Disclaimer & Waiver

1 APPLICATION

1.1 This Disclaimer and Waiver applies to the provision of Services by BJ CUSH PTY LIMITED (ACN 130 055 855) as trustee for BJ Cush Family Trust trading as Bondi Icebergs Gym (we, us, our) to you. By paying for, accessing or participating in the Services, as defined below, and signing this Disclaimer and Waiver you agree to be bound by the terms of this Disclaimer and Waiver.

1.2 For the purposes of this Disclaimer and Waiver:

(a) Activities means the following:

i. cardio, strength and conditioning exercises performed at a high intensity level, including but not limited to exercises requiring exercise equipment or machinery, as well as body weight and body weight accessory exercises;

ii. throwing or carrying heavy objects;

iii. swimming; running;

iv. use of dumbbells, barbells and weighted plates;

v. gymnastics; and

vi. other activities incidental to fitness and improving one’s physical health.

(b) Claim means any claim, cross-claim, causes of action, notice, demand, direction, accounts, costs (including legal costs and expenses), charges, expenses, arbitrations, liabilities, damages, loss, actions, suits, proceedings, litigation, claims and demands either at law or in equity and/or arising under a statute; and

i. the use of our gym, access to Bondi Iceberg’s pool and sauna, exercise facilities, exercise machines and equipment;

ii. recommending personal trainers;

iii. personal training and supervised exercise sessions by independent contractors;

iv. the provisions of various fitness events; and

v. any other services we may decide to provide in the further.

2 MEDICAL DECLARATION

2.1 You declare that after careful consideration you are not subject to any existing injury, medical condition or treatment that may render you unsuitable for participation in the Services.

2.2 You declare that you have had a consult with your health professional to ensure that you have no injury or medical condition that renders you unsuitable for participation in the Services.

3 GENERAL DISCLAIMER

3.1 All our services are intended for general fitness purposes only.

3.2 We provide our services on an "as-is" and "as available" basis and whilst every effort is taken to ensure the information provided throughout the provision of the services is accurate, we make no representations and give no guarantees or warranties about the currency, suitability, reliability, timeliness and/or accuracy of our services.

3.3 You acknowledge and agree that we, our employees, affiliates, independent contractors, and representatives are not responsible for decisions that you may make, or for any consequences, undesired or otherwise, that may flow from your engagement of our services.

3.4 Any testimonials and examples of our Services, wherever published (online or in print) are not to be taken as a guarantee that you will achieve the same or similar results.

3.5 We make no warranty, representation, or guarantee regarding the suitability of our Services for any particular purpose, nor do we assume any liability whatsoever arising out of the application or use of any Services. It is your responsibility to independently determine suitability of any Services and to test and verify the same.

3.6 You acknowledge and agree that any results to be attained by you are dependent upon you solely. Your success depends on many factors, including your own commitment, dedication, desire, and motivation, your dissemination and application of our education and training to your own circumstances or your capabilities.

3.7 The implementation of any physical exercises, following we provide may have unexpected or unintended consequences, which may vary from person to person, and you acknowledge that you perform any recommended exercises and follow any dietary recommendations at your own risk.

3.8 Prior to starting any of our recommended physical exercises or implementing our dietary recommendations, you should always consult with your medical practitioner.

3.9 In the event that you provide personal health information to us during a consultation or the provision of Services, the provision of Services:

(a) will not constitute a doctor-patient relationship between you and us;

(b) shall not involve or constitute the practice of medicine; and

3.10 Any information or exercises provided by us are for educational purposes only and does not constitute professional or medical advice. You should always consult with your medical practitioner before beginning any recommendations we provide.

3.11 You acknowledge that you accept full responsibility for informing yourself and assessing all the risks of any exercises we recommend and will rely solely on your own assessment of these risks before participating in those exercises.

3.12 You understand there are risks associated with possible physical exertion which may be experienced when participating in our physical training services, which include, but are not limited to, aggravating pre-existing injuries.

3.13 You agree to inform us of any pre-existing injuries that may effect the use of our services in the event you do not disclose pre-existing injuries to us, you agree to hold us harmless for any further injury caused as result of using our services, which could have been prevented by that disclosure.

3.14 You have an obligation to inform us when you suspect that or find an equipment that is been broken, damaged or in an unusable condition.

3.15 You must always inspect all equipment before using it. Under no circumstances should you use an equipment when you suspect or find an equipment that has been broken, damaged or in an unusable condition.

3.16 You acknowledge and agree that should you receive personal training you do so at your own risk, and should you sustain any injury as a result then you agree to hold us harmless and indemnify us from any Claims.

3.17 You agree to return all equipment used by you to the original location after you use it.

3.18 We are not medical practitioners and do not have expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise video, exercise program or nutritional program on a medical condition.

3.19 You acknowledge that there is a possibility of physical injury while using our Services. We are not liable for any claim you bring against us or any injury or loss you may suffer as a result of using our Services.

3.20 If you use any of our Services, you agree that you do so at your own risk and voluntarily. You assume and accept all risk of injury to yourself and agree to release and hold us harmless from any and all claims made against us, which arise directly or indirectly as a result of or in connection with your use of our Services and any exercises or activities which relate to the provision of those Services.

3.21 In relation to our Services, we do not guarantee that you will lose weight, or experience an improvement in any aspect of your physical health, as any results you achieve are dependent on you solely and your own motivation and commitment.

3.22 If you are unsure about how to use any of the exercise equipment, or any of our services you agree to inform us immediately so we may provide you with proper instruction and assistance, if requested.

3.23 Upon entry into and use of any Bondi Icebergs Club property including the pool, sauna or any area outside the gym itself, you acknowledge and agree to all the terms and conditions, and other policies of the Bondi Iceberg Club. Further, you also acknowledge and agree that we are unable supervise or provide any assistance to you for any outside of the gym.

3.24 None of the Services provided by us are a promise or guarantee of results or an improvement in your physical health.

3.25 You acknowledge and agree that we, our employees, affiliates, independent contracts, and representatives are not responsible for your safety in any manner.

3.26 You acknowledge and agree that we, our employees, affiliates, independent contractors, and representatives are not responsible for decisions that you may make, or for any consequences, undesired or otherwise, that may flow from your engagement of the Services.

3.27 You acknowledge and agree that we, our employees, affiliates, independent contracts, and representatives are not responsible for ensuring that you are using the Services correctly, with caution and safely. It is your responsibility to inform us and seek assistance when you are unsure about using our Services.

3.28 You acknowledge and agree to ensure that you are appropriately dressed and equipped to safely use the Services. This includes wearing appropriate enclosed footwear clothes and the use of a towel is mandatory at all times while in the gym. You will also agree to maintain good hygiene standards, wipe down all equipment after use and should the use of masks become mandatory you agree to comply with all public safety orders at the relevant time.

3.29 You acknowledge and agree that you will use the Services provided and equipment available only for purpose and manner in which such Services and equipment are provided.

3.30 You acknowledge and agree to our use of CCTV surveillance in the gym for the safety, security and health of our employees, affiliates, independent contractors, and representatives and other members.

3.31 You acknowledge and agree that the lockers provided by us are for storage purposes only. We take no responsibility for the safety and security for the items stored in these lockers or otherwise kept anywhere in the gym.

3.32 You acknowledge that you received a toggle for entry into the gym. You acknowledge that the toggle is our property and you are not to loan it to anyone else. If you lose or misplace the toggle, you agree to pay a $5 for the replacement of that toggle.

3.33 You agree to provide us with a photograph of you or to be photographed upon accepting these Terms. This photograph will serve as a verification of your identity each time you enter the gym.

3.34 You acknowledge and agree to ensure that you vacate the premises when asked by us, our employees, affiliates, independent contracts, and representatives. 3.35 We make no warranty, representation, or guarantee regarding the suitability of our Services for any particular purpose, nor do we assume any liability whatsoever arising out of the application or use of any Service. It is your responsibility to independently determine suitability of any Service and to test and verify the same.

3.36 Any information, any documents, any guidelines or recommendations made by us in relation to our Services are made on the basis of information that was available to us at the time.

4 SERVICE SPECIFIC DISCLAIMER

4.1 You understand that our Services involve the Activities as defined in clause 1.2(a) and such Activities contain varying degrees of risk.

4.2 You understand and acknowledge that the risks of the Activities prescribed by our Services include, but are not limited to:

(a) falls and tripping;

(b) equipment related hazards (e.g. broken, defective or inadequate equipment, unexpected equipment failure, or your misuse of equipment);

(d) sudden change environmental conditions causing disruptions and increasing risk of injury;

(e) inadequate first aid and/or emergency measures; (f) judgement-and/or behaviour-related problems (e.g. erratic or inappropriate co-participant, errors in judgement by personnel working an event); and

(g) regarding Services provided by us, there are risks relating to the natural environment including, wet or damp surfaces and the effects of weather including rains, waves, wind and lightning, and extreme temperature or conditions.

4.3 You hereby acknowledge that all risks are known and accepted by you.

4.4 You further understand and acknowledge that any of the risks at clause 4.2 and others not specifically named, may cause injuries that may be categorized as minor, serious, or catastrophic. Minor injuries include, but are not limited to, scrapes, bruises, sprains and cuts. Serious injuries include, but are not limited to, property loss or damage, broken bones, fractures, torn or strained ligaments and tendons, concussions, exposure, dehydration, heat exhaustion, and other heat-related illnesses, mental stress or exhaustion, emotional distress and dislocations. Catastrophic injuries are rare, but are a possibility. These injuries can include, but are not limited to, permanent disabilities, spinal injuries and death. In choosing to participate in the Activities you fully understand, accept and assume all risks whether before, during or upon completion of the Activities.

4.5 You warrant that you are of sound mind when you accept this Disclaimer and Waiver, and have the capacity to accept full responsibility for assessing whether you are willing to participate in any activity which carries an element of risk. In summary, you acknowledge our Services include activities that carry risk of physical injury and that you shall be solely responsible for consenting to participate in such activities.

4.6 You acknowledge that when participating in any Activity provided by us, there is a possibility of physical injury, disability or death. You acknowledge that we are not liable for any Claim you bring against us or any injury or loss you may suffer as a result of participating in any Activity.

4.7 We make no representation that we are health practitioners or registered medical professionals.

4.8 We do not purport to diagnose or treat health conditions, but will use our Services to propose possibilities for improving your health and wellbeing.

4.9 All our Services are intended for providing physical challenges and for general education and information purposes only and do not, nor are not intended to, constitute professional advice.

4.10 If you have a health condition, you should always consult with your health professional before engaging our Services.

4.11 You acknowledge that any employee, contractor, or representative of ours is not acting as a medical professional and you will not use our Services as a substitute for such clinical health care.

4.12 We provide physical challenges, support, guidance and tools for you to improve your physical health, set goals, determine priorities and achieve results, but any decision you make, and the consequences that flow from such decisions, is your sole responsibility. Your success depends on many factors, including your dedication, participation, desire, and motivation.

4.13 You acknowledge and agree that you are solely liable for any damage, loss or injury caused by you that is suffered by us or a third party, or for any damage to our gym or personal property or the personal property of a third party, and that you will indemnify us of any Claims made by us or a third party in connection with your use of the Services.

4.14 You accept full responsibility for informing yourself and assessing all the dangers, hazards and risks of being involved with the Activities provided by us, especially if you have a physical injury or medical condition, including, but not limited to a life threatening medical condition, such as a heart condition or any other medical condition, and you will rely solely on your own assessment of these dangers, hazards and risks before participating in those Activities, taking into account that the Activities may be located in areas where it may be difficult to access emergency medical services.

4.15 You confirm that any information you have provided us is true and correct in relation to your medical history and any existing health conditions you have, and if required by us, have obtained or will obtain medical advice from your GP or appropriate medical professional, prior to participating in our Services, to ensure you are not at major risk of injury, or physical or mental harm during activities conducted during the provision of our Services.

4.16 You acknowledge and agree that the above warning of the risks associated with the Activities and the Services constitutes a risk warning in accordance with the Civil Liability Act 2002 No 22.

5 WAIVER AND RELEASE OF LIABILITY

5.1 To the extent permitted by Law and in consideration of being permitted to participate in our Services, you agree that you will not make, take or seek any Claim against BJ Cush Pty Ltd (ACN 130 055 855) trading as Bondi Icebergs Gym and its officers, employees, agents, representatives and independent contractors (all collectively referred to as “the Releasees”) arising directly or indirectly out of or in connection with your participation in our Services and you unconditionally and irrevocably forever waive, release, acquit, covenant not to sue, and discharge the Releasees from and against any loss, liability, cost (including all legal costs and expenses on an indemnity basis), expense, damage, charge, penalty, outgoing or payment, however arising and whether present, unascertained, future or contingent and includes indirect and consequential loss (Loss) arising directly or indirectly out of or in connection with your participation in our Services.

5.2 Without limiting the above, you acknowledge and agree that in the event that you are injured, you will bring no Claims, legal or otherwise, against the Releasees in respect of that injury or damage and you hold the Releasees harmless.

5.3 You agree to release, waive, acquit, covenant not to sue and forever discharge the Releasees from all Claims (including, but not limited to, claims for negligence, breach of contract or breach of statute), or right to compensation for damages you may claim to have or that you may have arising out of acts or omissions by yourself or by the Releasees, as a result of the advice given by us or otherwise resulting from the Services provided by us.

5.4 You agree to hold harmless and indemnify the Releasees from any and all Claims made against or Loss suffered by the Releasees, which arises directly or indirectly as a result of or in connection with your participation in our Services.

5.5 This Disclaimer and Waiver shall bind your heirs, executors, personal representatives, successors, assigns, and agents.

5.6 This Disclaimer and Waiver operates jointly and severally in favour of the Releasees.

6 LIABILITY EXCLUSIONS

6.1 I acknowledge and agree that the Activities and Services constitute a recreational service within the meaning of section 139A of the Competition and Consumer Act, 2010 (Cth) as the Activities and Services are (i) a sporting event or similar leisure time pursuit; and/or (ii) other activity that involves a significant degree of physical exertion or physical risk and is undertaken for the purpose of recreation, enjoyment or leisure.

6.2 Provisions of the Competition and Consumer Act, 2010 (Cth) imply certain guarantees into contracts for the supply of certain goods and services, such as warranties that Services will be rendered with due care and skill and that goods supplied will be reasonably fit for purpose.

6.3 By signing this Disclaimer and Waiver I agree that:

(a) the application of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law are excluded;

(b) all rights under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law are excluded; and

(c) all liability of the Released Parties for a failure to comply with a guarantee under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law is excluded, in relation to the supply of the Activities and Services and to the extent any liability is in respect of:

i. death;

ii. physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);

iii. the contraction, aggravation or acceleration of a disease; or

iv. the coming into existence, aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual:

(i) that is or may be harmful or disadvantageous to an individual or the community; or

(ii) that may result in harm or disadvantage to an individual or the community.

7 ACKNOWLEDGEMENT OF UNDERSTANDING

7.1 You acknowledge that you have read this Disclaimer and Waiver and fully understand its terms. You acknowledge you are 18 years or over, or, if you are under 18 years of age, your parent or guardian agrees to the ‘Declaration for Minors’, under clause 8. You or your parent or guardian, if relevant, understand(s) that you are giving up substantial rights. You further acknowledge that by participating in the Services you agree to this Disclaimer and Waiver freely and voluntarily, without any inducement, assurance or guarantee being made to you. © Progressive Legal Pty Ltd (ACN 607 068 708) trading as Progressive Legal (2021). All Rights Reserved. This document was last updated 8 July 2022.

8 DECLARATION FOR MINORS AND MEDICAL RELEASE

8.1 If you are under 18 years of age on the day this declaration is acknowledged and accepted, the declaration must be acknowledged and accepted by your parent or guardian.

8.2 I warrant and certify that I am the parent or guardian of the child registering to participate in the Services (“My Child”) who is under 18 years of age and that he/she has my consent and is capable of participating in the activities involved in the Services. I confirm that I have read and understand the above Disclaimer and Waiver and that I agree, on behalf of My Child, to be bound by each of those conditions and having done so, I acknowledge and accept voluntarily.

8.3 Medical Release:

(a) I permit any authorised employee of yours to arrange for medical attention for My Child or to transfer My Child to a Medical Centre or to a hospital if, in the opinion of that person, medical attention is needed or is likely to be needed for My Child.

(b) I agree that on transporting My Child to any hospital or medical facility, you will have no further responsibility for, or in respect of, My Child.

(c) I agree to pay all costs associated with such medical care or attention and for related transportation for My Child and I agree to indemnify and to keep you indemnified for and in respect of any such costs incurred.

(d) I further authorise a Medical Centre or any hospital, its assigns, employees or agents to render any necessary or emergency medical care or attention to My Child if considered necessary by a medical practitioner.

(e) I am aware that the practice of medicine in a surgery is not an exact science and I acknowledge that no guarantees have been made to me/My Child as to the result of treatment or examinations at a Medical Centre or at any hospital.

I have read, understood and hereby agree to be bound by and to comply with all of the above terms of this Disclaimer and Waiver.