MEMORANDUM OF AGREEMENT
ENTERED BY AND BETWEEN
BODY ACTION HEALTH CLUBS (PTY) LTD
WHEREAS BDA Gym wishes to provide the Member with Gym Membership;
WHEREAS the Member is desirous of obtaining Gym Membership;
WHEREAS the parties wish to formalize the terms and conditions of their agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS;
1.1 "The Gym": means Body Action Health Clubs (Pty) Ltd, registration number 2008/021104/07, situated at 17 Bradford Road, Bedfordview, 2007.
1.2 "The Member": means the party to this contract with full names, surname, and identity number as provided to the Gym and / or the sales agent employed by the Gym, by the Member, in the Application form for his / her Membership to the Gym.
1.3 "The Parties": means the Gym and the Member.
1.4 "Membership Fees": means the monies payable by the Member to the Gym as remuneration to the Gym for supplying the Member with a Membership to the Gym for the period as agreed upon between the parties in the Application form.
1.5 "The Application Form": means the form, completed by the Gym's employee, wherein the Member supplies his /her personal details and wherein the sum and method of payment of the member's membership fees to the Gym are set out.
1.6 "The Contract": means the membership Application form read with this document wherein the terms and conditions upon which the parties hereto contract, are set out. In the event of an irreconcilable conflict between the Application Form and this document, the terms of this document will prevail.
1.7 "The Operating hours": means 05h00 to 21h00 on Mondays to Thursdays, 05h00 to 20h00 on Fridays, 06h00 to 14h00 on Saturdays and Sundays and 06h00 to 14h00 on public holidays.
2. AGREEMENT OF SERVICES TO BE RENDERED BY THE GYM, MEMBERSHIP FEES AND CONDITIONS
2.1 The Gym agrees to provide the Member with Membership to the Gym for the period and upon payment of the Membership fees as agreed between the parties in the Application form.
2.2 The Gym shall provide the Member with an access to the Gym if the complete fee is paid by the Member, alternatively, if payment of the Membership fee, on a monthly, or any other basis, has been agreed upon by the parties and all other requirements, (such as the taking of a photograph of the member), as stipulated to the Member, by the Gym's sales agent, has been met.
2.3 Upon payment of all Membership fees and any other fees payable, as stated on the Members application form, the Member shall be entitled to unrestricted access and use of all the Gym's equipment and facilities and the right to participate in all events and activities of the Gym, subject to any special terms and conditions applicable thereto such events and activities.
2.4 It is a prerequisite to Gym membership that the Member is the holder of a valid South African identity document or current passport and should a Member misrepresent and / or should the Gym discover at a later date that the Member is not the holder of a valid South African identity document or current passport, such may be grounds for cancellation of the Members Gym membership, in the sole and exclusive discretion of the Gym.
2.5 The Gym shall only contract and supply a membership to children over the age of 13 (thirteen) years of age, who shall enter into such contract assisted by their parent or a guardian.
2.6 All memberships shall be subject to an annual increase of 10% (ten percent).
2.7 Members who effect payment of the membership fees by way of debit order specifically agree that a double deduction of the normal monthly debit order shall take place every year between the 25th November and the 15th December for the duration of their contract.
2.8 The said double debiting of fees in December shall take place regardless of the date on which the Member contracted with the Gym.
2.9 The member hereby authorises the Gym to re-transmit a debit order at any time of the month if it rejects at the bank for any reason whatsoever.
2.10 A debit order may be deducted a few days later than the selected date if the specified day of month falls over a weekend or public holiday or if any technical difficulties i.e. bank/computer glitches are experienced.
2.11 The Member shall be liable for all bank charges, including but not limited to bank charges brought about by rejection of the Members monthly debit order.
2.12 The Gym reserves the right to charge administration fees, for a reasonable sum, to be calculated in the sole discretion of the Gym, in the case of rejected debit orders or late payments or should the Gym's administrations staff be obliged to collect overdue payment from Members and / or re-submit debit orders for payment.
2.13 Notice of all cancellations of contracts must be performed by the member in writing via email.
2.14 An e-mail will be sent to the member by the Gym as proof of cancellation and the onus is on the Member to safeguard this, until cancellation of the contract has been accepted.
2.15 Should the Member cancel his / her membership, a 38% (thirty eight percent) cancellation fee is payable to the Gym, to be calculated by the Gym, which sum shall also be regarded as prima facie proof of the correctness thereof in any legal litigation matter. The Member specifically agrees that such a cancellation fee is fair and reasonable.
2.16 Should a Member cancel his / her membership or default on payment of his membership, the parties agree that the Gym obtains the right to suspend the membership and put such Member's membership on a waiting list.
2.17 A Member may not under any circumstances transfer or cede his/her membership to any other party.
2.18 The Member hereby agrees that this is a contract and whether the Member uses the facility or not he/she still has to pay the monthly fees.
2.19 Any promises / representations made by a staff member of the Gym regarding the supplying of Gym membership quotations to Members shall be null and void unless reduced into writing and authorised by the signature of a senior Member of staff.
2.20 The Gym shall sell only a certain number of memberships, after which prospective Members shall have their details placed on a waiting list until memberships become available, which eventually shall occur in the sole and absolute discretion of the Gym.
2.21 The Member agrees that the Gym may send emails from time to time containing information regarding the activities, changes, and useful information regarding the Gym.
2.22 The parties hereto record that the Member supplies the Gym with the right to perform credit checks on the Member with all major credit bureaus.
2.23 In the event that the Gym institutes legal proceedings against the member as a result of the breach of the terms of this agreement, the Gym shall be entitled to recover from the member all legal costs incurred on the attorney client scale.
2.24 If the Gym needs to relocate the business anywhere in Bedfordview, the member will have no claim against the company.
2.25 BDA GYM reserves the right to transmit a debit order more than once in any month at a reduced price to recover unpaid debit orders.
3. USE OF THE GYM'S FACILITIES BY THE MEMBER AND LIABILITY FOR DAMAGE
3.1 The rules of the Gym not written in this contract (as may be amended from time to time in the sole discretion of the Gym) will be displayed in various places on the Gym’s website, walls and/or mirrors inside and outside the gym and are deemed incorporated herein by reference.
3.2 The Member agrees to be bound by these rules when making use of the Gym's facilities and non-compliance may lead to cancellation of the contract, in the sole and exclusive discretion of the Gym.
3.3 The Member shall not walk around the Gym without proper footwear.
3.4 If a Member is unsure how an exercise machine works, the onus is upon the Member to ask a qualified staff Member for assistance and if such staff Member is not currently present, use of the machine by the Member must not take place until instructed on the proper use thereof by a qualified staff Member. The Member indemnifies the Gym in circumstances where the Member is in breach of this clause.
3.5 The Member shall make use of the Gym equipment and facilities in such a fashion that such equipment and facilities are not abused, destroyed, defaced, or stolen.
3.6 A Member shall be liable for intentional and / or negligent loss or damage to the Gym's equipment, fixtures, and fittings.
3.7 Upon damage being inflicted by the Member to any such Gym equipment furniture and fittings, the Gym shall provide the Member with the replacement / repair costs quote, which quote shall be prima facie proof of the correctness and accuracy of the content of such document in any litigation resulting from such an act by the Member, leading to the inflicting of damage.
3.8 When using weights, the Member undertakes to return the weights to their proper and correct location after use.
3.9 Members shall refrain from throwing weights unnecessarily to the floor between weight lifting sets or after use.
3.10 A Member may not remove weights out of a specific training area to be used in another area.
3.11 No Member may allow a non-Member entrance to the Gym and use of the Gym facilities by making use of the Members details, including access details. Any contravention of this clause shall constitute conduct that may lead to cancellation of the Members membership, in the sole and exclusive discretion of the Gym.
3.12 The Gym may terminate a Member’s membership without any loss of any fees, if the Member is vandalising, acting in a disorderly manner, or breaching the rules of the club.
3.13 The Gym has the right to photograph and/or video tape any Member via CCTV electronic operating devices for any security purposes.
3.14 The Member expressly consents that the Gym may furthermore photograph and/or video tape himself / herself and/or the Member’s minor child or children for the use in the Gym's print, online and video-based marketing materials, as well as any other publications. The Member also hereby releases and hold harmless the Gym from any reasonable expectation of privacy or confidentiality for the Member and/or for the Member’s minor child and children associated with the images specified above.
3.15 The Gym reserves its right to amend its operating hours from time to time by notifying the Members in advance via visible notice boards at the Gym’s premises and/or any forms of communication.
4.1 Parking in the parking area of the Gym shall be for a period of 2 (two) hours only.
4.2 A Member that parks for longer than this time shall be charged a parking fee of R10.00 (ten rand) per hour.
4.3 The Member acknowledges that he / she parks his / her vehicle in the Gym's parking area at his / her sole risk and indemnifies the Gym against any and all loss or theft of the vehicle or theft of the vehicle's contents, or damage that the vehicle may sustain whilst parked in the Gym's parking area.
5. UNACCEPTABLE CONDUCT
5.1 Any Member provoking and / or initiating a verbal or physical attack upon another Member, employee, or any person on the Gym's premises shall be guilty of unacceptable conduct, which is grounds for cancellation of his / her contract.
5.2 What constitutes unacceptable conduct in this regard shall be decided in the sole discretion of the Gym.
6. BATHROOM HYGIENE AND ETIQUETTE
6.1 When applying body lotion to himself / herself in the cloakroom areas, the Member shall at all stages utilize a towel to cover his / her private parts and no Member shall display his / her private parts to other Members, whilst standing in front of mirrors or whilst applying body lotion to himself / herself.
7.1 The Member undertakes to always keep his / her child/ren or any children that accompany the member, in his / her line of sight and in his / her immediate vicinity, whilst in the Gym. The Member acknowledges that he / she is aware that the Gym does not allow children to play or run around the Gym facility or to play on the equipment.
7.2 The Member acknowledges that he / she brings a child into the Gym, solely at his/her own risk and indemnifies the Gym against any loss or injury suffered as a result of any reason what so ever by the child/ren.
7.3 The Member agrees that breaches of this clause may be viewed as material by the owner of the Gym and sufficient cause for cancellation of the agreement.
8. WARRANTY BY THE MEMBER REGARDING HIS / HER HEALTH
8.1 The Member warrants that he/ she is in good mental and physical health and able to safely use the Gym's equipment and facilities and participate in the Gym's activities.
8.2 The Member further warrants that he / she has no pre-existing health risks, including, but not limited to the following:
8.2.1 Heart condition;
8.2.2 No pains in the chest when performing physical activities;
8.2.3 Chest pains when not performing physical activities;
8.2.4 Loss of balance due to dizziness;
8.2.6 Rheumatoid fever as a child or rheumatoid heart disease;
8.2.7 Uncontrolled high blood pressure;
8.2.8 Uncontrolled high cholesterol;
8.2.10 Asthma or any other respiratory condition that affects the Member's participation in physical activities;
8.2.11 Uncontrolled epilepsy;
8.2.12 Surgery within the preceding six months, prior to joining the Gym;
8.2.13 Any other factor which may affect the Member's participation in physical activities.
8.3 The Member warrants that he / she has consulted with his / her Doctor and obtained written medical clearance to become physically active at this current time and in his / her current state of health, should any pre-existing medical risk be present and / or should any of the health aspects as listed above be present.
9. PERSONAL TRAINERS
9.1 The party's record that personal trainers active in the Gym are not employees but independent contractors who are available to provide personal fitness instruction to Members at a remuneration to be agreed upon between the Member and the personal trainer directly.
9.2 The Member acknowledges that and records that the Gym is indemnified and excluded from any and all liabilities of whatever nature what so ever resulting from the breach of the agreement entered into by and between the Member and the personal trainer.
9.3 The Member records that the onus rests on him / her solely to ensure that any personal trainer that he / she enters into a contract with, is properly qualified and certified to render onsite personal fitness instruction to the Member.
10. CANCELLATION OF CONTRACT
10.1 If the Member fails to make payment of Membership fees, maintenance fees, administration fees, or any other fees due, or in the event of other material breaches the agreement, the Gym has the right, apart from all its other rights, to immediately cancel the agreement, deny the Member access to the premises of the Gym, and to retain all fees paid by the Member, prior to cancellation of the contract.
10.2 Sufficient cause for cancellation of the contract shall be in the Gym's sole and exclusive discretion.
10.3 What constitutes material breaches of the agreement shall be in Gym's sole and exclusive discretion.
11.1 By signing the agreement, the Member further acknowledges that he/ she shall, when entering the Gym, does so at his / her own risk and solely assumes and consents to the risk of physical and medical injuries, death, damages and loss, which he/ she may sustain as a result of his/ her participation in any or all activities arising from, or in connection with, or in any way associated with, the use of the Gym's equipment and facilities and participation in the Gym's activities.
11.2 The Member is further reminded and made aware that use of the Gym's equipment and facilities and participation in the Gym's activities may result in injury, death, or damage to the user and the Member accepts and assumes such risk.
12.1 The Member elects as his / her primary residential address the address supplied by the Member on the Application Form and the Gym elects the following address: 17 Bradford Road, Bedfordview, 2007.
12.2 Any notice to a party at the address chosen as its preferred address as indicated shall be deemed as received, after 4 (four) days of same having been sent.
13. FULL AND COMPLETE AGREEMENT, VARIATION
13.1 This agreement, read with the member Application Form wherein the Member supplied, inter alia his / her full names and identity number, constitutes the entire agreement between the Parties and any provisions not contained in this agreement shall not be of any force or effect between the Parties.
13.2 Any variation of the agreement, unless reduced into writing and undersigned by both parties and authorised by The Owner, shall be of no force or effect.
13.3 Headings/Captions used in this agreement are for reference purposes only and does not have any effect on the interpretation of the agreement.
13.4 If any of the provisions of this agreement are found to be invalid, unlawful, or unenforceable such terms will be severed from the remaining terms, which will continue to be valid and enforceable.
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