General Terms & Conditions
1. Introduction
By using the System located on Wynactive.com.au website, the “Site” and any related website including:
- wynactive.com.au
- aquapulse.wynactive.com.au
- eaglestadium.wynactive.com.au
- werribeeoutdoorpool.wynactive.com.au
you agree to be bound by the following terms.
2. Scope
Before using any of the services provided by us, you must read and accept all of the terms in, and linked to this contract (“Contract”) and the Privacy Policy. By agreeing to this Contract, you agree that these terms and Privacy Policy will apply whenever you use the facilities and the Site.
3. Your booking
3.1 As part of your booking you may use the facility in accordance with the relevant service you have made a booking for.
3.2 Your use of the facility under this Contract:
3.2.1 is subject to the terms of this Contract;
3.2.2 the facility rules;
3.2.3 is subject to the availability and limitations of your chosen service;
3.2.4 does not entitle you to access any other service or use any part of the facility other than those identified within your booking.
3.3 If you wish to use or access any part of the Facility or receive any services from us outside the scope of your booking, you will need to make a separate booking with us.
3.3 To make a booking into one of our services you must be at least 18 years old and have the capacity to enter into a legally binding agreement with us. If you are under 18, you may only book into a service with the involvement of a parent or guardian.
4. ORDER AND FORMATION OF CONTRACT
4.1 When making a booking, you must follow the instructions on the Site as to how to book into one of the services offered.
4.2 Once you have selected the required service, irrespective of any previous price you have seen or heard, you will then be shown or told at the time of booking confirmation the price you must pay including Goods and Services Tax (“GST”) and any other charges. Unless otherwise stated all charges are in Australian dollars.
4.3 By clicking accept on the System you are agreeing to enter a binding Contract with us and be subject to the terms of the Contract.
4.4 You must pay for the service in full at the time of booking by one of the payment methods we accept on the Site. You must be fully entitled to use the payment method used for purchases. The payment method must have sufficient funds, credit or other payment facilities to cover the purchase. We are not responsible for the decisions of payment providers to allow you to use their service, or provide any warranties or assurances about them. If a particular service is not available to you, you should use another valid payment method. You may elect to store your payment methods to your Account for future purchases.
4.5 If you have chosen to pay by a Payment Method that causes us to incur any merchant or transaction fees, we may pass these fees on to you by deducting the fees via your Payment Method.
4.6 By making a booking, you expressly authorise us, before accepting your booking, to perform credit and security checks and, where we feel necessary, to transmit or to obtain information (including any updated information) about you to or from third parties from time to time, including but not limited to your credit card number, to validate your credit card, to obtain an initial credit card authorisation, to conduct loss minimisation and anti-fraud measures and to authorise individual purchase transactions.
4.7 If you discover that you have made a mistake with your booking after you have submitted it to the Site, please contact Customer Service immediately, although please note we cannot guarantee that we will be able to amend your booking in accordance with your instructions and that fees may be applicable to process a change.
4.8 When you place a booking, you will receive from us a booking confirmation by email. This email will only be a confirmation of the contract between us and you for the provision of the Service Contract.
5. CANCELLATION & Refunds
5.1 We are under no obligation to refund money you have paid to us, except as expressly set out in this Contract.
5.2 If you cancel your booking for any reason, any refund or credit provided is at the sole discretion of us.
5.3 If we cannot provide the service as outlined in your booking, except in relation to term 7.5, we will provide you with a credit.
6. Your obligations
6.1 Facility Rules
You must:
6.1.1 comply with the Facility Rules at all times;
6.1.2 comply with instructions given by our staff in relation to the Facility;
6.1.3 not interfere with use of the Facility by any other person (including any Facility members and hirers of equipment or areas in the Facility); and
6.1.4 not behave in a way which is inappropriate, risky or detrimental to the safe enjoyment of the Facility by others.
7. Your use of the Facility
7.1 Access
7.1.1 All or part of the Facility if applicable and any equipment of the Facility may be unavailable on a temporary basis, including for maintenance, repairs, private functions, community group programming, exclusive use and Facility programming or in the circumstances described in clause 7.5.
7.1.2 We may deny you access to the Facility or direct you to leave the Facility if we decide that your behaviour:
(a) is inconsistent with the Facility Rules; or
(b) is inappropriate, risky or detrimental to the safe enjoyment of the Facility by yourself or others.
7.1.3 Exercise of our rights under clause 7.1.2 will not entitle you to a refund of any Fees or grant you any right to terminate this Contract.
7.2 Fitness programs and recommended activities
Our employees or contractors may, on your request, develop a fitness program and/or recommend fitness activities for you at the Facility or external premises. You acknowledge and agree that:
7.2.1 our employees and contractors, unless we give you written notice otherwise, hold no medical qualifications; and
7.2.2 subject to clause 8.1, you follow the program and/or recommendations at your own risk and we are not liable to you for any claim (including any action, proceeding, debt, demand, cost or expense) resulting from you following the program and/or recommendations.
7.2.3 ‘Staff Hours’ are subject to availability. These hours are located at the entrance to the gym or www.wynactive.com.au for each facility. WLS reserves the right to change the staffed hours at any time without notice.
7.3 Medical
You authorise us to obtain medical/ambulance assistance for you in the case of an accident or emergency involving you, and agree to reimburse us on demand for all costs we incur in obtaining such assistance.
7.4 Programs and activities run by third parties
From time to time third parties may, at your request, provide goods and services to you at the Facility, such as personal training. You acknowledge and agree that:
7.4.1 all third party providers must have entered a hire agreement with WLS before services are provided
7.4.2 we are not responsible for any such goods or services;
7.4.3 you must pay these providers directly for any such goods or services; and
7.4.4 we are not liable to you for any claim (including any action, proceeding, debt, demand, cost or expense) resulting from the provision of such goods and services to you.
7.5 Emergencies and natural disasters
7.5.1 We may be required to use all or part of the Facility during emergencies and natural disasters, including to provide and coordinate support for those affected by bushfires or heatwaves. You may not be able to access or use all or part of the Facility during these periods.
7.5.2 We will use reasonable endeavours to provide you with written notice of any Emergency Period in accordance with clause
7.5.3 We may cancel any service during an Emergency Period.
8. Our liability
8.1 Warning under the Australian Consumer Law and Fair Trading Act 2012
Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services.
These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you-
• are rendered with due care and skill; and
• are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and
• might reasonably be expected to achieve any result you have made known to the supplier.
Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the supplier is entitled to ask you to agree that these statutory guarantees do not apply to you. If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.
NOTE: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier’s part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian
Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
8.2 Our liability
8.2.1 Subject to the warning in clause 8.1 and your rights under the Australian Consumer Law (Victoria), you enter into the Membership Agreement and will make use of the Facility at your sole and absolute risk. If you are killed or injured because: (a) any service we provide is not rendered with due care and skill; and/or
(b) the Facility or any part of it is not reasonably fit for the purpose for which you, either expressly or by implication, make known to us, for any reason other than our gross negligence, or otherwise suffer any other loss or damage (including indirect or consequential loss), you agree that any right you may otherwise have to sue us is excluded and you must not bring any related claim or demand against us.
8.2.2 We accept no liability or responsibility to you for any claim (including any action, proceeding, debt, demand, cost or expense) by you in relation to:
(a) your access and use of the Facility;
(b) your use of any equipment at the Facility; and
(c) the loss of any of your property at the Facility (irrespective of whether the property is stored in a locker or not).
8.2.3 In addition, we give you no warranty or assurance that use of the Facility might cause you to achieve any result that you may intend, whether that result is made known to us or not.
9. Disputes and complaints
9.1 If a dispute arises concerning this Contract or you have any complaints about the Facility or external premise or us, please give us written notice of the dispute or complaint.
9.2 We will meet with you as soon as possible to discuss and endeavour to resolve the dispute or your complaint.
10. GENERAL
10.1 Governing law
This Membership Agreement is governed by the law applying in Victoria. You and Western Leisure Services submit to the non-exclusive jurisdiction of the courts of Victoria.
10.2 Variation
This Contract can only be varied by a document executed by you and us.
10.3 Severability
10.3.1 Any provision of this Contract that is held to be illegal, invalid, void, voidable or unenforceable must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
10.3.1 If it is not possible to read down a provision as required by this clause, part or all of the clause of this Contract that is unlawful or unenforceable will be severed from this Contract and the remaining provisions continue in force.
10.4 Assignment and subcontracting .
10.4.1 You cannot assign this Contract without our prior written consent.
10.4.2 We may assign or subcontract any part of this Contract to a third party without written notice to you.
11. DEFINITIONS AND INTERPRETATION
11.1 Definitions
In this document, terms are defined either (i) in the body of this document above, or (ii) defined as set out below, unless the contrary intention appears:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) or equivalent State or Territory laws;
Breach of Duty means the breach of any:
(a) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or
(b) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
Booking means the acquisition of your chosen service to be provided by us which has been lodged within our System.
Emergency Period means a period during which you are unable to access or use all or part of the Facility under clause 7.5.
Facility means:
- AquaPulse;
- Eagle Stadium;
- Werribee Outdoor Pool;
- External venues for the purpose of providing outdoor fitness sessions.
Facility Rules means the rules for the Facility from time to time, as available within the Facility.
Liability means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms, including, without limitation, liability expressly provided for under these Terms or arising by reason of the invalidity or unenforceability of any term of these Terms (and for the purposes of this definition, all references to these Terms shall be deemed to include any collateral contract); and
System means the online ecommerce/booking platform which we use to book you into services offered by us.
Us or We means Western Leisure Services Pty Ltd ACN 169 311 693 of 80-82 Derrimut Road, Hoppers Crossing, Victoria, Australia 3029.
You means you, the individual making a booking.
13.2 Interpretation
(a) Headings are for ease of reference only and shall not affect the interpretation or construction of these Terms.
(b) Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.
(c) Words denoting persons includes natural persons, partnerships, limited liability partnerships, bodies corporate and unincorporated associations of persons.
(d) References to includes or including or like words or expressions shall mean without limitation.
These Terms were last updated on 15 June 2020.