(Applies to Casual Users and Members)

1. INTRODUCTION AND CONTRACT

1. Welcome to DynamiQ.

2. Your entitlement to use Our Facilities is governed by Our Terms.

3. By submitting a DynamiQ Application You agree to enter into a Contract with Us subject to these Terms.

4. These Terms apply to both Members and Casual Users.

5. It is important that You have read and understood all these Terms prior to signing or submitting a DynamiQ Application. If You have any questions, please ask Us before You sign or submit Your DynamiQ Application.

6. We reserve the right, at our sole discretion, to reject any DynamiQ Application.

7. If the terms of the Contract differs from anything You were told at Our Facilities or over the phone, the Contract applies unless you have received written confirmation from Us agreeing to any such differences. 

8. We review these Terms periodically and may update and amend these Terms from time to time. We will take reasonable steps to notify You of any changes to these Terms. 

9. Once Your DynamiQ Application is accepted, Your entitlement to use Our Facilities will start on Your DynamiQ Start Date.

2. DEFINITIONS AND INTERPRETATION

   1. Words and expressions used in these terms and conditions, unless otherwise expressed have the following meanings:

Application for Membership means the form, as required by Us in such format as We approve from time to time, for a person to submit a request for Membership to Us.

Application for Use means the form, as required by Us in such format as We approve from time to time, for a person to submit a request to use Our Facilities.

Billing Services Provider means Hapana (Australia) Pty Ltd ACN 609 603 401 or such other provider as we may advise You of from time to time.

Casual User means a User who does not have a Membership.

Contract means the contract between You and Us entitling You to be a User which consists of your DynamiQ Application, these Terms and the Rules.

Corporate Membership means a relationship between ourselves and an organisation which gives that organisation’s employees benefits, such as discounts on User Fees or other benefits.

DDR means a Direct Debit Request under which You authorise Us or Our Billing Services Provider to deduct payments for Your User Fees from an account nominated by You and acceptable to Our Billing Services Provider.

DynamiQ Application means an Application for Membership or an Application for Use.

DynamiQ Contractor means a contractor engaged by Us to provide a User Entitlement.

DynamiQ Fitness App mean our ‘App’ available for download from, or as identified on, Our Website as may be updated, amended or replaced from time to time.

Facilities means Our gym, fitness studio, wellness and recovery facilities, retail and other amenities that We may make available to Users from time to time.  

Fitness Assessment Form means a form, as required by Us in such format as We approve from time to time, for a person to provide us with details of their health and fitness.

Inappropriate Behaviour has the meaning given that term in Section 10.7.

Member means a User who has a Membership.

Member’s Obligations means a Member’s obligation to pay to Us all amounts required to maintain their Membership and to comply with the Contract. 

Membership means a membership with Us which, subject to compliance with the Member’s Obligations, entitles the Member to use some or all of the Membership Benefits for a minimum term. 

Membership Benefits means, subject to your Membership Type, the right to use some or all of Our Facilities and such goods and services as identified by Us from time to time that are provided or supplied by Us or Our approved third parties because of a person’s Membership Type.

Membership Type means a type or category of Membership.

Membership Fees means the User Fees payable in respect of a Membership.

Our Team Members means Our employees and, whilst performing activities in their capacity as Our contractor, DynamiQ Contractors.

Party means either You or Us as the context required and Parties means You and Us collectively.

Periodic Payment Arrangement means an arrangement whereby a Member is required to make agreed periodic payments (i.e. weekly, fortnightly or monthly) in advance in respect of their Membership. 

Pre-Paid Term Member means a Member who has paid ‘up front’ for their Membership.

Privacy Policy means Our privacy policy, a copy of which is available on Our Website, as may be updated and amended by Us from time to time. 

Rules mean the rules of conduct that apply to all Users, copies of which are found on signage at our Facilities or on Our Website, as may be updated and amended by Us from time to time.

Staffed Hours means times, as determined by Us from time to time, when one of Our employees or DynamiQ Contractors or agents is physically present at Our Facilities to supervise Users.

Start Date means the date notified by Us to You once we accept Your DynamiQ Application.

Terms means these terms and conditions as may be updated and amended by Us from time to time.

User means a person that is entitled to use Our Facilities and includes a Casual User and a Member.

User Entitlements means the rights, entitlements and benefits that We give to a person because they are a Member (including Membership and Membership Benefits) or because they are a Casual User. 

User Fees means the fees payable by a User in respect of their User Entitlements and, in respect of a Member, includes their Membership Fees. 

We, Us, Our or DynamiQ means collectively DynamiQ Fitness Pty Ltd ACN 688 014 753 and any related body corporate or related entity as defined in the Corporations Act 2001 (Cth) their successors in title and assigns and their employees, servants and agents.

Website means the content found at the domain www.dynamiqs.com.au as may be updated, amended or replaced from time to time.

You, Your, Yourself means the person specified as the User in Your DynamiQ Application.

2. Interpretation

Unless the contrary intention appears, in the Contract:

1. any liability incurred by We, Us, Our or DynamiQ under the Contract is incurred severally by those parties set out in the definition of We, Us, Our or DynamiQ;

2. labels used for definitions are for convenience only and do not affect interpretation; 

3. the singular includes the plural and vice versa; and

4. a reference to a ‘person’ includes an individual, a body corporate, a partnership, a joint venture, an unincorporated association and an authority or any other entity or organisation.

3. RULES

1. When You attend Our Facilities or use any User Entitlements to which You are entitled You must comply with the Rules.

2. If You breach any of the Rules:

1. we will respond in a way which we consider fair and reasonable having regard to the nature and severity of the breach which may include:

1. a written warning; or

2. suspension or cancellation of Your User Entitlements, without being entitled to any refund for any prepaid User Fees, and if You are a Member, termination of Your Membership; and

2. which causes Us or another person cost, loss or damage, You indemnify and will keep indemnified Us or that person for such cost, loss or damage.

3. We may update, change, add to and vary the Rules from time to time and will take reasonable steps to inform you of the Rules by making them available at Our Facilities and on Our Website. 

4. BEFORE YOU USE OUR FACILITIES 

   1. Before You use Our Facilities You:

1. must complete and provide Us with a Fitness Assessment Form; and

2. may be required to participate in an orientation or induction to familiarise Yourself with Our Facilities or the operations of Our Facilities.

2. It is Your responsibility to book in an orientation or induction. 

5. MEMBERSHIP

   1. Membership Types, associated Membership Benefits, Membership Fees,  durations of Membership and eligibility for Membership are set out on Our Website and the DynamiQ Fitness App from time to time.

   2. We may:

1. introduce any new Membership Type at any time; and 

2. by giving 30 day’s notice:

1. update these Terms in so far as they relate to You;

2. withdraw or vary existing Membership Types and Membership Benefits associated with Membership Types; and

3. vary Membership Fees.

3. You may request Us to cancel Your Membership within 30 days of Us issuing notice of any change in these Terms, increase in Membership Fees or other changes to Your Membership. You will be deemed to have accepted any changes to Your Membership by continuing to use Your Membership after the expiry of the 30 day notice period.

4. The availability of Membership Benefits to Members is always subject to availability and the capacity of Our Facilities.

5. We may from time to time provide Corporate Membership to an organisation.

6. If Your Membership or User Entitlements is associated with a Corporate Membership:

1. the benefits of such association will continue only:

1. for so long as You are employed with the organisation to which We have agreed to give a Corporate Membership; or

2. until We terminate the Corporate Membership with that organisation; and

2. You will be asked from time to time to produce evidence to Us of Your continued employment with that organisation and if You fail to produce evidence to Our reasonable satisfaction, We may:

1. ask You to reimburse Us for any discounts You have received from the time You were not entitled to be associated with the Corporate Membership; and

2. reset Your User Fees and User Entitlements to the standard rates and User Entitlements.

6. YOUR MEMBERSHIP 

   1. This section 6 applies to You only if You are a Member.

   2. The Membership Benefits You receive with Your Membership are determined by the Membership Type you select on Your Application for Membership.

   3. We may from time to time temporarily suspend Membership Benefits. If We do so, We will endeavour to give you as much notice as We reasonably can having regard to the reason for the suspension.

   4. All billing and requests to change Membership Type must be submitted electronically through Our Website or the DynamiQ Fitness App. 

   5. We reserve the right to approve or refuse any request to change Membership Type. You acknowledge that We may not approve a request where You have unpaid User Fees owing to Us.

   6. Unless you have held a Membership with Us that ended within the previous 3 months, You may cancel Your Membership at any time during the first seven (7) days from Your Start Date (‘Your Trial Period’).

   7. To cancel Your Membership during Your Trial Period, You must complete the forms required by Us via Our Website or the Dynamic Fitness App and return the access key that You were provided.

   8. If you have used Your Membership during the Trial period, we will refund any amounts payable to You, less:

1. User Fees for each visit you made to our Facilities; 

2. the fees for any training packages or other Membership Benefits You have received or enjoyed; and 

3. a reasonable administration charge. 

There will be no refund provided for any personal training packages.  A reasonable administrative fee may be payable by You if you do not return the access key that you were provided. Details of the fees, costs and expenses that may apply from time to time are identified on Our Website or the Dynamic Fitness App.

9. After Your Trial Period has expired, You agree to the minimum term of Your Membership Type as specified in Your Application for Membership.

10. On the expiry of a Membership term, unless:

1. You renew Your Membership for a further fixed term; or

2. provide Us with notice of termination prior to the expiry of the Membership term, 

Your Membership will automatically continue, and You will continue to be liable for periodic payments unless or until:

3. You give Us 14 days written notice of termination of Y our Membership. We will respond to such notice within 7 days; or

4. We give you not less than 30 days’ notice of the termination of Your Membership. 

7. CASUAL USERS 

   1. This section 7 applies to You only if You are a Casual User.

   2. The types of Casual User, associated User Entitlements, User Fees and conditions attaching to Casual Users are set out from time to time on Our Website or the DynamiQ Fitness App.

   3. We may from time to time temporarily or permanently suspend Your User Entitlements. If We do so, We will endeavour to give You as much notice as We reasonably can having regard to the reason for the suspension.

   4. The availability of User Entitlements to Casual Users is always subject to availability and the capacity of Our Facilities.

   5. We may at any time and from time to time:

1. update these Terms in so far as they relate to You;

2. introduce different types of Casual Users with different User Entitlements; and 

3. vary User Fees in respect of User Entitlements applicable to Casual Users.

6. You will be deemed to have accepted any changes to these Terms or User Entitlements applicable to Casual Users by continuing to use Our Facilities.

7. Where You have prepaid for User Entitlements but are unable to use those User Entitlements due to Your own circumstances (i.e. health, change of mind, moving house or other reason) You are not entitled to any refund for the unused portion of the prepaid User Entitlements. 

8. AGE

   1. If You are under 18 years old and wish to become a User:

1. We reserve the right to approve, at our sole discretion, Your DynamiQ Application;

2. a parent or guardian must:

1. sign all documents required by Us (including Your DynamiQ Application and Fitness Assessment Form); and 

2. accompany You at all times that you attend Our Facilities; and

3. by signing Your DynamiQ Application on Your behalf, Your parent or guardian acknowledges and agrees to be fully responsible for:

1. ensuring that Your User Fees are paid and kept up to date; and

2. all claims, actions, damages, injuries and loss suffered by Us or any other person, which You cause or contribute to. 

2. If You are under 18 years old and Your DynamiQ Application has been approved You (and your parent or guardian) acknowledge and agree that:

1. We reserve the right to refuse You access to Our Facilities if You attend Our Facilities without Your parent or guardian present;

2. You are NOT allowed entry to Our Facilities outside of the Staffed Hours; and 

3. We may ask You for a doctor’s clearance and require You to obtain an exercise program from a personal trainer before You are allowed access to our Facilities.

9. ACCESS AND ACCESS KEYS

   1. Full details of normal opening hours are available on Our Website and the DynamiQ Fitness App.

   2. We may vary Staffed Hours from time to time at out absolute discretion.

   3. When you become a Member or Casual User You will be given an access key and You consent to have Your photograph taken to confirm Your identity on entry.

   4. You must present Your access key for security and verification on each visit to Our Facilities.

   5. If You visit Our Facilities without a valid access key or photo identification, We may refuse You entry.

   6. You should not ask or expect Our Team Members or any other person to let you into Our Facilities at any time if You do not have Your access key.

   7. You may not loan Your access key or permit it to be used by any other person.

   8. Any lost or misplaced access keys will be replaced at Your cost and expense which must be paid by You prior to the issue of a new access key. Details of the fees, costs and expenses that may apply from time to time are identified on Our Website or the Dynamic Fitness App.  

   9. If You provide access to others without the written consent of Our Team Members:

1. You will be liable to pay a fee of $50.00 which is payable immediately; 

2. You authorise Us to direct debit the fee of $50.00 from your bank account or credit card; and

3. at our sole discretion, We may suspend or cancel Your User Entitlements. 

10. We may temporarily close certain areas of Our Facilities from time to time without notice for cleaning, decorating, repairs, renovations or for special functions, press events and holidays.

11. If We close certain areas of Our Facilities, We will endeavour to give you as much notice as We reasonably can having regard to the reason for the closure.

12. We do not reduce Your User Fees because Our Facilities or part of them are temporarily closed.

10. YOUR CONDUCT

    1. While attending Our Facilities You must follow any reasonable direction of Our Team Members relating to the use of Our Facilities, health, safety, security or related matters.

    2. If You are ever not sure how to operate any equipment properly, You must ask one of Our Team Members to demonstrate the use of the equipment before You use it.

    3. We are not responsible and accept no liability for any injury to You or any other person caused by Your improper use of any of Our equipment.

    4. If You choose to use Our Facilities outside of Staffed Hours, You do so at your own risk. You must be cautious, and You take responsibility for, your Own health and wellbeing when using Our Facilities and when entering or leaving Our Facilities.

    5. You are solely responsible for any damage which You may cause to Yourself, other Users or Our Facilities (including but not limited to services, products or equipment) if such damage is caused by Your wilful act or negligence.

    6. You must not conduct Yourself in a manner which will, or may cause, harm or discomfort to Yourself or other Users.

    7. Inappropriate Behaviour will not be tolerated at Our Facilities. Inappropriate Behaviour includes (but is not limited to):

1. being under the influence of alcohol or illegal drugs; 

2. horseplay or anti-social behaviour or any nature or description;

3. vulgar or derogatory language; 

4. abuse, of any description, of Our equipment, Our Team Members or other Users; 

5. inappropriate clothing or absence of clothing; 

6. displaying clothing or apparel with derogatory or insulting slogans, designs or logos; and 

7. breach of the Rules. 

8. If one of Our Team Members has reason to believe that You are undertaking Inappropriate Behaviour, You will be requested to correct Your behaviour and You may also be asked to leave Our Facilities. 

9. If You are requested to leave Our Facilities by one of Our Team Members You must immediately leave Our Facilities.

10. You agree that Our Team Member’s decision:

1. as to whether Your behaviour is Inappropriate Behaviour; and

2. to require You to leave Our Facilities due to Inappropriate Behaviour,

is conclusive. 

11. If You believe that Our Team Member’s decision:

1. as to whether Your conduct is Inappropriate Behaviour; or 

2. to require You to leave Our Facilities,

is incorrect, You may make a formal complaint via our complaint’s procedure set out on Our Website or the DynamiQ Fitness APP after you have left Our Facilities.   

11. HEALTH AND INJURIES

    1. You must provide Us with a completed Fitness Assessment Form with Your DynamiQ Application so that We can assess your general health, well-being and Your readiness for physical exercise and for the other purposes set out in Our Privacy Policy. 

    2. If You do not provide Us with a completed Fitness Assessment Form, You will not be able to use Our Facilities. If We believe that You have any health issue, We may require You to obtain a medical certificate before We consider Your DynamiQ Application further.

    3. You warrant that You have, and will continue for so long as You are a User: 

1. made, and will make Us, aware of any medical conditions or health problems which may be exacerbated by participating in physical exercise or using Our Facilities; and

2. for any current medical condition obtained, and for any future medical condition will obtain, clearance from a registered medical practitioner to participate in physical exercise.

4. You acknowledge and agree that:

1. You are aware of the possible health and safety risks associated with participating in physical activity and willingly engage in exercise which may from time to time be strenuous;

2. exercising and using Our Facilities and other User Entitlements may involve risk of injury to You and You exercise and use Our Facilities and other User Entitlements at Your own risk;

3. if Your medical condition changes, You must inform Us and You must provide Us with an updated Fitness Assessment Form; and

4. You will not attend Our Facilities or utilise any other User Entitlements if You are suffering from illness, disease, injury or any other condition that could present a risk to the health or safety of other Users, Our Team Members or Yourself.

5. Our Team Members are not medically trained and:

1. cannot and will not provide You with medical advice regarding Your medical fitness or health; and 

2. You acknowledge that any information on these topics that is made available is:

1. not professional advice; and 

2. only a guide as to the perceived limitations of Your exercise ability.

6. We reserve the right to refuse entry or terminate Your User Entitlements if, in Our reasonable opinion, You do not satisfy the medical or physical conditions required to safely use Our Facilities or participate in any activities offered by Us and which can be utilised with Your User Entitlements.

7. You agree to immediately notify Our Team Members of any:

1. injuries You sustain whilst attending Our Facilities or incurred in connection with Your use of any User Entitlement; 

2. injury or changes in Your health which may impact Your ability to continue Your exercise program or use of any User Entitlement; and

3. any need for You to receive medical treatment, in the event of an injury, accident or illness while at Our Facilities or use of any User Entitlement.

8. Should You, in the event of an injury, accident or illness while at Our Facilities, in the reasonable opinion of any of Our Team Members have a need to receive medical treatment, You consent to receiving such medical treatment.

12. PAYMENTS

    1. You are personally responsible for the payment to Us of Your User Fees as and when they fall due.

    2. Your User Fees are payable in advance in accordance with the User type selected on Your DynamiQ Application. A pro rata payment will apply if Your Start Date is not in line with the billing schedule set by Us.

    3. We reserve the right to use the services of our Billing Services Provider to process and deduct payments in respect of User Fees.

    4. If You have selected a direct debit option, Your User Fees will be directly debited from Your nominated bank account or credit card. By nominating a credit or debit account that is accepted by our Billing Services Provider, You authorise Us and Our Billing Services Provider to deduct from that account all fees and other charges you are responsible for under the Contract. Section 13 sets out more details of our arrangements with our Billing Services Provider. 

    5. It is Your responsibility to ensure that You have sufficient funds in Your nominated bank account when the scheduled payments are to be directly debited. If there are insufficient funds in Your nominated bank account, or there is another reason that Your account was unable to be debited, You will be responsible for any administration fees and or collection fees charged by Us and Our Billing Services Provider.

    6. If You fall into arrears in respect of any User Fees that are payable, all arrears must be paid by You in full before You can use Our Facilities or receive further User Entitlements. You authorise Us to deduct any arrears from Your nominated bank account or credit card provided to Us at any time without further notice to You.

    7. If You do not pay Your User Fees when due, We reserve the right to do any one or more of the following:

1. charge a reasonable late payment fee for any overdue amounts. This charge may change at any time in amount or frequency;

2. charge an administration fee to forward any outstanding accounts to a third-party party collection agency;

3. suspend Your User Entitlements and disable Your access key to refuse You entry to Our Facilities until full payment has been made to Us or Our collection agency; and

4. terminate Your User Entitlements.

Details of the fees, costs and expenses that may apply from time to time are identified on Our Website or the Dynamic Fitness App.

8. We are not liable for any fees incurred by You from Your designated bank or card provider for any late fees or charges incurred for failing to meet the direct debit agreement with Us or our Billing Services Provider.

9. If You seek to terminate the Contract or stop the automatic debit arrangement in a manner not prescribed in these Terms or the Rules, You may be liable to Us for damages for breach of contract.

10. You must tell Us if you are transferring or closing Your account or card, at least 7 days before Your next direct debit. You must also tell Us about any changes to Your account or credit card, such as an expiry date or number, at least 7 days before Your next direct debit.

11. All User Fees include all government taxes and rates and We reserve the right to change Your User Fees in line with any government tax and rate changes.

12. You authorise Us to charge any changes to your User Fees made in accordance with the Contract and instruct Our Billing Services Provider to make direct debits from Your nominated bank account or credit card for those varied User Fees without further notice to You.

13. USE OF BILLING SERVICES PROVIDER AND DDR’S

    1. Our Billing Services Provider administers and processes direct debit arrangements agreed to by members. Our Billing Services Provider makes periodic debits from your nominated bank account or credit card on Our behalf for Your User Fee payments at intervals and amounts as directed by Us in accordance with:

1. the Contract; and

2. the service agreement which you enter into when you make a DDR.

2. We will notify You of any change in Billing Services Provider.

3. Direct debits normally occur overnight, however, transactions can take up to 3 banking business days depending on your financial institution. There may also be delays in processing the debit due to:

1. a payment request being received by Our Billing Services Provider after their usual cut-off time;

2. a payment request being received by Our Billing Services Provider on a day that is not a banking business day in Sydney, NSW and Melbourne, VIC; or

3. there being a public or bank holiday on the day when the debit transaction is due to be processed or on any of the following days until the debit is processed.

4. Our Billing Services Provider charges fees for using its direct debit service. However, We pay Our Billing Services Provider’s fees and no other fee is payable by You to Our Billing Services Provider unless otherwise notified by Us to You.

5. We may charge You a separate ‘failed payment’ fee of $9.90 if You dishonour a payment.

6. You further acknowledge and agree:

1. You will contact Us, not Our Billing Services Provider directly if You wish to alter, defer, stop or cancel Your DDR;

2. Our Billing Services Provider:

1. may attempt to re-process any unsuccessful payments as instructed by Us; and

2. may appear as the merchant for a payment from Your credit card (including a debit or charge card). You acknowledge and agree that Our Billing Services Provider

3. is acting as an agent for Us and does not provide any goods or services (other than the direct debit collection services) to You for Us; 

4. has no express or implied liability in relation to the goods and services provided or to be provided by Us or the terms and conditions of any agreement that You have with Us;  and

5. will not be liable for any disputed transactions resulting from the supply or non-supply of goods or services and that all such disputes will be directed to Us, as Our Billing Services Provider is acting only as a direct debit agent for Us;

3. any dispute regarding a debit will be directed to Us and/or Our Billing Services Provider. If no resolution is forthcoming, You must contact Your financial institution;

4. You appoint Our Billing Services Provider as Your agent for the control, management and protection of Your personal information (relating to Us and your DDR) which is disclosed to Our Billing Services Provider;

5. You irrevocably authorise Our Billing Services Provider to take all necessary action (which Our Billing Services Provider may deem necessary) to protect or correct, if required, Your personal information, including (but not limited to) correcting account numbers and providing such information to relevant third parties and otherwise disclosing or allowing access to Your personal information to third parties in accordance with Our Billing Services Provider’s Privacy Policy which can be found on Our Billing Services provider’s website.

6. You irrevocably authorise, direct and instruct any third party who holds/stores Your personal information relating to Us and Your DDR to release and provide such information to Our Billing Services Provider; and

7. You authorise:

1. Our Billing Services Provider to verify with Your financial institution and/or correct details of Your account; and 

2. Your financial institution to release information allowing Our Billing Services Provider to verify Your account details.

14. CONTRACTORS

    1. You acknowledge:

1. We may use DynamiQ Contractors to provide Membership Benefits and User Entitlements;

2. there may be other services, including personal training services, offered at Our Facilities by contractors, licensees and others which are offered separately to Membership Benefits and User Entitlements; and

3. We are not responsible for any services offered by any third parties including fees or any associated costs, claims or refunds unless the relevant service is a service that we have identified as a Membership Benefit or User Entitlement that We have agreed to provide to You.

2. We are only responsible for the acts and omissions of a DynamiQ Contractor when they are providing goods and services pursuant to a contract with Us that requires them to provide Membership Benefits and User Entitlements to Users on Our behalf.

3. You may not without Our written approval (which we may withhold at our absolute discretion) engage, whether for payment or otherwise, anyone other than one of Our Team Member’s to provide you with personal training or instruction at Our Facilities. 

4. You release Us, agree not to hold Us liable and indemnify Us against any claims, demands, losses or damages suffered by You arising from Your use or acceptance of any third-party services or the negligence of such third parties. This indemnity does not extend to any claims, demands, losses or damages that has been caused by Our, or one of Our Team Members, negligence or default.

15. FREEZING YOUR MEMBERSHIP

    1. If You wish to request us to suspend Your membership, You must notify Us of Your request at least seventy-two (72) hours prior to any suspension beginning and complete any form that we may from time to time require.  Our requirements will be identified on Our Website or the Dynamic Fitness App.

    2. We will not agree to suspend Your Membership if Your User Fees are not paid up to date or if you owe Us any other money.

    3. The minimum suspension period is one fortnight, up to a maximum of three (3) full consecutive calendar months.

    4. If You request Us to suspend Your membership for more than three (3) months, You must provide us with evidence to support Your request which makes You unable to reasonably utilise Your Membership and the Membership Benefits, such as medical reasons or unavoidable absences such as relocation for work.

    5. If We agree to suspend Your Membership You will not be able to use Our Facilities or utilise any Membership Benefits whilst your Membership is suspended.

    6. You may have one full calendar month complimentary suspension per year, after which a reasonable administrative fee may apply. Details of the fees, costs and expenses that may apply from time to time are identified on Our Website or the Dynamic Fitness App. 

    7. To the extent permitted by law, suspension periods will not count towards Your contractual minimum term which will be extended by the number of suspended days taken.

    8. Membership may not be suspended during the notice period of a cancellation request and We will not backdate any suspension requests. You must request a suspension when You need it.

    9. We will not accept pro-rata payments or suspend Your direct debits outside an approved suspension period.

    10. If You are a:

1. Member with a Periodic Payment Arrangement, any applicable fee will be automatically direct debited from Your nominated bank account; or

2. Pre-Paid Term Member or on a payment arrangement, You must pay any applicable fee upfront.

16. DEFERRAL, CANCELLATION & TERMINATION OF MEMBERSHIP BY YOU

    1. Cancellation of Membership due to Sickness or Physical Incapacity

1. You may cancel Your Membership without penalty if:

1. You suffer from a permanent physical incapacity that renders you unable to use Our Facilities; and  

2. Your doctor provides certification that You are unable to use Our Facilities by reason of a permanent physical incapacity.

2. Where You are a Pre-Paid Term Member:

1. the unused portion of Your Membership will be calculated from the date We receive Your request to cancel your Membership and Your doctor’s certificate in accordance with section 16.1a.ii) above; and

2. You will be refunded the unused portion of Your Membership Fees less any applicable administrative fee, within 21 days. Details of the fees that may apply from time to time are identified on Our Website or the Dynamic Fitness App. 

2. Deferral of Membership due to Sickness or Physical Incapacity

1. You may defer Your Membership without penalty if:

1. You suffer from a temporary physical incapacity that renders you unable to use Our Facilities for a period of more than 10 consecutive days; and  

2. Your doctor provides certification that You are unable to use Our Facilities by reason of a temporary physical incapacity.

2. The maximum period You can defer Your Membership due to a temporary physical injury is 3 months. 

3. Casual Users

Casual Users who have prepaid for User Entitlements are not entitled to a refund if they are not able to use the User Entitlements that they have paid for, unless the reason that they are unable to use the User Entitlement is due to Our default.

4. Termination after Expiry of Minimum Term

I acknowledge that unless I provide written notice of termination of my Membership prior to the end of the fixed term of my Periodic Billing Agreement, I will still be liable for my User Fees until 14 days after I provide written notice of termination to You. I understand that DynamiQ must respond to its receipt of a written notice within 7 days 

17. TERMINATION OF MEMBERSHIP BY US

    1. In addition to any other reasons set out in the Terms, We may terminate Your User Entitlements immediately by notice to you if:

1. You, without our written approval, engage, whether for payment or otherwise, anyone other than one of Our Team Member’s to provide you with training or instruction at Our Facilities;

2. You misuse Your access key by allowing others to use it to access Our Facilities;

3. You commit a serious breach of Your Contract which is not capable of remedy;

4. You:

1. repeatedly breach Your Contract irrespective of whether the failures can be remedied or not; or

2. otherwise, breach Your Contract and the breach, if capable of remedy, is not remedied within 14 days of Us giving You notice to do so and informing You that Your User Entitlements will be terminated if You fail to do so;

5. You fail to pay any part of your User Fees for more than 14 days after falling due;

6. You provide us with details which You know to be false when submitted on Your DynamiQ Application or Fitness Assessment Form and which may have affected Our decision to approve Your DynamiQ Application; 

7. You, in Our reasonable opinion, have committed Inappropriate Behaviour that is serious enough to warrant terminate of your User Entitlements; or

8. You, in Our reasonable opinion, are not suitable to continue to use Our Facilities.

2. If We terminate Your User Entitlements for any of the above reasons, We may do any one or more of the following:

1. (without limiting any other right or remedy) recover any other reasonable costs and expenses We may incur as a result of Your breach or actions;

2. collect the full amount of Your User Fees for the remainder of the then-current billing period and any other arrears;

3. collect any User Fees and fees that are outstanding when Your User Entitlements are terminated; and

4. use third parties to assist in the collection of outstanding User Fees or other moneys owed and You will be liable for these costs.

3. If We, in our absolute discretion, decide to cease operation for more than 3 months, move the location of Our Facilities, cease providing Your Membership Type or for any other reason or circumstances whatsoever We may terminate Your Membership by giving You not less than 30 days’ notice.  Where We terminate your Membership under this Section 17.3, We must refund you any unused User Fees.   

18. PERSONAL TRAINING

    1. You may engage Us to provide personal training services by signing a personal training agreement with Us.

    2. All personal training sessions must be paid for by You in advance.

    3. Any cancellations must be made at least twenty-four (24) hours prior to the personal training session directly to Your personal trainer via SMS or phone call. You are responsible for ensuring the personal trainer receives adequate notification. Failure by You to provide notice will result in forfeiting the personal training session without any refund.

    4. If adequate notice is provided a make-up session must be arranged within the same fortnightly cycle otherwise Your personal training session is forfeited (unless otherwise agreed with Your personal trainer in writing).

    5. You may place Your personal training agreement on hold by providing notice to Us where your personal training sessions are held at least seventy-two (72) hours prior to the billing date. Notice is to be provided using the DynamiQ Fitness APP. Suspensions are for set time periods only and any charges after this period will not be refunded.

    6. All request for cancellations of personal training arrangements must be submitted to Us via the DynamiQ Fitness APP.  Details of any minimum notice periods and any fees that may apply from time to time are available on Our Website or the DynamiQ Fitness App

    7. If You:

1. have paid for personal training sessions in advance, they are non-refundable; and

2. fail to provide the required notice within the required time period the relevant charge will continue and We are under no obligation to refund or perform these personal training sessions.

19. GROUP TRAINING

    1. All bookings for group training can be made online, via Our Website or the DynamiQ Fitness App.

    2. You must sign in on entry to the class.

    3. If You have not booked for a class, You are not guaranteed a position within the class and We may refuse You entry to the class.

    4. If You are booked in for a class and need to cancel You are encouraged to cancel at least 24 hours prior to the class start, otherwise, it will be regarded as a late cancellation. 

    5. If You are booked in for a class and do not attend, You may be charged a reasonable administrative fee. Details of the fees, costs and expenses that may apply from time to time are identified on Our Website or the Dynamic Fitness App. 

20. SECURITY

    1. For security purposes, Our Facilities are under 24-hour camera surveillance and whether You are using Our Facilities, entering or leaving Our Facilities including changerooms, Your activities are recorded.

    2. We may keep recordings of surveillance in whatever format we deem appropriate, for as long as we may deem appropriate, and in such locations as we deem appropriate. We retain all rights (including intellectual property rights) to all recordings.

    3. You acknowledge that Our surveillance system does not protect You in or on Our Facilities.

    4. Photography and or videography by You of Our Facilities or of other Users is not allowed anywhere in Our Facilities without Our written permission which may be granted or withheld at Our discretion.

    5. You consent to having Your photograph taken and to you being recorded at any time whilst using Our Facilities and permit Us to use Your image in any photographs or recordings of You for press and promotional purposes.

21. YOUR PERSONAL INFORMATION

    1. You are responsible for advising Us of changes to Your personal information. If Your personal contact information or other details change, You must update Us via Our Website or the DynamiQ Fitness App as soon as possible for the purposes of billing, marketing and contacting You.

    2. We take the privacy of our members seriously and Our Privacy Policy is available at Our Facilities and on Our Website.

    3. Our Privacy Policy explains the ways in which we collect, use, store, protect and disclose your personal information.

    4. We collect personal information from You to provide You with the User Entitlements, to administer Your User Entitlements and for the other purposes described in Our Privacy Policy. In most cases, We collect Your personal information directly from You, including through your pre-exercise questionnaire, DynamiQ Application and Fitness Assessment Form  any other forms supplied by Us and in the course of Our other communications with You, which may occur through email, text or DynamiQ Fitness App or when you call or contact Our Team Members.

    5. If You do not allow Us to collect Your personal information, We may not be able to provide You with some or all of the User Entitlements, administer Your User Entitlements or conduct some or all of the other activities described in Our Privacy Policy.

    6. With Your consent, We may also collect personal information which relates to Your physical health or condition, including (without limitation) when You complete Your Fitness Assessment Form. 

    7. In order to provide the User Entitlements and for the purposes set out in Our Privacy Policy, We may disclose some of Your personal information to our related bodies corporate and other persons or entities as outlined in Our Privacy Policy. Should You default on payments due to Us, We may disclose Your personal information by notifying the default to a credit reference agency or third party to obtain payment from You.

    8. Our Privacy Policy explains how You may access and correct the personal information that we hold about You. It also sets out how You may contact Us to complain about a breach of the Privacy Act, and how We will deal with such a complaint. If You have any questions or concerns about privacy or if You would like further information about Our privacy practices, please refer to our Privacy Policy.

    9. By submitting Your DynamiQ Application You consent to the collection and use of Your personal information, including sensitive information, in accordance with our Privacy  Policy.

22. NOTICES

    1. Where We are required to provide any written notification, We will send the notice to You via one or more of the following:

1. the DynamiQ Fitness App; or

2. the email address or to the postal address as You advised in Your DynamiQ Application or any updated address that You have provided to Us since you submitted your DynamiQ Application.

2. Unless otherwise expressly specified in the Contract, where You must provide us with information or notice You must send it via one or more of the following:

1. the DynamiQ Fitness App; or

2. by email or postal address as specified on Our Website from time to time.

3. Any notice sent in accordance with this section will be deemed received by the intended recipient three (3) business days from the date it was sent.

4. You agree to us contacting You by phone on the phone number that You advised in Your DynamiQ Application or any updated phone number that You have provided to Us since you submitted your DynamiQ Application. 

23. INTERNET ACCESS AND SOCIAL MEDIA

    1. If You are using the internet and social media at Our Facilities, You must comply with these Terms and Rules.

    2. You are personally responsible for the content that You publish online, whether in a blog, social network or social computing site or any other form of user-generated media.

    3. We advise mindfulness, that what You publish will be public for a long time. In the circumstances, You agree to protect Your privacy and take care to understand a site’s terms of service.

    4. You acknowledge and agree to be careful when sharing Your location and to protect Your privacy and security.

    5. We are not responsible or liable for any breach of Your privacy, security or harassment or bullying which You may encounter online or while using Our internet, shared network or machinery.

    6. We may, from time to time, provide links to websites outside of Our Website. These linked sites are not under Our control and We are not responsible for and accept no responsibility for:

1. the conduct of companies and entities linked to Our Website; or

2. the performance or otherwise of any content or software contained in such external websites.

24. LIMITATION OF LIABILITY

    1. Under the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) (‘CCA’), We guarantee the services We supply are:

1. provided with due care and skill;

2. fit for any purpose You have told Us You are using the services for or for a result which You have told us You wish to achieve;

3. supplied within a reasonable time.

2. By entering into the Contract, you agree, to the extent allowed by section 139A of the CCA, to exclude or modify our liability to you for death, injury or the contraction, aggravation or acceleration of a disease caused or contributed to by our failure to comply with ACL guarantees.

3. This exclusion does not apply if your death, injury or the contraction, aggravation or acceleration of a disease is caused by our ‘reckless conduct’ (as defined in the CCA).

4. Nothing in the Contract excludes, restricts or modifies any terms; conditions; warranties; guarantees, rights or remedies which cannot be lawfully excluded, restricted or modified. Otherwise, unless expressly included in the Contract, all implied terms, conditions, warranties, guarantees, rights or remedies that can be lawfully excluded are excluded. In particular, but subject to the above, We are not liable for death or injury caused by Our negligence or breach of implied terms that the User Entitlements will be provided with reasonable care and skill at common law. This does not exclude Our liability for reckless conduct.

5. Subject to any breach by Us of the Contract or Our legal obligations You acknowledge and agree that to the extent permitted by law Us, Our directors or nominated agents, contractors, Team Members or shareholders are not liable for any loss, damage or personal injury suffered by You, whether directly or indirectly arising out of any act or omission by Us, Our directors, agents, contractors, Team Members or shareholders.

6. You acknowledge sole responsibility for any personal equipment or belongings. You promise not to unnecessarily bring valuables into Our Facilities. We will not accept responsibility for any loss, damage or theft of property belonging to or brought onto Our Facilities by You.

7. You agree to pay Us for any loss and damage to Our Facilities or any of Our property caused by You through a wilful, wrongful or negligent act or as a result of Your breach of the Contract.

25. COMPLAINTS AND FEEDBACK

    1. If you have any concerns about Our Facilities or User Entitlements You should first raise it with Our Team Members and, if You are not happy with the response, You may make a complaint via our complaint’s procedure, details of which are available on Our Website.

    2. If you believe that one of Our Team Members or other User harassed You, please make Us and the appropriate authorities aware immediately.

26. OTHER TERMS

    1. Any failure by Us or Our Team Members to enforce any of Our rights at any time for any period is not to be construed as a waiver of those rights. 

    2. Any failure by Us or Our Team Members to identify or act upon a breach of Your Contract or the Rules is not to be deemed to be an affirmation by Us that Your behaviour is acceptable.

    3. If any provision of the Contract is or becomes illegal, invalid or unenforceable, that provision will be deleted from the Contract, the remaining provisions are not affected and are valid and enforceable to the extent that the law allows.

    4. In the event that there is any conflict between the terms of the Contract and the Fitness Industry Code of Practice (as may be amended and replaced) the terms of the Fitness Industry Code of Practice prevail to the extent of the inconsistency. 

    5. The laws of the Australian Capital Territory apply to the Contract and the Parties submit to the non-exclusive jurisdiction of the Courts of the Australian Capital Territory.