Terms & Conditions

These Terms and Conditions (Terms) govern your use of the services offered by BJ CUSH PTY LIMITED (ACN 130 055 855) as trustee for BJ Cush Family Trust trading as Bondi Icebergs Gym (we, us, our) and form a binding contractual agreement between us, and you.

These Terms are important and should be read carefully. Any questions about these Terms must be directed to us in writing at hello@bondiicebergsgym.com before engaging our Services.

Subject to any subsequent agreements you may be required to enter with us, these Terms constitute the entire agreement between you and us and supersedes all prior agreements, conduct, representations and understandings. You confirm you have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.

1 ACCEPTANCE OF TERMS

1.1 We note we will provide you with a copy of these Terms with the proposal before you engage our Services.

1.2 By signing these Terms or engaging our Services, you acknowledge that you have read and understood these Terms together with the Disclaimer and Waiver available on our website or otherwise made available to you by us, and agree to be bound by them.

1.3 Your continued use of our Services constitutes your acceptance of these Terms.

2 VARIATIONS TO TERMS

2.1 We reserve the right, in our sole discretion, to vary, change or amend any part of these Terms.

2.2 In that event, we will provide notice of the variation by publishing the updated Terms on our Site.

2.3 The updated Terms will be taken to have effect on the date of publication.

2.4 Your continued use of our Services and the Site constitutes your acceptance of the updated Terms and is taken as your agreement to be bound by these updated Terms.

2.5 Should you object or disagree to the Terms, your only remedy is to contact us at hello@bondiicebergsgym.com and immediately discontinue your use of the Services.

3 SERVICES

3.1 We provide the following Services:

(a) gym;
(b) access to a pool;
(c) access to a sauna;
(d) exercise facility;
(e) exercise machines and equipment;
(f) recommending personal trainers;
(g) personal training and supervised exercise  sessions by independent contractors;
(h) the provisions of various fitness events; and
(i) any other services we may decide to provide in the further.

4 MEDICAL DECLARATION

4.1 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.

4.2 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.

5 GENERAL DISCLAIMER

5.1 All our Services are intended for general fitness purposes only.

5.2 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.

5.3 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.

5.4 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.

5.5 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.

5.6 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.

5.7 The implementation of any physical exercises 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.

5.8 Prior to starting any of our recommended physical exercises, you should always consult with your medical practitioner.

5.9 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

5.10 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.

5.11 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.

5.12 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.

5.13 You agree to inform us of any pre-existing injuries that may affect 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.

5.14 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.

5.15 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.

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

5.17 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.

5.18 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 or exercise program on a medical condition.

5.19 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.

5.20 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.

5.21 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.

5.22 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.

5.23 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 Icebergs Club. Further, you also acknowledge and agree that we are unable to supervise or provide any assistance to you for anything outside of the gym.

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

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

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

5.27 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.

5.28 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.

5.29 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.

5.30 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.

5.31 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.

5.32 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.

5.33 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.

5.34 You acknowledge and agree to ensure that you vacate the premises when asked by us, our employees, affiliates, independent contracts, and representatives.

5.35 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.

5.36 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.

6 YOUR OBLIGATIONS

6.1 During the delivery of our Services, you will ensure that you will:

(a) be respectful to us, our employees, affiliates, independent contractors, representatives and other members;

(b) be responsible for your own results, safety, and the safety of others around you;

(d) inform us of any changes in your contact details, bank or credit card details for payment or any other information relevant to your membership;

(e) comply with the Fee and Payment terms; and

(f) comply with your ongoing obligations covered under the Disclaimer and Waiver available on our website or otherwise made available to you by us.

7 CONFIDENTIALITY

7.1 We respect your confidential information, (including health and other sensitive information collectively Confidential Information) and by using our Services, you agree to respect the same rights of the other gym members and our employees, affiliates, independent contractors, and representatives.

7.2 Your Confidential Information will be collected and treated in accordance with our Privacy Policy available online.

7.3 You agree:

(a) that any confidential information shared by other gym members and our employees, affiliates, independent contractors and representatives is confidential, belongs solely and exclusively to the gym member who discloses it or to us, and is not to be used or disclosed to any other person;

(b) that all materials and information provided to you by us are our confidential and proprietary information and intellectual property, belong solely and exclusively to us, and may only be used by you as authorised by us; and

(c) that if you violate, or threaten to violate, any of your agreements contained in this clause we will be entitled to, among other things, injunctive relief to prohibit such violations.

8 COPYRIGHT AND TRADE MARK NOTICES

8.1 All material delivered by us via our Services, including (but not limited to) our training materials, online posts, workshop content, case studies, training agenda, information, text, graphics, and coding (Our Content), is subject to copyright. While you may read, review and use Our Content for non-commercial, personal or internal business purposes, you must obtain our prior written permission if you’d like to copy or reproduce it. Modification of Our Content for any other purpose is a violation of our copyright and other proprietary rights, and is strictly prohibited.

8.2 You acknowledge that you do not acquire any ownership rights by using Our Content.

8.3 The trade marks, logos, and service marks displayed on Our Content to denote our brand are either registered or unregistered trademarks of ours (our Marks). Our Marks, whether registered or unregistered, may not be used in connection with any product or service that does not belong to us, in any manner that is likely to cause confusion with customers, or in any manner that disparages us.

8.4 Nothing contained in Our Content should be construed as granting, by implication, estoppel or otherwise, any license or right to use any our Marks without our express written permission.

8.5 You agree that damages may be an inadequate remedy to a breach of these Terms and acknowledge that we will be entitled to seek injunctive relief if such steps are necessary to prevent violations of its intellectual property rights.

9 TERMINATION AND REFUNDS

9.1 We reserve the right to suspend or terminate your use of our Services with immediate effect if you breach these terms, as determined by us in our sole discretion.

9.2 We reserve the right to terminate our Services and these Terms immediately at our discretion in the event that we fail to receive payments from you.

9.3 If you terminate our Services early (prior to your Services being completed), you acknowledge and agree that a cancellation fee of $250 applies as per clause 11.

9.4 Refunds are not provided for our Services as per clause 11, other than in accordance with the Australian Consumer Law, as set out in Schedule 2 to the Australian and Competition Act, 2010 (Cth).

10 FEES

10.1 All fees for our Services are in Australian Dollars (AUD).

10.2 All fees are inclusive of GST, unless indicated otherwise.

10.3 We reserve the right to modify, cancel and limit any our Service and Fee at any time.

11 PAYMENTS

11.1 Subject to the initial 48-hour cooling-off period commencing on the date of these Terms, you accept to receive our Services for a fixed and locked in 12-month period.

11.2 You agree to make payments for our Services by choosing between periodic direct debit payments or a one-off up-front payment.

11.3 By choosing the periodic direct debit payments option, you acknowledge and agree:

(a) payments will be deducted fortnightly commencing on the date of these Terms and continue until you cancel our Services;

(b) a $250 cancellation fee will apply if you decide to cancel our Services any time prior to the expiry of the initial 12 months commencing on the date of these Terms;

(c) your membership is ongoing and the payments will continue to be deducted at the same rate after the expiry of the initial 12 months, until you notify us in writing regarding your intention to stop receiving our Services;

(d) you are responsible for ensuring that you have sufficient funds in your nominated bank account prior to us processing your fortnightly payments;

(e) our direct debt provider (EziDebit) will charge you a dishonour fee of $14.80 for each failed payment, and this fee will be automatically deducted from your authorised account;

(f) we reserve the right to cancel our Services if you fail or refuse make payments, or withhold, freeze or block transactions;

(g) we reserve the right to on-sell or otherwise authorise a debt-collection or other authorised agency to collect pending payments; and

(h) you must pay us all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.

11.4 By choosing the one-off up-front payment option, you accept that:

(a) you will make a one-off up-front payment at the date of these Terms as a prepayment to receive our Services for the following 12 months; and

(b) when your membership is due to expire, you can choose to renew the membership at your current rate by registering your interests with us before the expiration date. If you fail to do so, your membership will be set at the updated fee.

11.5 Subject to the 48 hour cooling-off period, all payments made for our Services are non refundable.

11.6 Your use of our Services may be put on hold as per the following terms:

(a) All requests for Service to be put on hold will be made in writing to hello@bondiicebergsgym.com 2 weeks in advance of such holding period and will be done at a cost of $10 per week which will be incurred by you.

(b) Holding requests will not be accepted if there are any existing outstanding payments owing by you.

(d) If you are unable to use our Services due to a temporary physical incapability, which is verifiable by a medical certificate, you may request for a hold on our Services for a period of no more than 12 weeks in a year, unless otherwise agreed by us in writing.

(e) Any hold on services will not be backdated or carried forward into a renewed membership.

(f) Members who have paid one-off up-front payment for 12 months may have their allocated hold time added to the end of their original contract period of 12 months.

12 LIABILITY IS LIMITED

12.1 We provide the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by Law.

Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by Law.

12.2 Without limiting the generality of clause 12.1, we expressly exclude any liability in contract, tort or otherwise for any injury, damage, loss, delay or inconvenience caused directly or indirectly by your use of our Services.

12.3 Subject to the other terms of this clause, our maximum aggregate liability owed to you for any loss or damage or injury arising out of or in connection with the supply of our Services under these Terms, including any breach by us of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you for the particular service under these Terms.

12.4 The disclaimers, limitations of liability and indemnities within these Terms do not exclude rights that may not be excluded by law, including but not limited to, those rights under the Australian Consumer Law.

12.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option, to the resupply of the Services or the payment of the cost of resupply.

12.6 Subject to the other terms of this clause, we exclude any liability owed to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill or reputation or loss of use or corruption of data or information.

12.7 This clause applies to the fullest extent permitted by Law and shall survive termination of these Terms.

13 YOUR INDEMNITY

13.1 You indemnify us against any losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by us arising out of or in connection with:

(a) your use of our Services;

(b) any claim made against us or you by a third party arising out of or in connection with the provision of our Services and/or these Terms;

(d) any reliance by you or a third party on our Services or any advice or information provided in connection with the provision of our Services and/or these Terms;

(e) the enforcement of these Terms; and

(f) any negligent act, omission or wilful misconduct on your part.

13.2 You must make payments under this clause in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law.

13.3 This clause survives termination of these Terms.

14 FORCE MAJEURE

14.1 We will not be in breach of these Terms or liable to you for any Loss incurred by that other party as a direct result of our failing or being prevented, hindered or delayed in the performance of our obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.

14.2 If a Force Majeure Event occurs, we will notify you in writing as soon as practicable with a notice stating the particulars of the Force Majeure Event and an estimate of the anticipated delay.

14.3 On providing the notice in the above clause, our obligation to provide the Services to you will be suspended for the duration of the delay arising out of the Force Majeure Event. During this suspension period, we will use all reasonable endeavours to perform our obligations. .

14.4 The performance of the affected obligations will be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

14.5 References to a Force Majeure Event in this clause means: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(a) strikes, lock-outs or other industrial action;

(b) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(d) epidemic, pandemic, health emergencies, disease;

(e) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(f) interruption or failure of utility services (including the inability to use public or private telecommunications networks); and

(g) the acts, decrees, legislation, regulations or restrictions of any Government Agency; however does not include a lack of funds. References to Loss in this clause means: any loss, liability, cost, charge, expense, Tax, Duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

15 NO DISPARAGEMENT

15.1 At all times, you must not make any public or private statement or comment, whether oral or in writing, which in our reasonable opinion is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about us and/or any of our Services nor any statement that is false and does or has the tendency to damage our reputation of by any method including but not limited to any social media platform or review website anywhere in the world.

15.2 Should you breach this clause, you hereby indemnify us in accordance with clause 13 above.

16 SEVERABILITY

16.1 If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

17 NO ASSIGNMENT

17.1 You cannot transfer or assign your rights in accordance with these Terms, including any membership or registration with us, without our prior written consent.

17.2 We may assign or transfer our rights and obligations under these Terms at any time, upon prior written notice to you of at least 4 calendar weeks.

18 DISPUTE RESOLUTION

18.1 If a dispute arises between the parties in relation to these Terms, the dispute must be dealt with in accordance with this clause.

18.2 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.

18.3 In the case of claims against us, all notices are to be provided to hello@bondiicebergsgym.com, as soon as practically possible, no later than 5 business days after the delivery of our Services.

18.4 We will then investigate the matter and provide you with a response to your claim within 10 business days.

18.5 If the dispute is not resolved by agreement within 10 business days of the Second Party receiving the notice referred to above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further 5 business days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.

18.6 Once a mediator is appointed, the parties agree that:

(a) The costs of the mediator shall be borne equally between the disputing parties.

(b) The chosen mediator shall determine the procedures for mediation.

18.7 If the parties have not mediated a resolution of the dispute within 10 business days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it considers fit in relation to the dispute.

18.8 Nothing in this clause prevents a party from commencing proceedings seeking urgent interlocutory relief from a court of competent jurisdiction to hear the matter, if, in that party’s reasonable opinion, it is necessary to protect their rights.

18.9 Despite the existence of a dispute the parties must continue to comply with their obligations under the contract.

18.10 This clause survives termination of these Terms.

19 APPLICABLE LAW

19.1 These Terms shall be construed in accordance with and governed by the laws of New South Wales, Australia. You consent to the exclusive jurisdiction of the courts in New South Wales to determine any matter or dispute which arises between us.

20 YOUR FEEDBACK

20.1 We welcome enquiries or feedback. Unless specifically stated by you, we shall treat any information you provide us with, as non proprietary and non-confidential. Please see our Privacy Policy for further details.

20.2 If you have questions or comments regarding these Terms or our Services, please email us at hello@bondiicebergsgym.com.

These terms and conditions were last updated 7 July 2022.