable control of a party, including an act of God, natural disaster, war, act of terrorism, revolution, unlawful act against public order or authority, disease, pandemic or epidemic, a strike or industrial dispute or an act or omission of a government agency.
19.2 An obligation of a party (other than an obligation to make payment) is suspended for the time and to the extent that the party is prevented from or delayed in complying with that
obligation by a Force Majeure Event.
19.3 On the occurrence of a Force Majeure Event, the affected party must promptly notify the other party and describe in reasonable detail the nature of the Force Majeure Event and its likely effect on the ability of the affected party to perform its obligations under this Agreement.
19.4 The Member will not be required to pay Membership Fees to the extent a Force Majeure Event experienced by The Commons prevents The Commons from providing access to the Club. Where a Force Majeure Event prevents The Commons from providing access to the Club for a period of more than 6 months, either party may, by written notice to the other party, terminate this Agreement.
20. Privacy
20.1 By using our services, you consent to the collection and use of your data as outlined in our Privacy Policy which can be found here https://www.thecommonshealthclub.com.au/privacy-policy
20.2 The Commons Health Club collects personal information, including your name, contact details, payment information, and health-related data (including but not limited to, weight, height, body mass index and blood pressure information). This data is used to manage your membership, provide services, process payments, and ensure the safety of our facilities. We may also use your personal information in de-identified form, and provide such de-identified data, in aggregated form, to, other third parties to provide you with our goods and services and assist us in running our business (including to optimise and improve our services and solutions, and for other internal uses).
20.3 To ensure safe participation in fitness activities, we may collect health information in relation to medical conditions or injuries. This information is treated as sensitive and will only be used for safety and risk management purposes. By providing this information, you consent to its use for these purposes.
20.4 All payment details are securely processed through a third-party payment provider. The Commons Health Club does not store full credit card details. You are responsible for ensuring your payment details remain accurate and up to date.
20.5 Your information may be shared with third-party providers (e.g., our third-party providers, payment processors, booking systems) to facilitate membership services and for the purposes described above. We do not sell your personal data to third parties.
20.6 We take reasonable measures to protect your personal data from unauthorized access, loss, or misuse. However, no data transmission over the internet is completely secure, and you acknowledge that you provide your information at your own risk.
20.7 We may use your contact details to send updates, promotions, or service announcements. You can opt out of marketing communications at any time by unsubscribing or contacting us.
21. General
21.1 All notices, requests, demands, consents, approvals or other communications under this Agreement (Notice) to, by or from a party must be in writing and addressed to a party in accordance with their details set out in this Agreement (or as updated from time to time by Notice to the other party).
21.2 Neither party may assign or otherwise deal with any of their rights under this Agreement without the prior written consent of the other party, which consent must not be unreasonably withheld or delayed.
21.3 Except for a change effected under clause 10 , a variation of this Agreement will be of no force or effect unless it is in writing and signed by each of the parties.
21.4 A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver. A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
21.5 If a provision in this Agreement is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this Agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this Agreement.
21.6 This Agreement is governed by and is to be construed under the laws in force in the Jurisdiction. Each party submits to the non-exclusive jurisdiction of the courts in the Jurisdiction and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
21.7 This Agreement states all of the express terms of the Agreement between the parties in respect of its subject matter and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter. However, if the Member is a Consumer, this clause does not exclude any Consumer Guarantees or any rights of the Member under the Australian Consumer Law.
21.8 The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship. Nothing in this Agreement gives a party authority to bind any other party in any way.
21.9 Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of this Agreement, clauses 3 , 9 , 11 , 14 , 16.4 , 16.5 , 18 , 20 and 21 survive the termination or expiry of this Agreement.
22. Definitions and Interpretation
22.1 Definitions
Additional Fees - means additional fees, including those set out in clause 6.
Additional Services - means any additional Services not included on a standard membership, including but not limited to bathhouse sessions, infrared sauna or red-light therapy beds.
App means The Commons Health Club Application.
Australian Consumer Law means Schedule 2 of the CCA and any equivalent state or territory legislation;
Business Day means any day on which banks are open for business in the Jurisdiction, excluding a Saturday, Sunday or public holiday in that city.
Cancellation Fee means an amount equal to the lesser of:
(a) 25% of the remaining Membership Fees payable under the Initial Minimum Term, or
(b) two (2) months of the applicable Membership Fees.
CCA means the Competition and Consumer Act 2010 (Cth).
Club Policiesmeans the policies which can be found here https://www.thecommonshealthclub.com.au/club-policies.
Consumer Guarantee means any right or statutory guarantee under Division 1 of Part 3-2 of the Australian Consumer Law.
Corporations Act means the Corporations Act 2001 (Cth).
Direct Debit Agreement means the agreement between the Commons, the Member and Stripe (as The Commons direct debit agent) dated on or around the date the Member purchases their Membership through Online Account. This agreement can be found here: https://stripe.com/au/legal/becs-dd-service-agreement.
Fee means any fee payable under this Agreement, including but not limited to Membership Fees, Additional Fees, Cancellation Fees, joining fees, Guest Pass fees and transfer fees.
Fitness Only Membership means a Membership providing unlimited access to gym, fitness and wellness classes.
Fitness + Bathhouse Membership means a Membership providing unlimited access to gym, fitness and wellness classes and access to the bathhouse.
Freeze has the meaning given to it in clause 15.1.
Freeze Periodhas the meaning given to it in clause 15.
Founding Member means an individual who purchases a Membership prior to the opening of The Commons Health Club at any location.
Guest means any permitted person using the Services at the Club who is not a Member.
Guest Pass means a pass which entitles a Guest to access a Club under clause 13 .
Initial Minimum Term has the meaning given to it in clause 2.4.
Insolvency Event means the occurrence of any of the following events:
(a) where a party is a natural person, the person becomes bankrupt, files or is served with a petition in bankruptcy or is served with a bankruptcy notice, the person is unable to pay his/her debts as and when they become due and payable or a creditor's meeting in relation to the person is called;
(b) an application is made to a court for an order or an order is made that a body corporate be wound up, and the application is not withdrawn, stayed or dismissed within 21 days of being made;
(c) appointment of a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller in respect of a body corporate or its assets;
(d) except to reconstruct or amalgamate while solvent, a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(e) a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent or is otherwise wound up or dissolved;
(f) a body corporate is or states that it is insolvent as that term is defined in section 95A of the Corporations Act;
(g) as a result of the operation of section 459F(1) of the Corporations Act, a body corporate is taken to have failed to comply with a statutory demand;
(h) a body corporate is or makes a statement from which it may be reasonably deduced that the body corporate is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act;
(i) a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable law;
(j) a body corporate ceases to carry on business; or
(k) anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Jurisdiction means the State or Territory in which the Club is located;
Late Cancellation Notice means:
(a) cancelling via the App less than 8 hours before a fitness class, Additional Service or bathhouse session; or
(b) cancelling via the App less than 24 hours before a personal training session.
Member has the meaning given to it in clause 1.1 .
Membership Fee has the meaning given to it in clause 3.2 .
Membership Period has the meaning given to it in clause 2.1 .
Monthly Membership has the meaning given to it in clause 2.1(b) .
No-Showmeans a Member who has:
(a) booked into a personal training session, Additional Service, bathhouse session or fitness class;
(b) not attended the relevant personal training session, Additional Service, bathhouse session or fitness class; and
(c) failed to provide notice to the Club via the App.
Online Account means the account created by the Member when purchasing their Membership on the online.
Related Body Corporate has the meaning given to it in section 9 of the CorporationsAct.
Representative means an officer, employee, agent, representative, contractor or subcontractor of the relevant party.
The Commons Health Club refers to the health club facilities operated under The Commons brand.
Services means the Services outlined in clause 1.4.
Staffed Hoursmeans the hours listed on the App and website.
Start Date has the meaning given to it in clause 2.1 .
Yearly Membershiphas the meaning given to it in clause 2.1(a)
23. Interpretation
23.1 In this Agreement, unless a contrary intention is expressed:
(a) headings and italicised, highlighted or bold type do not affect the interpretation of this Agreement;
(b) the singular includes the plural and the plural includes the singular;
(c) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(d) a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality);
(e) a reference to any thing (including any right) includes a part of that thing, but nothing in this clause 23.1(e) implies that performance of part of an obligation constitutes performance of the obligation;
(f) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this Agreement and a reference to this Agreement includes any clause, annexure, exhibit and schedule;
(g) the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in this Agreement do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary; and
(h) a reference to a document (including this Agreement) includes all amendments or supplements to, or replacements or novations of, that document.
