Special Membership Agreement Terms and Conditions Summary
The Agreement is made between the City of Swan (Swan Active) and you. Before you enter into the Agreement please read it carefully as it outlines your rights and obligations as a Swan Active Member.
This page is a summary of the key terms of the Agreement. The Agreement is subject to the Cooling Off Period (i.e. a 7 day cooling off period). You may end the Agreement at any time within the Cooling Off Period without reason by notifying us in writing, including by email.
Summary of key terms:
| Key Term | Summary |
| Fees
(Types of Fees that may be payable) |
The following Fees apply under the Agreement:
· Membership Fees. These are the Fees for your Membership and for your access to the Facilities and Services associated with your Membership Type. The amount of the Membership Fees payable depends on your Membership Type. These Fees are charged upfront for a Fixed Term Membership and monthly for an Ongoing Membership.
· Lost Token Fees. If you lose your Membership Token, you will be charged a Fee to replace it.
· Administration Fees. These are Fees for Swan Active’s administration of the Agreement, and are payable in the following circumstances:
o When you cancel the Agreement during the Cooling Off Period. o When you cancel a Fixed Term Membership (if applicable).
· Casual Entry Fees. These Fees are payable when you access the Facilities and Services during the Cooling-Off Period, but will only be charged if you cancel your Membership during the Cooling-Off Period. They are not payable if you continue your Membership after the Cooling-Off Period. The amount of all Fees charged under the Agreement are published on Swan Active’s website at: https://www.swanactive.com.au/prices/. Swan Active reviews the Fees annually near the end of each financial year and if an increase is approved it will take effect on or after 1 July of the relevant year as published in the Government Gazette, WA. See clause 6 – Increase to Fees. |
| Special Membership | You will receive a 75% discount to your Membership Fees while you remain eligible for Special Membership. |
| Membership Types | Swan Active offers a variety of membership types including:
· Complete – access to all 3 Options listed below · Combo – access to 2 Options listed below of your choosing · Express – access to 1 Option listed below of your choosing · Bubs & You – access to the Gym, Fitness Classes and Crèche · Bubs & You + Pool – access to all 3 Options and Crèche · FIFO – special access for eligible persons to all 3 Options for the price of the “Express” membership. Options: · Gym · Fitness Classes · Swimming Pool, Spa, Sauna |
| Minimum Payment
(Minimum payment for your Membership) |
Your minimum payment will depend on your Membership Type and is as displayed at the time of completing your online Membership Application Form.
If your Membership Application Form is in paper, then your Minimum Payment will be displayed on that paper form. The total minimum payment does not include any Debit and Credit Card Fee that may be charged by the third party provider.
|
| Services
(Summary of the services on offer) |
Your right to access and use the services and facilities of Swan Active will depend on the terms of the Agreement, compliance with those terms (including payment of your fees), and your selected Membership Type.
Services may include access to and/or use of: · Fitness Classes (Group / Aqua) · Gym · Swimming Pool, Spa & Sauna · Personal Heath Consultant / Personal Exercise Plan · Crèche |
| Term
(Length of your membership) |
Swan Active provides 2 different term lengths:
· Fixed term of 12 months (Members are required to re-apply for membership at the end of each 12 month term) – with the start date as noted on your Membership Application Form. OR · Monthly ongoing (an initial period of one month commencing on the ‘start date’ as noted in your Membership Application Form and then continuing until you or Swan Active cancel your Membership under these terms). |
| Contact details | Attention: Centre Management, Swan Active Beechboro
Email: activebeechboro@swan.wa.gov.au Postal: 332 Benara Road, Beechboro 6063
Attention: Centre Management, Swan Active Ballajura Email: activeballajura@swan.wa.gov.au Postal: 3 Community Mews, Ballajura 6066
Attention: Centre Management, Swan Active Midland Email: activemidland@swan.wa.gov.au Postal: 27 Gray Drive, Midvale 6056
|
Special Membership Terms and Conditions
Effective 6 May, 2024
1. GENERAL
1.1 The minimum age to be a Member is 16 years old. If a person is a Minor or has a legal guardian and wishes to become a Member:
(a) the parent or guardian of that Minor or person:
(i) agrees to these terms and conditions in respect of the Minor or person and gives the releases and warranties set out in these terms and conditions;
(ii) will, where applicable, procure that the Minor or person to abide by these terms and conditions;
(iii) must attend the Location in person with the Minor or person and sign all relevant forms; and
(b) if the person is a Minor, that Minor must attend the Location in person with their parent or guardian and sign all relevant forms.
1.2 Any reference to “you” or “your” is a reference to the Minor or person who is the named Member in the Membership Form and the parent or guardian of that Minor or person who has signed the Membership Form.
1.3 By signing and submitting your Membership Form, you agree to the terms of the Agreement, and acknowledge and agree that you were provided with a copy of these terms and conditions, and you have read and understood them. The Agreement becomes legally binding upon Swan Active notifying you that your Membership Form has been approved.
1.4 You acknowledge that your Membership with Swan Active is governed by the terms of the Agreement (as amended from time to time in accordance with these terms).
1.5 The term of your Membership is set out in your Membership Application Form and generally in the Membership Summary.
2. COOLING OFF PERIOD
2.1 The Agreement is subject to a 7 day cooling-off period, commencing on the day you accept the Agreement and expiring on the day that is 7 days later (Cooling-Off Period).
2.2 You may cancel your Membership at any time during the Cooling-Off Period by notice in writing to Swan Active stating that you do not wish to proceed with your Membership. Notice must be received by Swan Active before expiry of the Cooling-Off Period.
2.3 Cancellation under clause 2.2 will take effect when the notice is received by Swan Active. You are encouraged to keep evidence that the notice was sent, or provided, to Swan Active.
2.4 Swan Active may you charge the Casual Entry Fee for each time you access the Facilities and Services during the Cooling-Off Period. Subject to clause 2.6(b), such Fees will only be charged after the Cooling-Off Period.
2.5 If you cancel your Membership during the Cooling-Off Period, Swan Active may charge you:
(a) the Administration Fee; and
(b) any unpaid fees under the Agreement, including any Casual Entry Fees payable under clause 2.4.
2.6 If you do not cancel your Membership within the Cooling-Off Period:
(a) you will continue to be a Member subject to these terms and conditions; and
(b) Swan Active must not charge you any Casual Entry Fees under clause 2.4.
3. MEMBERSHIP
3.1 Prior to being admitted as a Member, you must:
(a) complete and submit a “Membership Form”;
(b) provide sufficient evidence to support an application for a Special Membership to be applied to your Membership;
(c) have your photo taken to allow staff to identify you as a Member;
(d) nominate your Membership Type and select your payment option, which is either:
(i) an upfront payment for a fixed 12 month term Membership (Fixed Term Membership); or
(ii) an ongoing monthly Membership, which has an initial period of one month and continues on a monthly basis until you or Swan Active terminates the Membership in accordance with these terms and conditions (Ongoing Membership);
(e) if the Membership Type you have applied for provides access to either the gym or group fitness classes:
(i) complete and submit a “Swan Active Pre-Exercise Screening” Form; and
(ii) disclose any medical, physical or other disabilities or conditions, either past or present, which may affect your ability to safely access and use the Facilities and Services specified in your Membership Form, including disabilities or conditions which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of, your use of the Facilities and Services; and
(f) provide copies of any other documents that may be reasonably required by Swan Active to assess your application for Membership.
3.2 If you disclose any medical conditions or disabilities under clause 3.1 or 7.10, or if Swan Active otherwise suspects on reasonable grounds that you may not be able to safely access the Facilities or Services, then your ability to access the Facilities and Services is subject to your compliance with any requirement of Swan Active for you to:
(a) provide a medical certificate or other written confirmation from a doctor certifying that it is safe for you to use the Facilities and Services;
(b) provide a medical management plan for any severe medical conditions;
(c) sign a waiver of liability in respect of your use of the Facilities and Services; and
(d) if you are Minor or person who has a legal guardian – be accompanied by your parent or guardian at all times that you use the Facilities and Services,
and you acknowledge that Swan Active’s liability to you is limited by the Conditions of Entry (in particular the sections titled ‘Risk and Liability’ and ‘Waiver of liability – pool and aquatic facilities’), any waiver of liability that you sign, and by clause 14 of these terms and conditions.
3.3 You may immediately cancel your Membership under clause 12.2 if Swan Active requires you to provide, sign or do (as applicable) any of the things in clause 3.2.
3.4 You represent to us that all information provided in your Membership Form, and any other document provided in accordance with clause 3.1 is true, accurate and complete in all material respects and is not misleading or deceptive.
3.5 Your Membership entitles you to access the Facilities and Services specified in your Membership Form, as nominated by you and paid for in accordance with your Membership Type.
3.6 If you nominate an Ongoing Membership, you must submit a completed direct debit authority form (Authority Form) with your Membership Form. Ongoing Memberships are subject to the terms and conditions outlined in the Authority Form together with these terms and conditions.
3.7 If you nominate a Fixed Term Membership, your Membership ends at the conclusion of the 12 month Membership period. Swan Active will send you a reminder of this renewal 30 business days’ before the end of your Membership term. To renew your Membership, you must complete a new “Membership Application Form”.
4. SPECIAL MEMBERSHIP
4.1 All applications for a Special Membership to apply to a Membership Fee are subject to approval by Swan Active in its absolute discretion. Swan Active will notify you of its approval or rejection of your Special Membership application within 5 Business Days of receipt of all information required to assess your Special Membership application.
4.2 A 75% discount is applied to Membership Fees for a Volunteer Special Membership. To be eligible for a Volunteer Special Membership you must at the time of submitting your Membership Form be a volunteer with City of Swan’s community care services program and:
(a) for the 3 months prior to submitting your Membership Form — have been volunteering for at least one day a week in that 3 month period;
(b) actively continue to volunteer for at least one day a week; and
(c) produce a letter from the City of Swan’s community care services program confirming the matters in clauses (a) and (b) above.
4.3 A 75% discount is applied to Membership Fees for a Staff Special Membership. To be eligible for a Staff Special Membership you must at the time of submitting your Membership Form be a current employee of the City of Swan employed on a full-time, part-time, casual or temporary (fixed term) basis. A person engaged as a contractor of the City of Swan is not eligible for a Staff Special Membership.
4.4 Special Membership cannot be aggregated with any other Special Membership categories nor claimed in conjunction with any other discount and/or promotional offer or the FIFO Membership Type.
4.5 A Minor or person who has a legal guardian may be eligible for Special Membership. However, a Minor or a person is not eligible on the basis that their parent or guardian signing the Membership Form on their behalf is eligible for Special Membership.
4.6 A Special Membership applied to a Fixed Term Membership will apply for the whole of the term of that Membership. If at any time you cease to be eligible for that Special Membership, the discounted Fixed Term Membership will continue for the rest of the term.
4.7 If you have an Ongoing Membership and at any time you cease to be eligible for a Special Membership, then your Membership will be cancelled. You must submit a new Membership Form should you wish to continue as a Member.
4.8 Eligibility for a Special Membership applied to a Fixed Term Membership is assessed at the time you submit your new Membership Form in accordance with clause 3.7.
5. PAYMENT
5.1 You agree to pay the Fees associated with your Membership as and when they fall due in accordance with these terms and conditions.
5.2 An Ongoing Membership has an initial term of one month, and will automatically renew on a monthly basis until it is cancelled in accordance with these terms and conditions.
5.3 If you have an Ongoing Membership:
(a) You must sign an Authority Form with the Direct Debit Provider in favour of Swan Active which authorises direct debit payments for the Fees to be taken from your nominated credit card or bank account in the amounts and frequency set out in your Membership Form and these terms and conditions. The Direct Debit Provider may charge fees, as set out in the Authority Form, which are in addition to any fees payable under the Agreement.
(b) Your Membership Fee will be debited monthly from your nominated credit card or account on the Direct Debit Date. If payment falls due on a day that is not a Business Day in the location that the Direct Debit Provider is based in, then the direct debit will occur on the next day which is a Business Day in the Direct Debit Provider’s location.
(c) You must ensure that your nominated credit card or bank account is able to accept direct debits and have sufficient funds available to pay your Membership Fees and any other applicable fees on each applicable Direct Debit Date.
(d) If a direct debit payment is dishonoured, you will be notified via SMS text message and you will not be able to access the Facilities and Services until such time that all outstanding Fees have been paid. You must pay outstanding Fees within thirty (30) days of their original due date. If a second consecutive dishonoured payment occurs while your first dishonoured payment remains unpaid, your Membership will be cancelled.
(e) If you dispute a direct debit charged by Swan Active under this clause 4 by lodging a payment dispute with your financial institution, Swan Active may instead issue you with an invoice for the full amount of the disputed payment. Any invoice must be paid within seven (7) days of it being issued.
(f) You acknowledge and agree that the contract that you enter into with the Direct Debit Provider is a separate contract to the Agreement and that any problems or issues that you have in connection with the direct debit should be raised directly with the Direct Debit Provider.
(g) You acknowledge and agree that the Direct Debit Authority will remain in place until the Termination Date.
(h) You acknowledge that we will continue to debit Fees under the Direct Debit Authority until the Termination Date.
(i) You acknowledge you will not be refunded or credited for any period of time you are unable to access the Facilities and Services under clause 5.3(d) due to a dishonoured direct debit payment.
5.4 You may present a Voucher to Swan Active and request that it or part of it be applied to the Fees / Membership Fees payable under the Agreement. Swan Active will apply the Voucher if it is eligible to be applied to the particular Fees / Membership Fees you have requested it be applied to. Any Vouchers applied will act as a credit balance. Eligible Fees / Membership Fees will be charged against the credit balance until it is exhausted, after which you will begin to be or continue to be charged directly in accordance with this clause 4.
6. INCREASE TO FEES
6.1 Swan Active will review the Fees annually at the end of each financial year and may increase the Fees in connection with your Membership Type having consideration to a variety of market issues, consumer price index and the demand for use of Swan Active facilities and services.
6.2 If Swan Active decide to increase the Fees in connection with your Membership Type Swan Active must provide you with at least 30 days’ notice of the increase to the Fees.
6.3 A Fee increase notified under clause 6.2 will not apply to the rest of the term of a Fixed Term Membership.
6.4 For Ongoing Memberships only:
(a) The Fee increase will apply from the first Direct Debit Date after the end of the notice period in clause 6.2.
(b) If you do not wish to continue with your Membership due to an increase in Fees, you must cancel your Membership by giving notice in writing to Swan Active during the period in clause 6.2, including by email. It is Swan Active’s preference that where possible a Cancellation Form is used to cancel your Membership.
(c) If you cancel your Membership under clause 6.4(b) during the 30 day notice period in clause 6.2, the cancellation takes effect immediately before the increased Fees would otherwise be charged under clause 6.4(a).
7. ACCESS AND USE OF FACILITIES
7.1 Subject to payment of your Fees, and your compliance with the terms of the Agreement, your Membership gives you access to:
(a) a 5% discount on purchases at the Café and merchandise at each Location when presenting your Membership Token; and
(b) the Facilities and Services applicable to your Membership Type.
You may be in breach of these terms and conditions if you access Facilities and Services that are not applicable to Membership Type.
7.2 Where your Membership includes access to a gym, Swan Active will provide personal health and exercise consultations and personal exercise plans in accordance with your Membership Form.
7.3 Your Membership card is personal to you – you are the only person entitled to use your Membership card.
7.4 You may transfer the remaining balance of your Fixed Term Membership to any other person. Requests to transfer a Fixed Term Membership must be made in writing by providing 30 days’ notice and emailing Swan Active the details of the proposed transfer.
7.5 If the person that you wish to transfer your Fixed Term Membership to:
(a) is not an existing member — they must attend a Location in person to sign a Membership Form and undergo onboarding to complete the transfer; or
(b) is an existing member— your remaining balance will be added to their balance.
7.6 You must bring and use a sweat towel for each visit to the gym and drying towel for each visit to the pool. Swan Active reserves the right to refuse you entry to use any of the Facilities and/or Services if you do not have an appropriate towel.
7.7 You must present your Membership Token at:
(a) all relevant swipe points; and
(b) any time it is requested by a Swan Active staff member.
7.8 If you lose your Membership Token, you must obtain a replacement token and may be required to pay the Lost Token Fee.
7.9 If your Membership Type grants access to either the gym or fitness classes, you must inform Swan Active immediately upon becoming aware of any medical, physical or other disability or condition, either past or present, which may affect your ability to safely access and use the Facilities and Services, including conditions or disabilities which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of, your use of the Facilities and Services. In the event you disclose such disability or condition, your access to the Facilities and Services may be subject to the requirements in clause 3.2.
7.10 Swan Active adopts a “first come, first served” rule in respect of all Facilities and Services, including the Crèche and Fitness Classes. Swan Active reserves the right to refuse entry to any Member at any Location if that entry may exceed maximum capacity of that Location. Your Membership does not give you a greater right to access Facilities and Services than any other Member or a person who is accessing Facilities and Services on a casual basis.
7.11 You agree to comply with the relevant “Conditions of Entry” at all times at any of the Locations.
7.12 You must at all times follow the safe operating procedures and instructions on the equipment and/or as directed by a Swan Active staff member.
7.13 You agree to only use the equipment for its intended purpose/s.
7.14 If you cause any damage to the Facilities and Services, you must notify a Swan Active staff member immediately, and to the extent the damage is caused by your negligence or misuse of the Facilities and Services you agree to pay Swan Active upon demand the reasonable cost of repairing the damaged items or, if repair is not possible, replacement of the damaged items.
8. MEMBER ACKNOWLEDGEMENTS AND WARRANTIES
8.1 You acknowledge that:
(a) your access to the Facilities and Services is not exclusive and must be shared with other users;
(b) the Facilities and Services may be closed for safety or emergencies or any event beyond our reasonable control;
(c) we purchase or lease the fitness equipment from a third party and do not manufacture any of the fitness equipment or other equipment used in the Facilities and Services and accordingly do not give any warranties regarding the equipment that would usually be given by a manufacturer;
(d) there are times in which the Facilities and Services are unstaffed. If you need the assistance of a Swan Active staff member while the Facilities and Services are unstaffed, you may request a Swan Active staff member at reception to help you locate an appropriate staff member to provide assistance;
(e) there are times in which the Staffed Hours may change without notice. Swan Active will use reasonable efforts to notify you of any changes to Staffed Hours in advance of such changes, however you acknowledge that there may be times in which prior notice is unable to be provided;
(f) Facilities and Services are only accessible during Opening Hours, and Opening Hours may change without notice. Swan Active will use reasonable efforts to notify you of any changes to Opening Hours in advance of such changes, however you acknowledge that there may be times in which prior notice is unable to be provided;
(g) not all Facilities and Services may be available at all times (including classes) or at all Locations; and
(h) your Membership does not include access to personal trainers, unless clearly set out in your Membership Form.
8.2 You warrant that, to the best of your knowledge, you are able to safely use the Facilities and Services and you have considered all necessary medical advice prior to embarking on a fitness program or exercise routine.
8.3 You agree it is your responsibility not to use any Facilities and Services that may have an adverse effect on any medical or physical condition you may have and acknowledge that we do not provide medical advice in connection with your use of the Facilities and Services.
8.4 Except as disclosed at the time of applying for your Membership under clause 3.1(e)(ii) or at a later time under clause 7.9, you acknowledge and represent that to the best of your knowledge, you do not have any medical, physical or other disability or condition which may be affected or aggravated by, or which may result in any sickness, injury or death to you as a result of your use of the Facilities and Services.
8.5 You acknowledge that you may be liable to Swan Active for damages for breach of the Agreement if you do not terminate the Agreement in a manner described in the Agreement.
9. CRÈCHE (IF APPLICABLE)
9.1 Subject to your Membership Type, access to and use of the Crèche is subject to this clause.
9.2 A crèche inclusive membership allows for up to 2 children aged between 8 weeks and 5 years old to be place in the Crèche for up to 2 hours a day, and for a maximum of 12 hours per week. Children that are 6 years of age or older are not eligible to enter the Crèche.
9.3 You acknowledge that Swan Active does not guarantee availability at the Crèche, it is operated on a first in first served basis.
9.4 You acknowledge and agree that if a place is not available within the Crèche or you do not use the Crèche, Swan Active will not refund or credit your Membership for non-use of the Crèche.
9.5 You acknowledge and agree that use of the Crèche is subject to the Crèche terms and conditions that are published here https://www.swanactive.com.au/terms-and-conditions/creche-terms-conditions/.
10. CHANGES TO MEMBERSHIP
10.1 You must inform Swan Active of any changes to the information and contact details you provided on your Membership Form as soon as possible.
10.2 Swan Active may change, modify or amend these terms on the provision of 30 days’ written notice, by email, of any such changes, including the date that the change, modification or amendment will come into effect. As a result of these changes, you may:
(a) Upgrade, downgrade or change your Membership Type (but you cannot downgrade a Fixed Term Membership), which you must do so by completing and submitting a “Membership Alteration Form” and, if you are downgrading, a “Direct Debt Form”; or
(b) cancel your Membership in accordance with clause 13.
10.3 A Fixed Term Membership cannot be downgraded.
10.4 If you are upgrading a Fixed Term Membership:
(a) you must submit a Membership Alteration Form;
(b) you will be charged the difference between the Membership Fees for your current Membership Type, and the Membership Fees for your upgraded Membership Type, but pro-rated so that you only pay the difference for the remaining term of your Fixed Term Membership;
(c) you may immediately begin using all the Facilities and Services in connection with your upgraded Membership Type upon receiving confirmation of your upgrade; and
(d) these terms (as amended from time to time) continue to apply to your upgraded Membership.
10.5 If you have an Ongoing Membership, you may change your Membership Type, by upgrading your Membership Type or downgrading at any time during the term of your Membership by completing and submitting a Membership Alteration Form.
10.6 If you are upgrading your Ongoing Membership:
(a) you do not need to submit a Direct Debit Authority in addition to the Membership Alteration Form;
(b) your change in Membership Type will apply once you receive confirmation of the upgrade from Swan Active;
(c) your Direct Debit Date will remain the same, and you will be charged at the new applicable Membership Fee amount starting from the first Direct Debit Date following confirmation of your upgrade;
(d) you may immediately begin using all the Facilities and Services in connection with your upgraded Membership Type upon receiving confirmation of your upgrade; and
(e) these terms (as amended from time to time) continue to apply to your upgraded Membership.
10.7 If you are downgrading your Ongoing Membership:
(a) you must give Swan Active 30 days’ written notice of your downgrade request by submitting the Membership Alteration Form and a new Direct Debit Authority;
(b) your downgrade will commence on the first Direct Debit Date following the end of your 30 day notice period;
(c) until your downgraded Membership Type under clause 10.7(b) commences, you may continue using all the Facilities and Services in connection with the non-downgraded Membership Type; and
(d) these terms (as amended from time to time) continue to apply to your downgraded Membership.
10.8 This clause 10 does not apply to increases in Fees. Clause 6 applies to increases to Fees.
11. SUSPENDING YOUR MEMBERSHIP
11.1 You may suspend your Membership by either sending a request to Swan Active in writing (including by email) or through the online member portal, that sets out your proposed period of suspension which must (Suspension Period):
(a) commence at least 7 days after the day you provide the request to Swan Active; and
(b) be for a period of at least 30 consecutive days.
It is Swan Active’s preference that where possible a “Membership Suspension Form” is used to request a suspension to your Membership.
11.2 For Fixed Term Memberships:
(a) you may suspend your Membership for a cumulative period of no more than 6 months in any 12 month period; and
(b) the suspension of your Membership will automatically end on the last day of the Suspension Period, and from the following day you may recommence use of the Facilities and Services..
11.3 For Ongoing Memberships:
(a) you may suspend your Membership for a cumulative period of no more than 6 months in any calendar year;
(b) the suspension of your Membership will automatically end on the last day of the Suspension Period, and from the following day you may recommence use of the Facilities and Services ; and
(c) in the month that the Suspension Period ends, you will be charged on your Direct Debit Date (even if it falls within the Suspension Period) for the usual Membership Fees payable for that month, but pro-rated so that you are only charged for the days in the month that your Membership is active.
11.4 You will not be charged any Membership Fees for the Suspension Period and the Facilities and Services will not be available for your use during the Suspension Period.
11.5 You may request that your Membership be reactivated prior to the end the Suspension Period. Any reactivation date must be at least 30 days after the Suspension Period started. Before your Membership can be reactivated, you must pay Membership Fees due for the current billing period, but pro-rated so that you are only charged for the period from when your Membership is reactivated up until your next Direct Debit Date.
11.6 The Suspension Period will immediately end if, during the Suspension Period, you notify Swan Active that you wish to cancel your Membership under clause 13.3. You must give Swan Active 30 days’ written notice in accordance with clause 13.3 should you wish to cancel your Membership.
12. IMMEDIATE TERMINATION OF THIS AGREEMENT AFTER THE COOLING OFF PERIOD
12.1 Swan Active may cancel your Membership immediately by providing written notice where Swan Active believes on reasonable grounds that you are not safely able to use the Facilities or Services, or that your use of the Facilities or Services may result in any sickness, injury or death to you.
12.2 You may cancel your Membership immediately by providing written notice where Swan Active has required you to provide, sign or do (as applicable) any of the things set out in clause 3.2.
12.3 If incapacity or a permanent sickness prevents you from using your Membership, you or somebody on your behalf must provide Swan Active written notice and a medical certificate to confirm the incapacity or permanent illness.
12.4 Upon receiving the notice provided under clause 12.3, Swan Active will cancel your Membership, direct debits, and will refund any payments (if applicable) made in advance from the date the notice was received on a pro-rated basis on any outstanding pre-paid period. This refund will be paid within 7 Business Days of you or someone on your behalf providing details to Swan Active of the bank account that you wish the refund to be paid to.
13. CANCELLATION OF YOUR MEMBERSHIP
13.1 The Agreement is terminated when your Membership is cancelled.
13.2 Swan Active may cancel your Membership by providing you with 30 days’ written notice where you have failed to comply with the Agreement.
13.3 You may cancel your Membership by providing Swan Active with 30 days’ written notice of your intention to cancel your Membership. It is preferred that you complete a Cancellation Form and submit that to Swan Active to cancel your Membership. You may also apply to cancel your Membership through the online membership portal. Swan Active will confirm receipt of a request to cancel your Membership within 7 days of receiving it and will confirm the amount of the last payment due and the date the termination takes effect.
13.4 In accordance with clause 11.6, issuing a notice to cancel your Membership under clause 13.3 will cause that Suspension Period to immediately end.
13.5 Fees are payable in respect of your Membership until the date that the cancellation takes effect. Fees will be refunded, or charged, on a pro-rated basis such that you only pay for those days that you are a Member.
13.6 Swan Active may charge an Administration Fee that reasonably reflects the administration costs incurred by Swan Active in administering the cancellation of your Fixed Term Membership.
13.7 You are responsible for the payment of any Fees that are due and payable at the date of the cancellation of your Membership. Payment of those Fees are not affected by the cancellation of your Membership.
14. LIABILITY
14.1 To the maximum extent permitted by law and to the extent not caused or contributed to by Swan Active, Swan Active will not be liable for any loss, theft or damage occurring to your personal items. Any personal items left or stored at a Location are left or stored at your own risk.
14.2 Vehicles parked in or around the vicinity of a Location are parked at your own risk and you agree to the maximum extent permitted by law and to the extent not caused or contributed to by Swan Active, Swan Active is not liable for the theft or any damage occurring to vehicles or their contents.
14.3 You acknowledge and accept that while at a Location and while using the Facilities and Services, you are at risk of sustaining injury, permanent disability or death. Such risks may arise from:
(a) experiencing a medical event while using the Facilities and Services;
(b) slipping on wet flooring;
(c) being struck by weights;
(d) colliding with equipment, or other Members;
(e) falling off equipment;
(f) engaging in strenuous exercise and activities; or
(g) incorrect use of the Facilities and Services.
14.4 You acknowledge that any such injury may result not only from your actions but from the action, omission or negligence of others.
14.5 You acknowledge and agree that the risks contained in clause 14.3 are not exhaustive, and there are other unknown or anticipated risks from your use of the Facilities and Services that may result in injury, permanent disability or death.
14.6 You acknowledge that while every attempt is made to ensure that our Facilities and Services are safe, there are some significant and inherent risks involved in your use of the Facilities and Services. You assume all such risks, and agree that you are attending and using the Facilities and Services voluntarily and entirely at your own risk.
14.7 To the fullest extent permitted by law, you acknowledge that Swan Active is not liable to you for any injury, loss or damage sustained while you are under the supervision of a third party service provider at the Facility (including any private sector provider you engage directly).
14.8 This clause 14 survives termination of the Agreement.
15. PRIVACY
15.1 Swan Active will hold, use and disclose your personal information in accordance with all applicable laws.
15.2 Surveillance
(a) For safety and security reasons we implement video surveillance to monitor the Locations. Surveillance is limited to the entry and floor areas only within each Location.
(b) By becoming a Member, you acknowledge that when accessing a Location you will be subject to video surveillance and consent to such surveillance being taken and held by or on behalf of Swan Active.
16. COMPLAINTS
16.1 If you have any complaints regarding our service or any other issue regarding the Facilities and Services you must submit your complaint to Swan Active by sending your complaint in writing by completing a Customer Feedback Form available at reception or online, or by emailing the complaint to the relevant email address for the Location the complaint is in respect of. We will:
(a) make a record of your complaint and inform you that we have received and recorded your complaint as soon as possible after receiving a complaint; and
(b) undertake every reasonable effort to resolve your complaint quickly and fairly.
17. GOVERNING LAW
17.1 The Agreement is governed by and construed in accordance with the laws of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of its courts.
18. NOTICES
18.1 Unless stated otherwise in the Agreement, any written notice required to be provided under the Agreement must be given to Swan Active in person, by email or post. A notice, approval, consent or other communication takes effect from the time it is received by Swan Advice unless a later time is specified in it.
18.2 A notice is taken to be received:
(a) in the case of hand delivery, on delivery;
(b) in the case of a posted letter, on the third clear Business Day after posting if within Australia, or the eight clear Business Day after posting if posted to or from a place outside Australia or from one state or territory in Australia to another; and
(c) in the case of email, when the email together with any relevant attachment is received into the recipient’s information system in readable form,
provided further that if the delivery, receipt or transmission would otherwise be taken to be received on a day which is not a Business Day or would be taken to be received after 4:00 pm on the Business Day, then the notice will be taken to be received at 9:00 am on the next Business Day.
19. WAIVER
19.1 If a party does not enforce a right under the Agreement at any time, it does not mean that the party may not do so in the future.
20. SEVERABILITY
20.1 Any term or any part of the Agreement that is or becomes illegal, void or unenforceable may be severed from the Agreement and the remaining terms or parts of the terms of the Agreement continue in force.
21. ENTIRE AGREEMENT
21.1 The terms of the Agreement constitute the entire agreement between the parties.
22. DEFINITIONS & INTERPRETATION
22.1 Definitions
In the Agreement, unless the context provides otherwise:
Agreement means the contract between you and the Swan Active, the terms and conditions of which are set in:
(a) these terms and conditions;
(b) your completed Membership Form (including any Seniors Membership Form, Membership Alteration Form (as applicable);
(c) Swan Active Pre-Exercise Screening (if applicable); and
(d) Conditions of Entry.
Administration Fee means a fee that reasonably reflects the administration costs incurred by Swan Active in administering the Agreement, and more specifically published here: https://www.swanactive.com.au/prices
Authority Form has the meaning given to that term in clause 3.6. At the time of entering into the Agreement the Authority Form is the EziDebit Direct Debit Request – New Client Form.
Business Day means a day that is not a Saturday, Sunday, national public holiday or a public holiday in Western Australia.
Cancellation Form means the Swan Active ‘Membership Cancellation Form’ (as amended from time to time) available on the website https://www.swanactive.com.au/membership-cancellation/ and at each Location.
Casual Entry Fee means the fees payable for accessing the Facilities and Services during the Cooling-Off period, and more specifically published here: https://www.swanactive.com.au/prices
Commencement Date means the “Membership start date” as stated on your Membership Form.
Conditions of Entry means the “Swan Active Conditions of Entry Conditions of Entry” that are available on Swan Active’s website at https://www.swanactive.com.au/terms-and-conditions/conditions-of-entry/ and at reception at each Location.
Cooling-Off Period has the meaning given to that term in clause 2.1.
Customer Feedback Form means the form available at reception at all Locations or online at https://www.swanactive.com.au/feedback-form/.
Direct Debit Authority means the authority you have provided to the Direct Debit Provider to establish a direct debit facility for the payment of your Membership fees.
Direct Debit Date means the date on which your monthly Membership Fees are deducted from your nominated credit card or bank account, being the same day of the month on which you became a member.
Direct Debit Provider means the third party nominated by Swan Active to manage and process direct debit payments. At the date of entering into the Agreement the Direct Debit Provider is EziDebit. For clarity, at the time of entering into the Agreement, EziDebit is located in Queensland.
Facilities and Services includes any of Swan Active’s premises, gym, swimming pool, spa, sauna and Crèche and all exercise areas, bathrooms, equipment, weights, benches, machines, mats and any programs, products, classes and services, including but not limited to personal training, that you may use, subject to your Membership Type applied for and granted to you.
Fees means any and all fees that may become payable under the Agreement, including but not limited to Administration Fees, Lost Token Fees, Casual Entry Fees and Membership Fees .
Fixed Term Membership has the meaning given to that term in clause 3.1(d)(i).
Location means one of the following premises operated by Swan Active:
(a) 3 Community Mews, Ballajura WA 6066 (Ballajura);
(b) 332 Benara Road, Beechboro WA 6063 (Beechboro); and
(c) 27 Gray Drive, Midvale 6056 (Midland).
Lost Token Fee means the fee, published at https://www.swanactive.com.au/prices/, to cover the reasonable cost of replacing your lost Membership Token.
Member means a person who has permission to use and access the Facilities and Services subject to the Agreement.
Membership means a Membership held by a Member to use and access the Facilities on the terms and conditions in the Agreement.
Membership Alteration Form means the Swan Active ‘Membership Alteration Form’ (as amended from time to time) available at each Location.
Membership Fees means the fees due and payable by you, as published on the Swan Active website https://www.swanactive.com.au/prices/, to allow you access to use the Facilities and Services in the Agreement for your Membership Type.
Membership Form means the ‘Swan Active Membership Application Form’ completed by you and submitted to Swan Active and accepted and approved by Swan Active.
Membership Suspension Form means the Swan Active ‘Membership Suspension Form’ (as amended from time to time) available on the website https://www.swanactive.com.au/membership-suspension/ and at each Location.
Membership Token means a Membership token issued by Swan Active that allows you access to the Locations to use the Facilities and Services.
Membership Type means the Membership type checked in your Membership Form under “Choose Your Membership Type”.
Minor means a Member under the age of 18 and includes the parent or guardian of that Member.
Ongoing Membership has the meaning given in clause 3.1(d)(ii).
Opening Hours means the hours that each of the Facilities and Services are open for access by Members, which may vary between Locations, days of the week, and public holidays. The hours are advertised within each Location and on the Swan Active website.
Special Membership means a discount applied to the Membership Fee for your Membership Type.
Staff Special Membership means a Special Membership that is granted to a staff member of the City of Swan who satisfies the eligibility requirement in clause 4.3.
Staffed Hours means the hours that each Location is staffed, which may vary from time to time and between each Location. The hours are advertised within each Location and on the Swan Active website.
Suspension Period has the meaning given in clause 11.1.
Termination Date means:
(a) for a Fixed Term Membership, the earlier of the date that: 1) is 12 months from your Commencement Date; and 2) your Membership is deemed to be cancelled, or the Agreement is otherwise terminated in accordance its terms; and
(b) for an Ongoing Membership, the date your Membership is deemed to cancelled, or the Agreement is otherwise terminated in accordance with its terms.
Volunteer Special Membership means a Special Membership that is granted to a volunteer who satisfies the eligibility requirement in clause 4.2.
Voucher means a valid, non-expired voucher issued by the City of Swan or, if not issued by the City of Swan, accepted by Swan Active in its sole discretion.
You, you means the person stated in the ‘Membership Application Form’ under ‘Members Details’, and if the member is a Minor or a person who has a legal guardian, then ‘you’ means that Minor or person and the legal guardian of that Minor or person (as applicable).
22.2 Interpretation
In the Agreement, unless expressed to the contrary:
(a) headings and bolding are for convenience only and do not affect the interpretation of the Agreement;
(b) the singular includes the plural and vice versa;
(c) if a word or phrase is defined, cognate words and phrases have corresponding definitions;
(d) a reference to:
(i) a clause or sub-clause refers to a clause or sub-clause of the Agreement;
(ii) a person includes a firm, unincorporated association, corporation, partnership or a government or statutory body or authority;
(iii) any document includes a reference to that document as amended, rectified or replaced form time to time and to any document so amending, rectifying or replacing the document; and
(iv) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
(e) the meaning of a general word or phrase is not limited by specific examples introduced by “including”, “for example” or similar expressions.