1. Introduction

1.1 These terms and conditions (“Terms”) govern your membership at 444 Hera Pty Ltd ABN 70 677 606 423 (“we, us, our or the Studio”). 

1.2 By signing these Terms or continuing to use our services as a Member, you are entering into a legally binding contract with us where you become a Member of our studio. These Terms set out your rights and responsibilities as a Member. If you do not agree with these Terms, you must not access or use the Studio as a Member. 

1.3 We reserve our right to change these Terms at any time, without notice to you. When we change these Terms, we will also update the “Date of last update” at the top of these Terms.

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2. Definitions

2.1 The following definitions apply to these Terms:

(a) ACL means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth);

(b) Biller means the third party direct debit service we use from time to time;

(c) Direct Debit Payment Agreement means the periodic billing agreement you enter into with our third party biller;

(d) Facilities means the facilities available at the Studio;

(e) Fees means the fees that are payable under these Terms from time to time and as specified by us;

(f) Late Cancellation Fee means the fee you pay for cancelling a Session pursuant to clauses 6.1 and 6.3. The current Late Cancellation Fee is $15.00 but may change from time to time;

(g) Member means a 444 Hera Membership holder; 

(h) Membership means another word used to refer to these Terms;

(i) Membership Fees means the fee you pay to access the Services from time to time and as specified by us;

(j) Minimum Term means the minimum period specified from time to time by us for which you must hold a Membership before you are able to cancel or alter your membership;

(k) Ongoing Agreement means an agreement that continues on an ongoing basis after the Minimum Term until terminated under clause 9;

(l) 444 Hera Privacy Policy means the 444 Hera privacy policy which is available at our website;

(m) Pre-Exercise Questionnaire means any medical history, client intake or other screening questionnaire we require you to answer;

(n) Products means any products that are sold at the Studio;

(o) Services means the health and fitness services available at the Studio or otherwise provided by us at any location (including any outdoor activities);

(p) Session means a 444 Hera class conducted at our Studio;

(q) Start Date means the date these Terms commence, being, if our Studio is open, the date you sign these Terms, otherwise the date our Studio opens or the day we notify you that our Studio has opened, whichever is later;

(r) Studio means our 444 Hera Fitness branded studio;

(s) Termination Fee means the fee you pay to cancel your Membership from time to time and as specified by us;

(t) Written Notice means notice in writing by email or post to the parties' last known address and in the case of notice from you to us, must include your name, contact details and Membership number.

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3. Cooling Off Period

3.1 Your Membership is subject to a cooling off period of seven (7) days, commencing on the Start Date.

3.2 A request for termination of your Membership during the cooling off period must be made by written notice.

3.3. If these Terms are defined as an unsolicited consumer agreement under the ACL, your Membership is subject to a cooling off period of ten (10) days and your request for termination may be written or oral.

3.4 If you cancel your agreement under this clause 3, we will charge you for Services and Products already supplied but will refund any Membership Fees for any unused Services and/or for any Products you return which are unopened and undamaged.

 

4. Minimum Age

4.1 If you are 12 to 17 years of age, you may only become a Member if your parent or legal guardian:

(a) Consents and signs these Terms;

(b) Accompanies you to the Studio on each and every visit (for Members between the age of 12 and 15); 

(c) Accepts responsibility to ensure you comply with these Terms; 

(d) Confirms each Pre-Exercise Questionnaire you complete; and

(e) Agrees to rectify any breaches of these Terms.

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5. Health and Safety and Acceptable Conduct

5.1 Your condition:

(a) When you sign these Terms and each time you use the Studio, the Facilities or the Services, you must ensure you are in good physical condition and know of no medical or other reason why you should not exercise.

(b) If you are unsure of your condition, you must not use the Studio, the Facilities or the Services until you have sought appropriate medical guidance and approval. 

(c) You agree to give us all relevant personal, health and fitness information before and during the course of any exercise program or other activity. 

(d) You also agree to complete our Pre-Exercise Questionnaire and provide accurate and honest information.

(e) In some case, responses you give will require that you get medical guidance or clearance before 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. 

(f) You warrant that the information you give us will be accurate and not misleading in any way. 

(g) You must not use the Studio or its Facilities and Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health or safety or that of other Members and others.

(h) You acknowledge that 444 Hera is not liable for any injury or loss you suffer as a result of your condition or failing to disclose the relevant information in relation to your condition.

5.2 Action for risky or inappropriate conduct:

(a) If you behave in a hazardous, seriously inappropriate or illegal manner, we may:

(i) Cancel and/or suspend your Membership;

(ii) Prohibit you from acquiring another Membership, accessing the Facilities and/or receiving the Services; and/or

(iii) Take any other action we consider to be reasonably necessary.

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6. Session Attendance 

6.1 If you have reserved your place for a Personal Training Session and fail to cancel at least 24 hours in advance, the Session will be forfeited and payment for the Session will be required.

6.2 If you have reserved your place in a Group Session and fail to cancel at least 8 hours in advance, you will incur a Late Cancellation Fee. This Late Cancellation Fee is to cover the costs of staff.

6.3 If you arrive more than 5 minutes late for your Session, you will lose your spot and may incur a Late Cancellation Fee. 

6.4 You must be on time to a Session to properly stretch and warm-up prior to engaging in a Session. 

6.5 No entry into a Session is allowed after 5 minutes from the starting time.

6.6 You must come to a Session fully prepared for strenuous activity. This includes being dressed appropriately with closed running shoes, athletic shorts/pants, athletic t-shirt etc and bringing a towel and water bottle.

6.7 We reserve the right to refuse entrance into the Studio if you are not dressed appropriately.

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7. Putting your Membership on Hold

7.1 You may temporarily suspend or freeze your Membership for any reason for a minimum of your billing period to a maximum of 60 days by asking us in writing. 

7.2 In any 12 month period, you can freeze your Membership up to 2 times and for a maximum of 60 days. 

7.3 You are unable to cancel your Membership whilst it is on hold.

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8. Assignment

8.1 Acting reasonably, we may assign or novate our rights under these Terms at any time without your prior consent, provided we are not in material default under this Agreement. 

8.2 You may not assign, transfer or novate your rights under these Terms without our written consent, which we won't unreasonably withhold.

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9. Cancellation

9.1 Cancelling during the Minimum Term:

(a) If you wish to cancel during the Minimum Term, you must provide us with at least 30 days notice and make payment of the Termination Fee.

9.2 Cancelling on or after the Minimum Term when your Membership is an Ongoing Agreement:

(a) After the Minimum Term, your Membership is an Ongoing Agreement that will continue after the Minimum Term unless you tell us in writing at least 30 days before the end of the Minimum Term that you wish to cancel. 

(b) If you tell us before the end of the Minimum Term but less than 30 days before, your Membership will continue for another 30 days before it ends. 

(c) If your Agreement continues after the Minimum Term, you can cancel any time on at least 30 days Written Notice. You must pay all Membership Fees, as normal, that fall within the 30 day notice period and you can continue to use your Membership during this period.

9.3 Other ways to Cancel your Membership:

(a) You can cancel your Membership immediately and without paying your next due Membership Fee if:

(i) You have contracted a permanent sickness or physical incapacity during the term of your Membership which prevents you from receiving Services; and

(ii) The request is accompanied by a medical or death certificate evidencing the permanent sickness or physical incapacity.

(b) You become bankrupt and provide us with proof;

(c) You become entitled to cancel at law; and/or;

(d) You permanently relocate your place of residence to more than 30 km from any 444 Hera Studio and you give us proof of your relocation to our satisfaction.

9.4 Cancellation by us:

(a) In addition to our other rights under these Terms, we may cancel your Membership if you breach any obligation under these Terms that:

(i) Is unable be remedied; and/or

(ii) You do not remedy such breach within a reasonable period of time.

(b) If we cancel your Membership under clause 9.4(a), we may charge your next due Membership Fees and recover any damages we suffer which are caused by your breach.

(c) We may cancel your Membership if you become bankrupt or insolvent. You warrant to us that you are not bankrupt or insolvent and are able to pay all amounts due by you under these Terms at the time of joining. You agree that you will tell us promptly if you believe you will be unable to pay your Membership Fees for an extended period.

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10. Fees, Refunds and Expiry

10.1 General:

(a) The Fees you have to pay are provided by us and are subject to change from time to time with notice to you.

(b) If you do not make any payment when it is due, your Membership may be suspended and you could be refused Services until all outstanding amounts are paid. 

(c) Fees may continue to accrue during any suspension period. 

(d) If Fees are unpaid for an extended time, your Membership may be terminated and in such case, you will be liable for any unpaid amounts.

10.2 Ongoing Agreement:

(a) If your Membership is an Ongoing Agreement, you agree to pay your Membership Fees by instalments in advance. 

(b) If your Membership continues beyond the Minimum Term in accordance with these Terms, you must continue to pay Membership Fees periodically in advance until your Membership ends.

10.3 We may change any Fees, including increase the Fees, by providing you with a minimum of 30 days Written Notice.

10.4 Refunds:

(a) Except where required by law, we do not offer refunds outside of the Cooling Off Period.

(b) We can deduct Fees and charges that you must pay under these Terms from any refund you are entitled to.

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11. Direct Debit

11.1 If you have elected to pay any Fees by direct debit then this will be through our Biller.

11.2 You will be provided with a copy of the Direct Debit Payment Agreement of the Biller which applies to any direct debit services.

11.3 The Direct Debit Payment Agreement, which we are not a party to, is entirely separate to these Terms and your Membership. We are not liable for any loss or damage suffered as a result of the Direct Debit Payment Agreement.

11.4 You acknowledge and agree that we may change our Biller and that we and/or the current Biller may assign or novate all existing Direct Debit Payment Agreements to a new payment provider.

11.5 You consent to us and/or the current Biller providing your personal information (including, but not limited to your payment details) to any new payment provider.

11.6 By nominating a credit or debit account, you authorise our Biller to deduct from that account all Fees and other charges you are or may become responsible for payment of under this Agreement and the Direct Debit Payment Agreement.

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12. Changes to these Terms

12.1 We may make changes to these Terms from time to time.

12.2 Should we make changes to these Terms, we will provide you with 30 days written notice. 

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13. Liability, Release and Indemnity

13.1 Statutory Guarantees

(a) The ACL provides certain guarantees, including that our services will be rendered with due care and skill and are reasonably fit for purpose. We do not exclude or limit:

(i) The application of any provision of any statute or law (including the ACL) where do to so would contravene any statute or cause any part of this clause 13 to be void; or

(ii) Direct losses and damages that arise only as a result of our gross negligence.

13.2 Except where clause 13.1 applies:

(a) We exclude all statutory liability, tortious liability (including but not limited to liability in negligence), conditions and warranties implied by custom, the general or common law or statute, liability for all direct, economic, consequential or indirect losses, expenses, damages and costs incurred by you, arising out of or relating to the Facilities, Services, the Products and/or these Terms, and in particular, we are not liable for death or injury caused by our negligence or breach of any implied terms that Services will be provided with reasonable care and skill at common law.

(b) Our liability to you for any breach of any implied provision of these Terms is limited, at our option, to refunding the price of the Products or Services in respect of which the breach occurred, or to providing or replacing those Products or Services again.

13.3 Nothing in these Terms is intended to exclude or restrict the application of consumer protection legislation that implies conditions or warranties into contracts for the supply of goods or services.

13.4 We are not liable to you for any personal property that is damaged, lost or stolen while at the Studio.

13.5 You agree to pay for any loss or damage you cause to other people, the Studio, the Facilities or any equipment, goods or property at the Studio or the Facilities.

13.6 By entering into these Terms, you hereby release and indemnify us, our staff, employees, contractors, and other participants, with respect to any and all injury, disability, death or loss or damage to person or property, whether arising from our negligence or otherwise, that may arise out of or in connection with your use any of the equipment or the facilities provided by us, your participation in any activity, or any incident that occurs while using the Studio and its services or participating in any activity.

13.7 To the extent permitted by law, we hereby exclude any liability to you for any injury, loss or damage to you or your property sustained by you or any other person for any costs, charges and expenses incurred by you arising from or in connection with these Terms and/or the Services provided by us and including any act or omission by us.

13.8 You expressly agree that this release is intended to be as broad and inclusive as permitted by law. If any part of these Terms are void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. You acknowledge that the remainder of these Terms have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

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14. Assumption of Risk

14.1 You agree and acknowledge that:

(a) Your use and access to the Studio is at your own sole risk;

(b) Risk of injury from using equipment and the Facilities and Services in the Studio or participating in activities is significant, and may include permanent paralysis or death and you knowingly and freely assume all such risks;

(c) We purchase or lease the fitness and exercise equipment as well as the Facilities and Services from third parties and therefore do not manufacture any of the equipment, and we may not be held liable for defective products or equipment;

(d) You will not hold us liable for any personal injury, damage to or loss of belongings which may arise from ours, or our staff, members, clients, contractors or associates, negligence;

(e) Whilst at the Studio you may at times be unsupervised and you assume all risks associated with using any fitness and exercise equipment, the Facilities and Services and exercising alone without the aid and presence of any Staff;

(f) Subject to these Terms, you are not entitled to bring any guests to the Studio without our prior written consent, and if you do so, we may, at our sole discretion, suspend or cancel your Membership and the remainder owing on your Fees will be a debt due and payable to us; and

(g) We have the right to cancel or suspend your Membership and exclude you from the Studio (temporarily or permanently at our sole and absolute discretion) if you do not behave in an orderly manner, are under the influence of alcohol or drugs, are abusive to Staff and/or other members, use equipment improperly, dangerously or in a way that may lead to personal injury (whether to you or others) or you cause property damage of any kind, or do not adhere to any of these Terms.

 

15. Studio Closure

15.1 We are not liable if you cannot use our Facilities and Services due to anything beyond our reasonable control.

15.2 If that failure or delay continues for more than 30 days, you or we can cancel your Membership with immediate effect by telling the other party in writing.  

15.3 We reserve the right to make part or all of the Studio and/or Facilities and Services unavailable for up to two (2) weeks during each calendar year for any reason, in which case we will extend your Membership by the time you are unable to use the facilities and services without extra charge.

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16. Privacy

16.1 From when you apply for a Membership, you must provide us with, and we will have access to, personal information about you, including information relating to your health and finances. 

16.2 You must advise us of any changes to your personal, contact and payment information as soon as possible after the changes occur. 

16.3 By signing these Terms, you consent to us collecting, using, disclosing and dealing with your personal information in accordance with 444 Hera’s Privacy Policy available on our website.

16.4 You acknowledge that the 444 Hera may take photos, videos and/or audio recordings ('Material') of Sessions and/or the Studio which you may appear in. You consent and grant permission to the 444 Hera to take, use and/or distribute this Material for promotional purposes. 

16.5 You acknowledge that you will provide the Studio with express notice if you do not wish to be featured in any Materials.

16.6 The Studio may have CCTV security cameras recording in and around the Studio on a 24/7 basis (except in bathrooms). The CCTV is used for security purposes but does not guarantee against harm. This footage will be stored and used in accordance with our Privacy Policy. 

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17. Complaints and Feedback

17.1 If you have any concerns about the Services, the Facilities or your Membership please provide us with Written Notice.

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18. General Provisions

18.1 You agree that we have not made any representations that you have relied on to enter into these Terms.

18.2 This Agreement constitutes the entire agreement between us and you. 

18.3 These Terms, and all related matters, shall be governed and interpreted by the laws of New South Wales.

18.4 Any dispute under these Terms shall be subject to the exclusive jurisdiction of the Courts of New South Wales.

18.5 If the any part of a provision of this Agreement is unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction only and the remaining provisions retain their full effect.