Primary Member Terms and Conditions

1. What this agreement is and how you accept it

1.1 We are Fitness Passport Pty Limited ACN 118 426 029 (FP, we, us, our).

1.2 You are the person or persons named as the Member at Sign-up (Member, you, your).

1.3 We want to contract with you to give you access to participating gym, swimming pool or leisure facilities (Facilities), and to digital services, through a Fitness Passport membership (Membership).

1.4 These terms and the online sign-up process (Sign-up) together make up a legally binding agreement between you and FP (the Agreement).

1.5 The Schedules form part of this Agreement.

1.6 You accept this Agreement by completing the online Sign-up at www.fitnesspassport.com.au. Completing Sign-up includes ticking the box confirming that you have read and accept these terms.

2. Who can be a member

2.1 We invite people to become a Fitness Passport member if they are eligible under clause 2.3 and suitable for FP Membership.

2.2 We may restrict any individual or family from gaining a Membership.

2.3 To be eligible for a Membership you must be either:

1. an employee of an employer who is a party to a current agreement with FP under which we make Memberships available to that employer’s employees (an Employer Engagement Agreement); or
2. an immediate family member of such an employee, as set out in Schedule 2.

This clause does not limit any other provision of this Agreement or our rights at law.

2.4 There are three classes of Member: Primary Member, Secondary Member and Minor Member (together, the Members). Schedule 2 sets out who falls into each class.

2.5 Schedule 1 Part A sets out the Membership types we offer. Your Membership type determines who your Membership covers. Your Membership tier determines which Facilities and services your Membership reaches, and Schedule 1 Part B explains where we publish the tiers available to you. We may offer additional Membership types and Membership tiers from time to time.

2.6 An Individual Fitness Passport is for the sole benefit of the Primary Member. You must not transfer or share any benefit or entitlement attached to it.

2.7 Schedule 2 also sets out the age requirements that apply to each class of Member, and the evidence we may ask you for.

2.8 If your child joins as a Minor Member and turns 18 during the Membership, we will automatically upgrade your Membership to include an Additional Dependent Passport, and charge you the membership fee for that Membership type from the next direct debit cycle. This does not apply if you tell us to cancel the Minor Member’s Membership.

2.9 You warrant that the details you enter at https://portal.fitnesspassport.com.au/dashboard/memberdetails are accurate and correct in every particular aspect.

2.10 When your Membership commences depends on your employer. If your employer already participates in the Fitness Passport program when you sign up, your Membership commences on the date we approve it. We calculate a pro-rated fee from that date and add it to your first direct debit. If your employer is new to the program, your Membership commences on the date of the Primary Member’s first scheduled payment, and no pro-rated fee applies. Your access begins on the date your Membership commences. Your initial fixed term runs from the date of your first fee payment under clause 3.3, which may be a later date.

2.11 A Secondary Member may attend a Facility only after accessing their Digital Membership Card.

2.12 Your Membership tier is a tier we have agreed with your employer. Where your employer has more than one tier available, you may choose between them. A Membership tier may be available only to employees of employers we have nominated for that tier. Your employer’s page on our website says which tiers are available to you.

2.13 We decide which employers are nominated for a Membership tier. We may add or remove an employer at any time by giving affected Members not less than 40 days’ notice.

2.14 Only the Primary Member may make changes to the Membership. Changes include changing the Membership type or the Membership tier, changing the details or the nominated account, adding or removing a Secondary Member or Minor Member, suspending the Membership and cancelling it.

2.15 The Primary Member may authorise a Secondary Member or Minor Member to make changes on their behalf by telling us in writing. The authority continues until the Primary Member withdraws it in writing.

2.16 Clause 2.14 does not prevent a Secondary Member exercising a right they have under the Secondary Member Terms in their own name, including withdrawing a consent.

3. Fees, payment and direct debit

Membership fees

3.1 Membership fees are set out on your employer’s page on our website and in the App. We charge them fortnightly, whether or not you use your Membership. We review them annually.

3.2 Schedule 3 sets out the other fees and charges that may apply.

3.3 Your Membership is for an initial fixed term of one year, commencing on and from the date of your first fee payment.

3.4 You agree it may be reasonably necessary for us to increase the membership fees from time to time – for example, if the cost of operating the program increases.

3.5 We will use reasonable endeavours to notify members not less than 40 days before an increase. An increase applies to you for the balance of your Membership term.

3.6 You acknowledge we may increase membership fees during your initial one year contract term.

3.7 If your Membership ends and you re-join later, our trading terms current when you re-join govern the later Membership. It is a separate agreement, and a new initial fixed term of one year starts on the date of your first fee payment under it.

3.8 This applies however your earlier Membership ended, including where we terminated it. We may waive the new initial fixed term, and we will do so if your earlier Membership ended because of our error.

How you pay

3.9 Direct debit from your nominated account is the only way you may pay membership fees. You must pay each fortnightly fee on or before the due date.

3.10 You must sign all forms and give all authorities we reasonably request so the direct debit facility is established and maintained while your Membership continues.

Failed and stopped payments

3.11 If a payment to us is suspended or cancelled for any reason, you must immediately pay the amount owed when we ask. If you do not, we may cancel your Membership immediately without notice.

3.12 Fees continue to accrue until you give us notice to cancel under clause 7.9.

3.13 If we cancel your Membership under clause 3.11 before your initial 12 month minimum period ends, cancellation charges under Schedule 4 may also apply.

3.14 Clauses 3.11 to 3.13 do not limit our other rights at law or under this Agreement.

3.15 If a periodic direct debit payment is not received, or fails without fault of FP, we may recover it when the next periodic payment is due. You authorise us to do so. The next periodic payment will be twice the usual amount.

3.16 You must sign any document and give your authority so we can recover the additional amount through the existing direct debit facility.

3.17 If the subsequent direct debit payment is also not received or fails, you must pay us the account dishonour fee in Schedule 3 for each occasion. That fee covers our administrative costs, including costs we pay to our payment service providers, resulting from the direct debit failing.

3.18 Clauses 3.15 to 3.17 are in addition to, and do not limit, clauses 3.11 to 3.14.

3.19 If your account is overdue, we may refer it to a third party collection agency. You consent to us giving that agency the personal information it needs to recover the amount you owe.

3.20 You must pay us the reasonable costs we actually incur in recovering an overdue amount, including the fees a collection agency charges us.

Refunds and your first payment

3.21 We will not refund membership fees paid in advance, except:

1. in the circumstances in clause 8.2; or
2. where required by law.

3.22 On approval of your membership we grant you immediate access to Facilities through the App. Your first periodic payment includes a pro-rated amount for the period between approval and your first direct debit. That amount is not refundable, except where the law requires us to refund it.

3.23 If you or anyone else, including a Secondary Member, continues or attempts to use the Facilities under your Membership after becoming ineligible, or after the relevant Membership is cancelled, we may continue to charge you as Primary Member the membership fees to cover all costs we incur.

Fees you pay to a Facility

3.24 A Facility may charge you an additional fee to issue Facility specific Facility Access Cards, tokens or passes. You pay it to the Facility on top of the membership fees.

3.25 To attend a Facility inside a licensed premises – for example, a Leagues Club or RSL Club – you may have to join the club directly as a member. That access is subject to the terms attached to that Facility’s membership.

3.26 We cannot guarantee a Facility will not charge a joining fee. We take no responsibility for any Facility that does. A joining fee does not alter this Agreement in any way.

3.27 It is your responsibility to understand any joining fees or other fees for the Facilities you choose to access.

3.28 You may be liable to pay any fees we incur in establishing and maintaining the payment arrangement because your nominated bank account is declined for payment.

If someone else contributes to your Membership fee

3.29 Clauses 3.30 to 3.38 apply only if an arrangement is in place under which someone other than you contributes to your Membership fee. We call each of them a Contributor and each contribution a Contribution. Your employer may be a Contributor under its Employer Engagement Agreement. So may another organisation that has a separate arrangement with us.

3.30 Where a Contribution applies, your Membership fee is made up of each Contribution, which the Contributor pays directly to us, and the Member Contribution, which is the balance and which you pay us by direct debit under clauses 3.9 and 3.10.

3.31 Before or at the time of Sign-up we will tell you the amount of each Contribution, the amount of the Member Contribution, and the Full Membership Fee that would apply if no Contribution was made. We will also tell you any eligibility criteria you must continue to meet for a Contribution to continue.

3.32 You must pay the Member Contribution. The fact that a Contributor pays its Contribution directly to us does not change that.

3.33 A Contribution is a benefit the Contributor provides to you. We do not guarantee it for the duration of your Membership, and we do not represent that it will be renewed or extended.

3.34 A Contribution arrangement is between us and the Contributor. You are not a party to it and have no rights under it. This does not affect your rights under this Agreement, including our obligations to notify you under clauses 6.15, 6.28 and 6.29, and your rights under clauses 6.16 and 7.19.

3.35 If a Contributor does not pay its Contribution when due, we will not seek that amount from you. Our rights under clauses 6.26 to 6.33 still apply.

3.36 If you join after a Contribution arrangement has started, the Contribution applies to your Membership for the remainder of that arrangement only, unless it is renewed or extended. We will tell you at Sign-up the Full Membership Fee that will apply when it expires.

3.37 We issue tax invoices and reconciliations to Contributors separately.

3.38 We do not give tax advice. Any tax consequences of a Contribution, including any fringe benefits tax, are a matter between you and the Contributor. We recommend you get independent advice if you have any concerns.

Direct Debit Request Service Agreement

3.39 If you elected to pay membership fees by direct debit, then by completing the online Sign-up you request and authorise us to arrange, through our own financial institution, a debit to your nominated account of any amount we deem payable by you under this Agreement.

3.40 We will make the debit through the Bulk Electronic Clearing System (BECS) from the account you nominated online. It is subject to clauses 3.41 to 3.51 (the DDRSA).

3.41 By accepting this Agreement you give us a valid instruction for your Direct Debit Request. You confirm you have understood and agreed to the terms governing the debit arrangements between you and FP set out in that Request and the DDRSA.

3.42 We will only arrange for funds to be debited from your account as authorised in this Agreement.

3.43 We may vary any detail of the DDRSA at any time by giving you at least 14 days written notice.

3.44 If you do not consent to a variation, you may notify us and cancel the DDRSA. You may do so on and subject to providing adequate replacement arrangements for payment of your periodic membership fees and any other money you owe under this Agreement.

3.45 It is your responsibility to ensure there are sufficient clear funds in your account to allow a debit payment under this Agreement.

3.46 If there are insufficient clear funds to meet a debit payment:

1. your financial institution may charge you a fee or interest;
2. you may incur fees or charges imposed or incurred by FP, including the fee in clause 3.17; and
3. you must arrange for the debit payment by another method, or have sufficient clear funds in your account by an agreed time so we can process it.

3.47 You should check your account statement to verify that the amounts debited are correct.

3.48 If you believe we debited your account in error, notify us and confirm that notice in writing as soon as possible so we can resolve your query more quickly. You may instead take your query to your financial institution.

3.49 If we conclude, acting reasonably and after investigating, that we debited your account incorrectly, we will arrange for your financial institution to adjust your account, including interest and charges. We will tell you in writing how much we adjusted.

3.50 If we conclude, acting reasonably and after investigating, that we did not debit your account incorrectly, we will respond in writing with our reasons and any evidence.

3.51 You should check:

1. with your financial institution whether direct debiting is available from your account, as it is not available on all accounts;
2. that the account details you gave us are correct, against a recent account statement; and
3. with your financial institution before completing the Direct Debit Request, if you have queries about how to complete it.

4. Using the Facilities

What your Membership gives you

4.1 You may attend any Facility, and use any service, included in your Membership tier. We publish the Membership tiers available to employees of your employer, and what each includes, on your employer’s page on our website.

4.2 You may visit each Facility included in your Membership tier as many times as you choose during your Membership. Not every Membership tier is available to every employer. Where a Membership tier is available only to employees of particular employers, we will say so when we promote that tier, and clauses 2.12 and 2.13 apply.

4.3 Your Membership does not cover visits that are part of an organised group or individual training program – for example, swimming lessons, swimming squads, diving training, netball training, water polo and school carnivals. This does not apply to a service that your Membership tier includes.

4.4 Your Membership does not cover babysitting services or creche visits.

Getting into a Facility

4.5 On acceptance of your application for membership, we will issue each Member a digital membership card in the App (Digital Membership Card). You may also see it called a Fitness Passport or an ID card. We do not issue a physical membership card.

4.6 To use a Facility included in your Membership, approach it and give it your Digital Membership Card and photographic identification acceptable to that Facility.

4.7 The Facility will then either give you a Facility access membership card (Facility Access Card) or require you to show your Digital Membership Card and photographic identification on each later visit.

4.8 If your Digital Membership Card carries a photo ID, you do not need to provide additional photographic evidence.

4.9 On confirmation of Membership, each Member may be issued a Facility Access Card for each Facility when they visit it, to permit access. A Facility Access Card includes, but is not limited to, a 24 hour electronic key. Members may also have to keep using their Digital Membership Card to gain entry.

4.10 If you access a Facility during unstaffed hours, you must buy an electronic out of hours access key for a fee paid directly to the gym on your first visit. The key permits access during unstaffed hours and records visitation. You must buy it whether or not you intend to use the gym outside staffed hours. Fees vary by location and are not governed by this Agreement.

4.11 There is no limit on the number of Facility Access Cards you may obtain from different Facilities, or on the number of Facilities included in your Membership that you may visit.

4.12 All Facility Access Cards are and remain the property of the individual Facility. You must return one on demand by the Facility.

4.13 We will regularly update the list of current financial Members for each Facility. All inactive Members will have their Facility-issued Facility Access Cards cancelled under clause 8.6.

Recording your visits

4.14 If a Facility requires you to scan an FP QR code to record visits, you must scan it with your mobile phone on every visit. This includes 24/7 facilities accessible outside staffed hours.

4.15 If you visit a Facility and do not register your visit, you may be banned from attending it.

Before you use a Facility

4.16 Access to each Facility is varied. It is your responsibility to check with each Facility for hours of operation, schedule of classes, access for dependants and availability of positions within classes.

4.17 You agree to consult an employee of each Facility on your first visit to undergo a fitness assessment and any other induction the Facility requires, and to determine the level of fitness of the Member. This may cost you.

4.18 Age restrictions apply to Facility access. Schedule 2 sets them out.

Which Facilities you can use

4.19 We engage Facilities venue by venue, not franchise by franchise. For example, being able to access Curves at one location does not mean you can access every Curves franchise. You can only use the Facilities at the locations we specify from time to time.

Facility rules of conduct

4.20 You agree that FP or a Facility has or may at any time develop rules of conduct for any Facility, which may relate to the health and safety of Members using a Facility or to requirements around access to a Facility. Those rules do not form part of this Agreement. We reserve the right at all times to vary them at any time.

4.21 Where a Facility notifies us, we will notify Members who attend it of any change to its rules of conduct by emailing the Primary Member.

Changes to the Facilities included

4.22 We use reasonable endeavours to maintain the quality of our network. Some Facilities may be removed from time to time, including where in our opinion a Facility is not being utilised or is being under utilised.

4.23 You agree that we reserve the right at all times to vary the services and Facilities offered at any Facility at any time.

4.24 We will notify Members who attend a Facility if it is removed from their Membership, by emailing the Member.

Services included with particular Membership tiers

4.25 Your employer’s page on our website says whether your Membership tier includes additional services at particular Facilities. Access to those services is subject to availability and to any conditions we notify you of from time to time.

4.26 We publish the Facilities offering those services, and the services available at each, in the App or on our website. We may update that list from time to time. We will use reasonable endeavours to notify you of material changes to it.

4.27 Additional services included in your Membership tier do not restrict your access to any other Facility included in that tier. You may continue to access those Facilities for the services your Membership otherwise includes.

4.28 A Facility may verify which Membership tier you hold before letting you access a service that only some Membership tiers include. If your Membership tier is not current or valid at the time of your visit, the Facility may refuse you access to that service.

4.29 If you access more than one category of service at a Facility in a single visit, you need record only one visit. We and the Facility determine how that visit is classified.

5. Using the App and our digital services

Using the App

5.1 We provide the Fitness Passport member mobile application and the Fitness Passport member web portal (together, the App) so you can access your Digital Membership Card, find Facilities, and use any digital services included in your Membership.

5.2 We do not warrant that the App will be available at any particular time, or that it will be free from interruption or error. It may be unavailable during maintenance, during an outage, or because of a failure by a third party we rely on.

5.3 You are responsible for having a device and an operating system that meet the minimum requirements set out in the App’s listing in the relevant app store.

5.4 We do not support devices that have been jailbroken, rooted or otherwise modified, or operating system versions we no longer support. The App may not work on them.

5.5 App stores apply their own age ratings and their own terms to downloading and using the App. Those ratings and terms are set by the app store, not by us.

5.6 We may change, suspend or withdraw any feature of the App at any time. Clause 6.16 applies if a change has a detrimental impact on you.

5.7 If you cannot access your Digital Membership Card through the App, contact us. We will use reasonable endeavours to give you another way to access Facilities while the problem continues.

5.8 Your obligation to pay membership fees continues while the App is unavailable. This does not limit your rights under clause 11.14.

Digital services

5.9 Digital services means anything we make available to you through the App other than access to Facilities, including in-app content and access to third party applications.

5.10 We will tell you which digital services your Membership includes. We may add, change or withdraw a digital service at any time.

5.11 We may restrict or suspend your access to some or all digital services where:

1. your Membership is suspended under clauses 6.5 to 6.14;
2. you do not meet a minimum age that applies to that digital service;
3. you are in a location where we are not licensed or permitted to make that service available;
4. your Membership is cancelled or terminated; or
5. we reasonably believe your use breaches this Agreement, or breaches the terms of a third party whose service we make available to you.

5.12 Where a minimum age applies to a digital service, we will tell you what it is before you use that service.

5.13 If we restrict your access to a digital service under clause 5.11, your access to Facilities is not affected unless this Agreement says otherwise.

In-app content

5.14 Content means the fitness, exercise, meditation, mindfulness and general wellbeing material we make available in the App from time to time, including video, audio, text, images, programs, classes and associated metadata, and the sections of the App in which that material is presented.

5.15 The Content includes material we produce or license, and material supplied to us by third party content providers (each a Content Partner). A reference to a Content Partner includes its related bodies corporate, affiliates and licensors.

5.16 We deliver the Content in the App only. It is streamed to your device. It is not supplied to you as a download or as a copy you keep.

5.17 You can only reach the Content after we have authenticated you in the App as an eligible Member. You must not let any other person use your credentials to access the Content, including another Member of your Membership or any person aged under 18 years.

5.18 We may take reasonable steps to verify your age and eligibility. We may withhold or withdraw access to the Content if we are not satisfied that you are eligible.

5.19 We grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to stream and view the Content in the App for your own personal, private, non-commercial use during your Membership. The licence is subject to your compliance with this Agreement.

5.20 We or the relevant Content Partner own all intellectual property rights in the Content. Nothing in this Agreement transfers any of those rights to you, or gives you any right in the Content other than the licence in clause 5.19.

5.21 We may at any time add, substitute, vary, suspend, withdraw or remove any Content or any part of it. This includes where our arrangement with a Content Partner ends or changes, or where a Content Partner withdraws or modifies the material it supplies. Clause 5.23 applies where we do.

5.22 We may also change the App, including the way the Content is presented, categorised or delivered, at any time.

5.23 Where we withdraw Content and that materially changes what is available to you, we will notify affected Members under clause 6.15. If the withdrawal is required by a Content Partner, or is otherwise outside our control, we will instead notify affected Members as soon as reasonably practicable. Clause 6.16 applies to the change either way if it has a detrimental impact on you.

5.24 If your Membership is suspended under clauses 6.5 to 6.14, your access to the Content is suspended for the same period.

5.25 We may suspend or withdraw your access to some or all of the Content where we reasonably believe you have breached this Agreement, including clauses 9.19 to 9.21.

5.26 When your access ends you must stop using the Content. You have no right to keep any copy of any Content, and we have no obligation to give you one.

Digital wellness services

5.27 Digital Wellness Services means the digital health and wellbeing applications we make available as part of your Membership. The App lists the ones currently available, and links to each Wellness Partner’s Partner Terms and privacy policy.

5.28 Each Digital Wellness Service is supplied by an independent third party (each a Wellness Partner).

5.29 We do not own, develop, operate, host or control any Digital Wellness Service. We do not supply the content, programs, recommendations or other outputs a Digital Wellness Service generates. The Wellness Partner supplies the Digital Wellness Service to you.

5.30 Our role is limited to:

1. arranging for eligible Members to be entitled to access the Digital Wellness Services;
2. issuing you an access token, so the Wellness Partner can confirm that you hold a current entitlement; and
3. deactivating that access when you cease to be eligible.

We do not give a Wellness Partner your personal information, and the access token does not identify you. You deal with the Wellness Partner directly, under its own privacy policy, which the App links to. Our Privacy Policy explains what we receive from Wellness Partners and the reporting we give employers.

5.31 Each Wellness Partner also imposes its own eligibility, minimum age, device, operating system, geographic and account requirements. Your access is subject to those requirements, which may be more restrictive than clause 5.54. We are not responsible if you do not meet them.

5.32 Using a Digital Wellness Service is optional. Being eligible does not oblige you to use one.

5.33 To use a Digital Wellness Service:

1. we will issue you an access token, which confirms to the Wellness Partner that you hold a current entitlement; and
2. you must then complete the Wellness Partner’s own registration process and create an account with that Wellness Partner in your own right.

Until you complete step (b) you cannot use that Digital Wellness Service.

5.34 When you register with a Wellness Partner you enter into a separate agreement directly with it. Its terms of service, end user licence agreement, acceptable use policy, community guidelines and privacy policy govern your access to and use of that Digital Wellness Service, as they apply and are amended from time to time (the Partner Terms).

5.35 Read the Partner Terms before you register. The App links to the Partner Terms current from time to time. By registering with a Wellness Partner you agree to be bound by its Partner Terms.

5.36 We are not a party to the Partner Terms and cannot vary, waive or enforce them on your behalf. Nothing in this Agreement varies the Partner Terms, and nothing in the Partner Terms varies this Agreement as between you and us.

5.37 Any question, complaint, dispute or claim about a Digital Wellness Service is a matter between you and that Wellness Partner, and you should raise it with them directly. This includes its content, availability, functionality, your account, and any payment you make to a Wellness Partner. We may help you make contact with the Wellness Partner, but we do not have to.

5.38 A Wellness Partner may offer additional features, content or subscription tiers that your Membership does not include and that you must pay it for separately. Any such purchase is a separate arrangement between you and the Wellness Partner. We do not receive any part of that payment, we are not liable for it, and we will not refund it. Clause 10.3 also applies.

5.39 If you already subscribe to a Wellness Partner’s service directly, your entitlement under your Membership does not cancel, replace, refund or credit that subscription.

5.40 Wellness Partners each treat an existing subscriber who redeems an entitlement differently. Before you register, check with the Wellness Partner how your existing subscription will be treated, and cancel it directly with them if you no longer want it. We are not responsible for any amount you continue to be charged under a subscription you hold directly with a Wellness Partner.

5.41 If we issue you an access token and you do not complete registration, the token lapses when you cease to be eligible under clause 5.54, 5.55 or 5.31. We may re-issue a lapsed token while you remain eligible.

5.42 A Wellness Partner may send you communications about its service, including service messages and marketing. It sends those under its own terms, privacy policy and consent processes, not ours. To stop them, unsubscribe or change your preferences with that Wellness Partner directly.

5.43 We may add, substitute, vary, suspend or remove any Digital Wellness Service at any time, in our absolute discretion. We decide which applications are offered and for how long. This includes where our arrangement with a Wellness Partner ends or changes, or where the Wellness Partner changes or withdraws its offering.

5.44 Where we remove a Digital Wellness Service from the Membership, or substitute one for another, we will notify affected Members by email under clause 6.15. If the removal or substitution is required by a Wellness Partner, or is otherwise outside our control, we will instead notify affected Members as soon as reasonably practicable.

5.45 A Wellness Partner may change, update, suspend or discontinue any feature, program or content within its Digital Wellness Service, or amend its Partner Terms, at any time and without notice to us. We have no control over those changes and are not responsible for them.

5.46 Clause 6.16 applies if a change under clauses 5.43 to 5.45 has a detrimental impact on you. Substituting one Digital Wellness Service for another of substantially similar type and scope is not of itself a detrimental impact, where the Digital Wellness Services taken as a whole are not materially reduced. This clause does not affect our obligation to notify you under clause 5.44.

5.47 If your Membership is suspended under clauses 6.5 to 6.14, we may suspend or deactivate your access to the Digital Wellness Services for that period.

5.48 Depending on the Wellness Partner, restoring access afterwards may require you to complete its registration process again, and any history or content in your account with that Wellness Partner may not be preserved.

5.49 When your access ends we will deactivate your access token. Your account with a Wellness Partner may continue to exist on that Wellness Partner’s terms.

5.50 Some Wellness Partners may convert an account to a free plan, and some may offer or move an account to a paid plan. In that case the Wellness Partner charges you directly, not us. Check the position with the Wellness Partner and close or cancel any account or plan you do not want to continue. We do not receive any part of, and are not responsible for, any amount a Wellness Partner charges you after your access ends.

5.51 We cannot retrieve, restore or transfer any content, history or data a Wellness Partner holds. If you want to keep that information, export it from the Digital Wellness Service before your access ends.

Rules that apply to both the Content and the Digital Wellness Services

5.52 Clauses 5.53 to 5.57 apply to the Content and to the Digital Wellness Services.

5.53 Neither the Content nor a Digital Wellness Service is a Facility. A reference to a Facility in this Agreement does not include the Content, a Digital Wellness Service or a Wellness Partner, except where this Agreement expressly says otherwise.

5.54 They are available to Primary Members and Secondary Members who are aged 18 years or over and whose Membership is current and financial.

5.55 Minor Members, and any other Member aged under 18 years, are not eligible. If a Minor Member turns 18 during the Membership and their Membership continues, including as an Additional Dependent Passport under clause 2.8, they become eligible from that date.

5.56 Access is included in your Membership at no additional fee payable to us. They are not separately priced, itemised or invoiced to you, and no part of the membership fee is apportioned to them or is severable and referable to them. You are not entitled to a refund, rebate or reduction of the membership fee if you do not use them, or if any of them is unavailable, varied, substituted, withdrawn or removed. This clause is subject to clause 6.16 and clause 11.14.

5.57 Your access to the Content, the licence in clause 5.19, and your access to the Digital Wellness Services, end when any of the following happens:

1. your Membership is cancelled, terminated or otherwise ends;
2. you cease to be eligible under clause 5.54 or 5.55, or under clause 5.18 or clause 5.31;
3. if you are a Secondary Member, the Primary Member’s Membership is cancelled or terminated; or
4. we withdraw or remove that Content under clause 5.21, or remove that Digital Wellness Service under clause 5.43.

6. Changing, upgrading, downgrading and suspending your Membership

Upgrades and downgrades

6.1 You may at any time upgrade from an Individual Fitness Passport to a Family Fitness Passport.

6.2 You may downgrade from a Family Fitness Passport to an Individual Fitness Passport at any time. If you downgrade within the first 12 months, you must pay the downgrade fee for your Membership type set out in Schedule 4 Part B. The fee depends on how far into your contract you are. You do not pay that fee if a dependent child has turned:

1. 18, in which case an extra fee is payable; or
2. 25, in which case the dependant is ineligible to continue.

6.3 After the initial 12 month period you can upgrade or downgrade as you require, by notice in writing to us, and no downgrade fee applies. Clause 6.20 says when the new fee takes effect and clause 6.25 confirms that the change does not restart your initial 12 month minimum period.

6.4 Clause 2.8 applies if a Minor Member turns 18 during the Membership.

Suspension

6.5 You may suspend your Membership for a minimum of 2 weeks and a maximum of 2 months without documentation, and only for a maximum of 2 months per calendar year. The 2 week minimum does not apply where a suspension ends early under clause 6.10.

6.6 We will charge the service fee in Schedule 3 for each fortnight of your suspension request. It is not refundable if the suspension is later reduced or cancelled.

6.7 To suspend for longer than 2 months, you must supply evidence in the form of a flight itinerary, doctor’s certificate or other relevant documentation. We will then confirm whether your suspension is approved.

6.8 Membership payments will be suspended during the suspension. You must give us your suspension request before your next direct debit. If we receive it on or after your direct debit date, that payment will still be processed.

6.9 Partial suspensions are not permitted. Suspensions during the 30 day cancellation notice period under clause 7.2 are not permitted.

6.10 All members of the Membership will be suspended for the full duration approved. We will not backdate a suspension. If you, or any Member on your Membership, uses the Membership during a suspension, the suspension ends on that day, your Membership is reactivated automatically and membership fees restart from that date.

6.11 If a medical condition prevents you from using your Membership and you give us a letter from a certified physician stipulating an approximate period that you will be on a medical restriction, we will direct that the Membership be suspended for the duration of the injury or ailment.

6.12 After a suspension, your Membership resumes with the same rights and obligations that applied at the time of the suspension, including payment obligations and credit for any unused payments.

6.13 If a suspension occurs within the initial 12 month contract period, we will add its duration to the contracted period, so that the total period for which you have been a financial Member equals 12 months.

6.14 Except as set out in clauses 6.11 and 7.10, we reserve the right to determine the individual merit of each application, and to refuse a written request to cancel or suspend a Membership in line with the terms of this Agreement.

Changes we make to this Agreement

6.15 We will notify you of any change to the terms or conditions related to your Membership, or to the fees related to your Membership, by emailing the person your employer has appointed to administer the Fitness Passport program for its employees (the Fitness Passport Facilitator). That person is responsible for notifying you and is deemed to have notified you. We will give at least 40 days’ written notice.

6.16 If a change to a term of this Agreement, including a change to fees, has a detrimental impact on you, you may terminate this Agreement by giving us at least 30 days notice in writing. We will not charge a cancellation fee in those circumstances, including for Members in the first year of their Membership.

6.17 You agree the notification process in clause 6.15 is reasonable. If we comply with it, we have discharged our duties of notification of changes to you.

6.18 If you keep using your Membership after we notify you of a change under this Agreement, you are deemed to have accepted that change. This applies to a notification under clause 6.15 and to a notification under clause 4.21 or clause 4.24.

Changing your Membership tier

6.19 You may change to another Membership tier you are eligible for at any time. To do so, change your package in the member portal. You may not change your Membership tier more than once every 30 days.

6.20 The fee for your new Membership type or Membership tier replaces the fee for your old one from the next direct debit cycle. It is in place of that fee, not in addition to it.

6.21 Access to any additional services included in your new Membership tier starts once we have processed the change and it is reflected in the App. Access to any additional services included in your old Membership tier ends immediately.

6.22 Where we tell you at Sign-up that a minimum period applies to your Membership tier, you may not change out of that tier within that period. This does not apply if:

1. your employer ceases to be nominated for that tier under clause 2.13; or
2. we withdraw that tier under clause 6.24.

6.23 After that minimum period, you may change out of your Membership tier by giving us notice in writing. The change takes effect from the next direct debit cycle after we receive your notice.

6.24 We may withdraw a Membership tier by giving affected Members not less than 30 days’ written notice.

6.25 Changing your Membership type or Membership tier does not restart your initial 12 month minimum period. That period runs from the date of your first fee payment under clause 3.3.

If a Contribution to your fee ceases

6.26 A Contribution may cease for a number of reasons, including:

1. termination or expiry of the Employer Engagement Agreement;
2. suspension or termination of the Contribution arrangement, including for the Contributor’s non-payment;
3. you ceasing employment with your employer, or the Primary Member ceasing that employment if you are a Secondary Member;
4. you moving to a category of employment that is not eligible for the Contribution; or
5. you ceasing to meet a Contributor’s eligibility criteria.

6.27 The date a Contribution ceases is the Cessation Date.

6.28 We will notify you of the Cessation Date under clause 6.15, giving at least 40 days’ written notice before your fee changes. Clauses 6.29 and 7.21 are exceptions.

6.29 Where a Contribution ceases because the Contributor did not pay, we will give at least 30 days’ written notice instead.

6.30 If you join fewer than 40 days before a Cessation Date, we will tell you that date at Sign-up instead. Telling you at Sign-up satisfies clause 6.28.

6.31 From the Cessation Date your Member Contribution increases by the amount of the Contribution that has ceased. If every Contribution has ceased, you pay the Full Membership Fee.

6.32 The increased amount takes effect from the next direct debit cycle after the Cessation Date or, if we allow a Transition Period, after that period ends.

6.33 We may at our discretion continue your Membership on its existing terms for up to 40 days after the Cessation Date (a Transition Period).

7. Cancelling your Membership

When you can cancel

7.1 You may cancel at any time in the first 14 days from the date of your first direct debit, by giving notice in writing to us. Your Membership ends at the end of the period you have already paid for. You keep access to the Facilities until then, and no refund arises because no part of what you have paid is unused.

7.2 You may cancel following the expiration of the initial one year term by giving us at least 30 days notification in writing.

7.3 You may not cancel your Membership during the initial one year term, unless this Agreement or the law expressly provides otherwise. If you cancel during that term other than under clauses 7.1, 7.10 or 7.11, you must tell us in writing and you pay the cancellation fee under clause 7.5. No notice period applies. Clause 7.6 says when your Membership ends and when we charge the fee.

What happens when you cancel

7.4 If you cancel under clause 7.2, we will cancel your Membership before the next direct debit following the expiry of your 30 day notice period. Your Membership stays active during that period and membership fees remain payable for it. You will have access to Facilities for the period of the final direct debit period.

7.5 If you request cancellation in any other circumstances, you are liable for the Membership cancellation fee for your Membership type set out in Schedule 4. Clause 7.10 is an exception.

7.6 You do not pay twice for the same period. Where you cancel under clause 7.3 and a cancellation fee applies:

1. we will cancel your Membership at the end of the period you have already paid for, and before your next direct debit. You keep access to the Facilities until then. If we receive your cancellation request on the same day as your direct debit date, that direct debit will already have been processed, and your Membership ends before the following payment; and
2. we will charge the cancellation fee on your next direct debit date. If that payment fails, clauses 3.15 to 3.20 apply, including the account dishonour fee in Schedule 3 and referral to a collection agency.

7.7 The cancellation fee is determined by the date of cancellation in relation to the date of your first fee payment under clause 3.3, and any addition to that minimum date because your Membership was suspended. If you have held more than one Membership type during your Membership, the fee is the fee for the highest Membership type you have held.

7.8 Once your Membership is cancelled under this Agreement, we will cancel the relevant payments and remove your access to the App.

7.9 After your initial 12 month minimum period, your Membership continues automatically. We will keep charging you the membership fee until you request a cancellation by contacting us. To effect your cancellation you must give us written notice at [email protected].

Cancelling for hardship or medical reasons

7.10 You may lodge a written request with us to cancel your Membership for reasons of hardship. Reasons of hardship include, but are not limited to:

1. a job transfer to a location not covered by your employer’s FP program; or
2. a recognised medical condition, subject to clause 7.11.

If we cancel your Membership under this clause, you will not have to pay any cancellation fees.

7.11 If a medical condition prevents you from using your Membership and you give us a letter from a certified physician stating that you are on a medical restriction of an indefinite nature, we will agree to a cancellation of the Membership.

If you leave your employer

7.12 You must tell us in writing as soon as reasonably possible if you cease employment with the employer through whom you hold your Membership. Email us at [email protected]. Your employer may also tell us.

7.13 Membership fees continue to accrue and are payable until we are notified under clause 7.12, whether by you or by your employer.

7.14 Once we are notified, you may cancel your Membership without a cancellation fee, and we may terminate it by giving you written notice. Either applies whether or not your initial 12 month minimum period has ended.

7.15 If your Membership is cancelled or terminated under clause 7.14, it ends at the end of the period for which you have already paid. You keep access to the Facilities for the rest of that period. No cancellation fee applies, and no refund arises because no part of what you have paid is unused.

7.16 If neither you nor we end your Membership under clause 7.14, your Membership continues on its existing terms and membership fees remain payable. Where a Contribution applied to your Membership, clause 6.31 applies from the Cessation Date and clause 6.33 does not apply.

Returning cards

7.17 When you terminate your Membership with FP, you must return all Facility Access Cards to the relevant Facility for cancellation. We will also advise any relevant Facilities that you have terminated your Membership.

7.18 Cancelling ends your whole Membership, including your access to every Facility included in your Membership tier. If you want to keep your Membership but stop paying for additional services, change your Membership tier under clauses 6.19 to 6.23 instead of cancelling.

If a Contribution to your fee ceases

7.19 If a Contribution ceases for a reason outside your control, you may cancel your Membership without a cancellation fee. You may do so at any time up to 30 days after the increased amount first takes effect.

7.20 Clause 7.19 does not apply where the Contribution ceased because of something you did. Examples are moving to a category of employment that is not eligible under clause 6.26(d), ceasing to meet a Contributor’s eligibility criteria under clause 6.26(e), and withdrawing a consent under clause 12.8.

7.21 If you do not cancel under clause 7.19, your Membership continues at the increased amount under clause 6.31.

7.22 If a Contribution ceases because you ceased employment with your employer, or because the Primary Member did, clauses 7.12 to 7.16 apply.

8. When we can end or suspend your Membership

8.1 We reserve the right at any time to revoke the Membership of any Member, or the right of any Member to use the benefits provided by the Membership, for any legitimate business, legal or regulatory reason. We will give the Member not less than one month notice of that termination and revocation. This clause is subject to clause 8.3.

8.2 If we terminate a Member’s Membership under clause 8.1, we will refund that Member the amount of their membership fee (if any) paid in advance and unused as at the date of termination. This clause is subject to clause 8.3.

8.3 We may terminate or cancel a Member’s Membership immediately, without the obligation to reimburse in clause 8.2 or otherwise, in each of the following circumstances:

1. breach of this Agreement by a Member;
2. breach of any participating Facility’s terms and conditions of use; or
3. failure to pay any outstanding money required under this Agreement after we have informed the Member of the outstanding amount.

This clause does not limit clause 8.1. Any fees we withhold cover the costs we incur as a result of your payments being in arrears or your breach of this Agreement.

8.4 A Member found breaching the terms and conditions of Membership is liable to pay for any visits made outside the FP terms and conditions, including visits made as the result of a Secondary Member or Minor Member breaching them. Clauses 9.5 to 9.7 give examples of that breach.

8.5 Any fraudulent or prohibited use of your Membership under clauses 9.8 and 9.9 is a breach of these terms and may result in the suspension or termination of your Membership.

8.6 If we terminate a Member’s Membership, we will immediately tell each participating Facility. All Facility Access Cards issued to that Member by participating Facilities will immediately be cancelled and the Member must immediately return them. The Digital Membership Card will be deactivated.

8.7 We may cancel your Membership immediately without notice in the circumstances in clause 3.11.

If your employer’s agreement with us ends

8.8 If the agreement between FP and your employer is terminated, we may in our discretion terminate your Membership and refund, on a pro-rated basis, the amount of the membership fee (if any) paid in advance of the date of termination.

8.9 On termination of this Agreement under clause 8.8, you must immediately return your Facility Access Cards to the Facility and delete the App.

8.10 If the agreement between FP and your employer is terminated and we have not terminated your Membership, you may continue to use your Membership until we terminate this Agreement under clause 8.8.

9. Your responsibilities and conduct

9.1 You must abide by each Facility’s terms and conditions of entry or use. You must ensure that all associated family Members do the same.

9.2 You must seek instruction from the relevant instructors at each Facility before using any piece of equipment.

9.3 You acknowledge we have advised you that you should attend an appointment with your own General Practitioner (Dr) for the purposes in clause 9.4, and that you have either attended, or elected of your own volition not to attend, that appointment.

9.4 The purposes are:

1. ensuring you are sufficiently fit and well to attend one or more of the Facilities and undertake physical activity at any such Facility; and
2. obtaining a full physical health check so you can advise any Facility you attend of any prevailing medical condition that might affect your ability to use any piece of equipment or participate in any fitness program.

Prohibited use

9.5 You must not allow anyone other than the person listed on the Digital Membership Card to use that card.

9.6 You must not add ineligible members to your Membership.

9.7 You must not use the Digital Membership Card to obtain benefits outside the prescribed program.

9.8 You must not use your Membership in a way that is fraudulent, including by registering visits at Facilities where you are not actually using the Facility’s services.

9.9 We prohibit the use of your Membership at Facilities where we reasonably believe there is a heightened risk of fraudulent activity, including using your Membership to enter any Facility where you or a member of your immediate family is an owner, employee or contractor of that Facility.

9.10 There are some instances where an owner, employee or contractor of a Facility may be eligible for a Fitness Passport Membership, whether as a Primary Member or a Secondary Member. That will not be considered fraudulent activity.

9.11 We will not make any payment to the relevant Facility relating to a visitation prohibited under clause 9.9, and we will not recognise that visitation in any other manner.

9.12 We expressly forbid the use of a Fitness Passport Membership in the course of work experience or entry into the workplace, or where a Member is working in the gym, including as a personal trainer.

Your responsibilities for Secondary Members and Minor Members

9.13 The Engagement Form is the part of Sign-up in which the Primary Member nominates each Secondary Member and Minor Member. You warrant that you have the authority and approval of the Secondary Members to nominate them on the Engagement Form.

9.14 You acknowledge that Secondary Members will not be entitled to access any Facilities until they have completed the activation procedure for their Fitness Passport.

9.15 You acknowledge it is the responsibility of the Secondary Member to complete the activation procedure. You undertake to FP to inform the Secondary Member of the activation requirement and procedure, and to tell them that the Secondary Member Terms and this Agreement are available in the App and on our website.

9.16 You agree we may charge the fees associated with a Family Fitness Passport or an Additional Dependent Passport from the commencement of your Membership, whatever the activation status of the Fitness Passport for any Secondary Member.

9.17 You warrant that you have the lawful authority and capacity, as the parent or legal guardian of the Minor Member, to enter this Agreement on behalf of the Minor Member.

9.18 You warrant to FP that you will ensure each Minor Member and each Secondary Member complies with this Agreement and the rules in clauses 4.16 to 4.20 and clause 9.1.

Using in-app content

9.19 You must not do any of the following with the Content, and must not permit, suffer or cause any other person to do it:

1. download, record, screen-capture, copy, reproduce or store any Content, other than the temporary caching the App performs so that streaming is not interrupted;
2. use any Content for any public performance, including in or for any gym, studio, facility, workplace, club or other venue, or in any class or group setting;
3. use any Content, including any choreography, routine or music in it, to learn, teach, instruct or lead any fitness class, or to train or coach any other person;
4. modify, adapt, edit, translate, insert or delete any graphics, text, music or other material in any Content, or create any derivative work from it;
5. sell, rent, license, sublicense, broadcast, transmit, publish, post, share or otherwise make any Content available to any other person, including by streaming, screen-sharing or re-transmitting it to a group, or posting it to any social media or other platform;
6. access or attempt to access any Content other than through the App, or circumvent or interfere with any authentication, access control, digital rights management or other security measure applying to the Content;
7. transmit, combine or associate any Content with material that is defamatory, offensive, unlawful, misleading, infringing of any person’s rights or otherwise objectionable;
8. use any Content, or the name, trade mark, logo or branding of FP or of any Content Partner, in any marketing, promotional, advertising or commercial material; or
9. remove, obscure or alter any proprietary notice, watermark, credit or branding in or on any Content.

9.20 You may view Content on a personal device, and cast it to a screen for your own private viewing. You may not play Content to a group, or in a public or workplace setting.

9.21 A breach of clause 9.19 or 9.20, or of clauses 9.27 to 9.30, is a breach of this Agreement for the purposes of clause 8.3(a). A breach of clause 9.19 or 9.20 may also infringe the rights of a Content Partner.

Exercise safety when you use in-app content

9.22 The Content, and the health, fitness, nutrition, sleep and mindfulness information, programs and tracking tools a Digital Wellness Service provides, are general in nature. They are not medical, physiotherapy, psychological, dietary or other professional advice, are not a substitute for that advice, and are not intended to diagnose, treat, cure or prevent any condition.

9.23 You assume the ordinary risks of physical exercise. You should seek medical advice before starting an exercise programme, including one delivered through the Content.

9.24 You acknowledge we have advised you to consult your general practitioner or another appropriately qualified health professional before starting or changing any exercise, nutrition or wellbeing program, including one delivered through a Digital Wellness Service, and particularly if you are pregnant, are recovering from injury or illness, or have any medical condition.

9.25 When you use the Content there is no instructor, trainer or other person present to supervise you, assess your technique or respond if something goes wrong. Before and while using the Content you are responsible for:

1. deciding whether the activity is appropriate for your age, health, fitness level, injuries and experience;
2. making sure your exercise space is safe, clear of hazards and has suitable flooring and clearance, and that any equipment you use is suitable, in good condition and used correctly; and
3. stopping immediately, and seeking medical assistance if you need it, if you feel pain, dizziness, breathlessness, discomfort or distress.

9.26 Meditation, mindfulness and wellbeing Content is intended to support general wellbeing. Neither it nor any Digital Wellness Service is therapy, counselling, or an emergency, crisis or acute care service. If you need urgent help you should contact your general practitioner, an appropriate support service or emergency services.

Using the digital wellness services

9.27 You are entitled to one account for each Digital Wellness Service. That account must be in your own name and may be used only by you.

9.28 You must not sell, transfer, share, sublicense or otherwise make available your access entitlement, login credentials or account to any other person, including another Member of your Membership. Each eligible Member must obtain and use their own access.

9.29 You must keep your login credentials secure. You are responsible for all activity that occurs under your account.

9.30 You must use each Digital Wellness Service only for your own personal, non-commercial use, and in accordance with the Partner Terms.

9.31 You are responsible for your own device, software, internet connection and any data charges you incur in accessing the Content or a Digital Wellness Service. Streaming quality and availability depend on your device and connection.

9.32 Some Digital Wellness Services generate personalised plans, programs or recommendations by automated means, including artificial intelligence, based on information you provide. Those outputs are general in nature, may not be accurate or suitable for you, and we do not review them.

10. Our responsibilities and what we do not promise

10.1 We will use best endeavours to ensure that the offering of Facilities a Member can access through the FP Membership matches the Facilities we have advertised to that Member.

10.2 To the maximum extent permitted by law, including the Australian Consumer Law, we do not warrant in any way, and we expressly exclude any warranty that may otherwise be implied:

1. that the services and Facilities will be available at any particular time or times;
2. as to the condition and repair of the facilities offered at each participating Facility; or
3. as to the services offered by the respective Facilities, or the accuracy of any description of or information about services or Facilities given by any participating Facility.

We have no liability whatsoever in respect of the matters in limbs (b) and (c). Clause 11.14 applies to this clause.

10.3 We are not liable for, and will not refund to you, any separate payment you make directly to a Facility for any reason. Any extra payment you make to a Facility is a separate arrangement between you and the Facility. We do not receive any of those payments.

10.4 We do not warrant that a Contribution will continue for any particular period, or that a Contributor will continue to participate in the Fitness Passport program.

10.5 We are not liable to you for any loss, inconvenience or consequence arising from a Contributor failing to pay its Contribution, except to the extent caused by our own negligence or wilful misconduct.

10.6 To the maximum extent permitted by law, we do not warrant that the App, the Content or any Digital Wellness Service will be available at any particular time, will be free of errors or interruptions, or will be compatible with your device. We do not guarantee that any particular item, title, program, class or category of Content will be available at any time, or will remain available.

11. Liability, guarantees and indemnities

Our liability to you

11.1 To the maximum extent permitted by law, our total liability to you in connection with this Agreement for all damages, losses and causes – whether under contract, tort (including negligence), statute, equity or otherwise – will not exceed the total value of all membership fees you have paid to us under this Agreement in the past 12 months. This clause is subject to clauses 11.3, 11.5 and 11.8.

11.2 To the maximum extent permitted by law, we will not be liable to you – whether under contract, tort (including negligence), statute, equity or otherwise – for any:

1. damages, losses or causes that do not arise naturally according to the usual course of things; or
2. loss of business, loss of use, loss of savings, revenue or profit, or loss or corruption of data.

This clause is subject to clauses 11.3, 11.5 and 11.8.

11.3 You agree we are not liable for the acts or omissions of any Facility, including:

1. cancellation of fitness classes by a participating Facility;
2. amendment to class schedules and hours of operation;
3. termination of individual Facility Access Cards because a Member failed to abide by the terms and conditions of usage of the participating Facility or otherwise;
4. cancellation of a Facility’s involvement with FP;
5. the refusal of any Facility to accept or honour the benefits conferred by the Membership, provided that refusal is not caused by a breach by FP of its agreement with that Facility;
6. injury, death or disability incurred, suffered or contributed to by any Member while using the benefits provided by the Membership;
7. any loss or damage to property, in whole or part, incurred or sustained by a Member while using the benefits of the Membership; and
8. the condition, suitability, quality or safety of any goods or services provided by the participating Facilities.

Releases you give

11.4 You acknowledge the inherent dangers, including personal injury and death, involved in the types of high intensity exercise and other activities you may be involved in at a Facility.

11.5 To the maximum extent permitted by law, you release FP, the employer through whom you hold your Membership (your Employer) and each Facility from any and all actions, suits, proceedings, claims, demands, liabilities, damages, penalties, costs and expenses (Claims), including in relation to injury, illness, loss or damage to person or property, that might arise from you undertaking high intensity exercise and other activities you may be involved in at a Facility.

11.6 The release in clause 11.5 does not apply in respect of a Facility to the extent that a Claim arises due to the negligence or wilful misconduct of that Facility.

11.7 To the fullest extent permitted by law, you release both FP and each Facility from any and all liability that might arise from you having elected not to, or failing to, attend your General Practitioner (Dr) for the purposes in clause 9.4, or from you using any equipment either without instruction, or not strictly in accordance with any instructions provided.

Indemnities you give

11.8 To the maximum extent permitted by law, you indemnify and hold FP and its officers, directors, employees, agents and contractors harmless for any and all Claims arising out of or in connection with:

1. your breach of this Agreement or any Facility terms and conditions;
2. your use of the Membership; and
3. your use of any Facility and their services.

11.9 Your liability under clause 11.8 will be reduced proportionately to the extent that FP directly caused or contributed to any Claim.

11.10 You unconditionally and irrevocably indemnify FP against any loss in connection with or as a consequence of you failing to meet your obligations in this Agreement or any other agreement reached between FP and you.

11.11 You unconditionally and irrevocably indemnify FP against any loss in connection with or as a consequence of:

1. any Secondary Member that has access to the Facilities due to your relationship with FP; or
2. any Minor Member that has access to the Facilities due to your relationship with FP,

failing to meet their obligations, or to perform and observe their obligations, contained in this Agreement, in any rules a Facility imposes, or, in the case of a Secondary Member, in the Secondary Member Terms.

11.12 Your liability under the indemnities in clauses 11.10 to 11.11 will be proportionately reduced to the extent that any claim, loss, liability or damage results from a negligent act or omission of FP.

Guarantees you give

11.13 You unconditionally and irrevocably guarantee to FP the due and punctual observance or performance of all of the obligations by all Secondary Members and all Minor Members that have access to the Facilities due to your relationship with FP – for a Secondary Member, in accordance with the terms of the Secondary Member Terms and any subsequent agreement made between that Secondary Member and FP, and for a Minor Member, in accordance with the terms of this Agreement.

11.14 Nothing in this Agreement limits, excludes or alters your rights as a consumer that cannot be limited or excluded under applicable law, including any non-excludable requirements of the Australian Consumer Law.

The Content

11.15 Clauses 11.1 to 11.3 apply to the Content and to the Digital Wellness Services as if a reference to a Facility included a reference to the Content, to a Content Partner, to a Digital Wellness Service and to a Wellness Partner. This includes the limit on our total liability in clause 11.1.

11.16 To the maximum extent permitted by law, we are not liable for:

1. the unavailability, interruption, suspension, degradation, withdrawal or removal of any Content;
2. the content, accuracy, quality, suitability, safety or fitness for purpose of any Content, program, class, recommendation or other material made available in the App;
3. any act or omission of a Content Partner, including any change to or withdrawal of the material it supplies;
4. any injury, illness, death, disability, or loss of or damage to property, arising out of or in connection with your use of, or reliance on, the Content; or
5. any loss or damage arising from your device, software or internet connection, or from your failure to comply with clauses 9.19 to 9.26.

11.17 To the maximum extent permitted by law, your use of the Content and of any Digital Wellness Service is at your sole risk and you assume that risk. This clause is subject to clauses 11.14 and 11.22.

11.18 To the maximum extent permitted by law, you agree that no Content Partner is liable to you for any special, indirect, incidental, punitive or consequential damages arising out of, relating to or resulting from your use of the Content.

11.19 To the maximum extent permitted by law, you agree that the total liability of each Content Partner arising out of, relating to or resulting from your use of the Content will not exceed the maximum amount of our liability to you under this Agreement.

11.20 We hold the benefit of clauses 9.19, 9.23, 11.17, 11.18 and 11.19 on trust for each Content Partner. Each Content Partner may enforce those clauses to the extent of that benefit.

11.21 Your guarantee and indemnity under clauses 11.8 to 11.13 extend to each Secondary Member’s access to and use of the Content and of the Digital Wellness Services.

11.22 Nothing in this Agreement excludes or limits any liability for death or personal injury to the extent that liability cannot lawfully be excluded or limited.

11.23 To the extent that our liability for failing to comply with a consumer guarantee in respect of the Content, or in respect of our supply of access to the Digital Wellness Services, may be limited, we limit it to supplying the Content or that access again, or paying the cost of having it supplied again.

11.24 Clauses 11.16 to 11.19, 11.23 and 11.26 apply only to the extent permitted by applicable law, and are read subject to clauses 11.14 and 11.22.

11.25 Clauses 5.20, 5.26 and 11.15 to 11.24 survive the end of your access to the Content or to the Digital Wellness Services, and the termination of this Agreement.

The Digital Wellness Services

11.26 To the maximum extent permitted by law, we are not liable for the acts or omissions of any Wellness Partner, including:

1. the unavailability, interruption, suspension, degradation or discontinuation of any Digital Wellness Service;
2. the content, accuracy, quality, suitability, safety or fitness for purpose of any program, plan, recommendation, information or other output of a Digital Wellness Service;
3. any change to the features, content or Partner Terms of a Digital Wellness Service;
4. the suspension, termination or deletion of your account, or of any content or data in it, by a Wellness Partner;
5. any act, omission or failure of a Wellness Partner in relation to personal information you give it, including any unauthorised access to or disclosure of that information; and
6. any injury, illness, death, disability, or loss of or damage to property, arising out of or in connection with your use of, or reliance on, a Digital Wellness Service.

This clause does not limit clause 11.15.

11.27 Where a Wellness Partner supplies goods or services to you, this Agreement does not affect any rights or remedies you have against that Wellness Partner under the Australian Consumer Law.

12. Privacy and confidentiality

Privacy

12.1 We acknowledge and respect the privacy of individuals. We collect, use, hold and disclose personal information in accordance with our Privacy Policy at https://www.fitnesspassport.com.au/privacy-policy/ and the Privacy Act 1988 (Cth), and we will only use your personal information for the purposes for which it is collected. The Privacy Policy says how you can access and correct the personal information we hold about you, and how you can raise concerns about our handling of it. You acknowledge and agree with our Privacy Policy. You are not obliged to give us any information, but if you do not give us the personal information we request we may not be able to deliver our services.

12.2 You consent and agree that we may obtain personal information from you and also from third parties, such as your employer or a Facility.

12.3 We will only disclose information we have about you to the extent specifically required by law, or for the purposes of this Agreement, including in connection with any query or claim. You consent and agree that we may give your personal information to your employer, a Facility or any other third party in accordance with our Privacy Policy. This includes any information relating to an incident or concern about your health and safety, which may include your sensitive information. It also includes telling a Facility which Membership tier you hold, so the Facility can verify what you are entitled to access.

12.4 You consent and agree that a Facility or your Employer may give your personal information to us, which we may use in accordance with our Privacy Policy. This includes any information relating to an incident or concern about your health and safety, which may include your sensitive information.

12.5 If a Contribution applies to your Membership, you consent and agree that we may give each Contributor your name, your employee identifier (if you have given us one), your Fitness Passport Membership identifier and your Membership status. We do so only so the Contributor can verify your eligibility for its Contribution and administer its payment.

12.6 You consent and agree that your employer may tell us about changes in your employment status – including cessation of employment, a change of employment category and extended unpaid leave – so we can administer a Contribution.

12.7 We will not give a Contributor workforce lists, or personal information about people who are not Members.

12.8 You may withdraw a consent in clauses 12.5 and 12.6 by notice in writing to us. If you do, we may not be able to administer a Contribution, and clauses 6.26 to 6.33 will apply.

12.9 You consent and agree that we may collect and use location data from your device to check whether a digital service is available in your location under clause 5.11(c). You can turn location services off in your device settings. If you do, we may not be able to make some digital services available to you.

Security of your information

12.10 We will use reasonable endeavours to keep the account details in your Direct Debit Request confidential. We will make reasonable efforts to keep any information we have about you secure, and to ensure that our employees or agents who have access to information about you do not make any unauthorised use, modification, reproduction or disclosure of it.

12.11 We cannot and do not warrant or guarantee that our systems are fail safe or impermeable to malicious or deliberate attempts to take or destroy confidential information.

12.12 To the fullest extent permitted by law, we exclude all liability arising out of loss or disclosure of your confidential information where we have used reasonable endeavours to protect it.

Personalising the Content

12.13 When you first enter the Content section of the App we will show you a privacy collection notice (the Collection Notice). It explains what personal information we collect in connection with the Content and how we handle it, including any goals you select to personalise your recommendations. Selecting goals is voluntary.

12.14 Some goals relate to matters such as mental health, stress, sleep or recovery. Information about those matters is health information, which is sensitive information under the Privacy Act 1988 (Cth). We collect, use and hold that information only with your express consent, which you give by selecting the relevant goal, and only to personalise the Content we show you and as otherwise described in the Collection Notice. We generate those recommendations by automated means. They are general suggestions, we do not review them for your individual circumstances, and they are not advice about your health. Clauses 9.22 to 9.26 apply to Content we recommend to you in the same way as to any other Content.

12.15 You may withdraw that consent at any time by removing the relevant selections in the App or by contacting us. If you do, we will stop using that information to personalise your recommendations, and we will delete or de-identify it in accordance with our Privacy Policy.

Survival

12.16 This clause 12 survives the termination of this Agreement.

13. Administrative provisions

Assignment

13.1 You must not assign your rights or delegate the performance of your obligations under this Agreement without our prior written consent. Any attempted assignment or delegation without consent will be ineffective.

Notices

13.2 Notices will be in writing and may be given to a party:

1. personally, or by email to the party’s last known email address; or
2. by leaving it at, or posting by pre-paid mail to, the address for that party in clause 13.3, or to an alternate address that a party may notify the other party from time to time.

13.3 The address for a notice under clause 13.2 is:

1. for FP, The Proper Officer, Fitness Passport, Suite 11.01/323 Castlereagh Street, Haymarket NSW 2000, email [email protected]; and
2. for you, the address or email address set out in your Engagement Form.

13.4 Notice is deemed to have been received by a party:

1. when left at that party’s address;
2. if sent by email using the email address provided by the member; or
3. if sent to the member’s workplace facilitator.

13.5 Any notice will be deemed to have been received on the third banking day after posting.

13.6 Unless a later time is specified in it or by a provision of this Agreement, a notice, consent, approval or other communication takes effect from the time it is received.

13.7 To notify us in writing about anything relating to this Agreement, write to us at Fitness Passport, Suite 11.01/323 Castlereagh Street, Haymarket NSW 2000, or email [email protected].

Governing law

13.8 This Agreement is subject to the laws of New South Wales. The parties submit to the exclusive jurisdiction of the Courts of that State.

General

13.9 The rights and obligations of FP under or in respect of this Agreement are not personal to FP, and this Agreement binds each party’s permitted successors, assigns, administrators and substitutes.

13.10 A provision of, or a right created under, this Agreement may not be waived or varied except in writing, signed by the party or parties to be bound.

13.11 If any provision of this Agreement is void, voidable, unenforceable or illegal, it is severed to the extent necessary and the remaining provisions continue in full force.

13.12 This Agreement is the entire agreement between you and us about your Membership. It replaces all earlier agreements, terms and conditions, understandings and communications about your Membership, whether written or oral.

Schedule 1 – Membership types and Membership tiers

Part A – Membership types (who your Membership covers)

A Membership that also has a dependent child aged between 18 and 25 (an Additional Dependent Passport) is a Plus Membership for the purposes of Schedule 4. An Individual Fitness Passport with an Additional Dependent Passport is an Individual Plus Membership. A Family Fitness Passport with an Additional Dependent Passport is a Family Plus Membership.

Part B – Membership tiers (which Facilities and services your Membership reaches)

We agree with each employer which Membership tiers are available to its employees. We publish those tiers, and what each includes, on that employer’s page on our website, and we may update that page from time to time. Clause 4.26 says where to find the Facilities and services available under each tier. Clause 2.12 applies to a tier available only to employees of nominated employers, and clause 6.22 applies to any minimum period before you may change out of a tier.

Schedule 2 – Member classes, eligibility and age requirements

Part A – Member classes

A Primary Member must be at least 16 years old.

Part B – Immediate family members under a Family Fitness Passport

For the purposes of clause 2.3 and Schedule 1, immediate family members is limited to:

Only one partner or spouse may be covered under a Family Fitness Passport at any time.

Any child of the Primary Member, whether or not a dependant, aged over 18 years is not covered by a Family Fitness Passport.

The rights of each dependent child to access the Facilities under a Family Fitness Passport cease on the day that child turns 18 years.

“Partners” and “Dependants” do not include siblings, parents, flatmates, extended family members or friends.

If a family member is temporarily residing at the Primary Member’s residence for a duration of 3 months or less, they are not eligible for Fitness Passport. Family members must permanently reside at the same residence as the Primary Member.

Part C – Additional Dependent Passport

The rights of the Secondary Member to access the Facilities under an Additional Dependent Passport cease on the earlier of:

• the day the Secondary Member turns 25 years;
• the day the Secondary Member stops residing with the Primary Member; or
• the day the Secondary Member ceases being financially dependent on the Primary Member, in the opinion of FP.

The Primary Member must tell us in writing as soon as reasonably possible if any of these happens. Membership fees continue to accrue and are payable until we are notified.

Part D – Evidence we may ask you for

Part E – Age requirements

Schedule 3 – Fees and charges

This Schedule sets out the fees and charges payable to us under this Agreement. A Facility may also charge you fees that we do not set and this Agreement does not govern – see clauses 3.24, 3.26 and 4.10.

Schedule 4 – Cancellation and downgrade charges

Part A – Cancellation charges

Plus Membership means your Membership that also has a dependent child aged between 18 and 25 (an Additional Dependent Passport).

Part B – Downgrade charges

A downgrade fee applies where you change to a lower Membership type within the first 12 months. It is determined by the date of the downgrade in relation to the date of your first fee payment under clause 3.3, on the same basis as Part A. The fee depends on the Membership type you are leaving.

No downgrade fee applies after the initial 12 month period (clause 6.3), or where clause 6.2(a) or 6.2(b) applies.