Terms & Conditions
Membership Service Agreement
1. Term of Membership
1.1. The term of Membership shall be for an indefinite period commencing on the Membership Commencement date stipulated in the Membership Agreement (“the Term”).
1.2. The Member’s Membership shall continue and the Member will continue to be charged the Membership Fee monthly in advance until the Member terminates their Membership with not less than 30 days written notice to Xcel Fitness NZ Ltd.
2. Cooling Off Period
2.1. The Member shall have a period of 48 hours from the time of signing the Membership Agreement (“Cooling off Period”) to terminate this Contract by written notice to Xcel Fitness NZ Ltd.
2.2. If the Contract is terminated by the Member within the Cooling off Period, Xcel Fitness NZ Ltd will refund all fees charged to the Member except for the Customer Set up Fee and the costs of any fitness services already supplied by Xcel Fitness NZ Ltd prior to date of termination.
2.3. If the Member purports to terminate the Contract after the expiry of the Cooling off Period, in other method other than as set out in Clause 8, the Member will be subject to the provisions of clause 9.
3. Payment of Fees
3.1. The Member shall pay the Membership Fees and other fees:
a) In the amounts and frequency set out in the Payment Option details in the Membership Agreement;
b) Using the direct debit payment method.
3.2. The Member:
a) Must sign an Direct Debit authority in favour of Xcel Fitness NZ Ltd from an approved credit card or bank account in the amounts and frequency set out in the Membership Details in the Membership Agreement,
b) Must ensure that the nominated credit card or bank account is able to accept direct debits and have sufficient funds available to pay for the debit date,
c) acknowledges that the contract that the Member enters into with the direct debit service provider is a separate contract to this Contract and that any problems or issues that the Member has with the direct debit service should be raised with the direct debit service provider, not Xcel Fitness NZ Ltd; and
d) must keep the direct debit authority in place until 30 days after the Member has given Xcel Fitness NZ Ltd written notice to terminate the Member’s membership; and
e) acknowledges that Xcel Fitness NZ Ltd shall continue to debit Membership Fees under the direct debit authority until the Member or Xcel Fitness NZ Ltd cancels the direct debit arrangement with the Member’s bank or credit provider.
3.3. If any payment by direct debit is rejected by Xcel Fitness NZ Ltd’s bank:
a) Xcel Fitness NZ Ltd will notify the Member of this fact;
b) The rejected payments remain due and payable by the Member;
c) An additional fee will be payable for each rejected payment (please speak to management for fee amount), and
d) The Member’s membership benefits will be suspended until such time that the payment has been made.
e) We may send it to a debt collection agency. If we do, you must pay all outstanding monies owed, reasonable collection costs, including any actual legal costs.
3.4. If the Member closes the credit card account or bank account which is subject to the direct debit authority, it is the Member’s responsibility to provide Xcel Fitness NZ Ltd with a replacement direct debit authority over another approved credit card or bank account. Failure to provide a replacement direct debit authority will constitute a breach of this Contract and the provisions of clause 9 will apply.
3.5. If the Member fails to pay any amounts owing under this Contract on the due date for payment and this amount remains outstanding for more than 2 business days, Xcel Fitness NZ Ltd will be entitled to charge interest on the amount owing at 12% per annum calculated daily until the amount owing is paid in full.
3.6. Xcel Fitness NZ Ltd reserves the right to increase fees payable by members for the use of its facilities. Xcel Fitness NZ Ltd agrees to make reasonable endeavours to provide the member with written notice of the changes at the most current residential or email address provided by the Member. The changes will be effective 30 days from the date of the Notice. After a 30-day period, the member authorises Xcel Fitness NZ Ltd and the direct debit company to debit the new amount from the member’s account.
4. Membership Benefits
4.1. During the term of the Member’s Membership, the Member shall be entitled to access to the gym and use of the fitness equipment at Xcel Fitness NZ Ltd’s premises,
4.2. The Member acknowledges that:
a) The Member’s access to the gym and the fitness equipment is not exclusive;
b) The gym and the fitness equipment must be shared with the other members of Xcel Fitness NZ Ltd;
c) Xcel Fitness NZ Ltd cannot give any guarantee or warranty that the Member will have access to fitness equipment;
d) Xcel Fitness NZ Ltd purchases or leases the equipment from a third party and therefore does not manufacture any of the fitness equipment or other equipment used in the gym, and
e) Opening hours are subject to change without notice;
f) Xcel Fitness NZ Ltd may at times be operated as an unstaffed facility.
4.3. The Member acknowledges that Membership does not include access to personal trainers. Services of personal trainers can be obtained via a separate contract with Xcel Fitness NZ Ltd or other personal trainers who have a rental agreement with Xcel Fitness NZ Ltd and any fees payable for these services will be in addition to the fees payable under this Contract.
4.4. The Member acknowledges that at times, Xcel Fitness NZ Ltd operates as an unstaffed fitness facility. Access to, and the use of the facilities, is permitted by the Member during unstaffed hours. Members enter and use the facilities entirely at their own risk during these periods and covenant that they will engage in proper use of the equipment, and safe conduct during the unstaffed hours.
4.5. The Member agrees to participate in a health and safety Induction and brief overview of equipment use and safety. Further training available on request.
5. Member’s Obligations as Member:
5.1. The Member agrees to:
a) Abide by the rules and conditions as set by Xcel Fitness NZ Ltd regarding conduct at the gym and use of the fitness equipment – which may be displayed on signage at Xcel Fitness NZ Ltd’s premises;
b) Wear appropriate sportswear while using the facilities; Members must at all times while using the equipment or fitness area, wear appropriate footwear. Bare chests are not permitted.
c) Obey instructions given by the staff of Xcel Fitness NZ Ltd concerning the use of the fitness equipment,
d) Not to do any act or engage in any activity which could cause damage to the gym, the fitness equipment or any item of property of Xcel Fitness NZ Ltd;
e) Not to do any act or engage in any activity which causes or threatens harm against staff or other members of Xcel Fitness NZ Ltd;
f) Not to do any act or engage in any activity which constitutes sexual harassment against staff or other members of Xcel Fitness NZ Ltd;
g) Not to consume or possess any alcohol or intoxicating substance or illicit substance on Xcel Fitness NZ Ltd’s premises or operate fitness equipment while under the influence of alcohol or an intoxicating substance or illicit substance;
h) Provide Xcel Fitness NZ Ltd with full and ongoing disclosure of any physical or medical conditions;
i) not to attend Xcel Fitness NZ Ltd’s premises while the Member suffers from any illness, sickness or disease which is contagious;
5.2. If the Member causes any damage to the gym, the fitness equipment or any item of property of Xcel Fitness NZ Ltd, Xcel Fitness NZ Ltd shall be entitled to charge the Member for costs of repairing the damaged items or, if repair is not possible, the replacement of the damaged items.
5.3. The Member warrants that s/he is in good physical condition and has had the necessary medical advice prior to embarking on a fitness program or exercise routine. If suffering from an illness, injury or long term medical condition, or has not visited a fitness facility or gym in excess of 6 months as a result of an illness or injury, the Member will provide a Medical Certificate from their Doctor permitting membership of a fitness facility.
5.4. Breach of any of the terms set out in Clause 5.1 – 5.3 will result in a warning from a member of Xcel Fitness NZ Ltd Staff. Further failure to abide by the rules and conditions will result in a cancellation of membership.
6. Suspension of Membership:
6.1. The Member may request a suspension to their membership for up to 2 months per calendar year during which the Member will not be charged for the weekly membership fee.
6.2. Suspension requests are accepted only by filling out a request form in person and will only be for a minimum of 7 days.
6.3. During the period of suspension of Membership, the facilities will not be available to the member for use.
6.4. The member shall pay 50% of their normal weekly membership for any periods exceeding the maximum 2 months.
7. Transfer of Membership by Member:
7.1. Membership of Xcel Fitness NZ Ltd is not transferable by the Member
7.2. Membership of Xcel Fitness NZ Ltd cannot be transferrable between persons
8.1. Xcel Fitness NZ Ltd reserves the right to transfer, assign, sell or novate your membership including this Agreement, to another provider of the gym service provided that the facilities provided by the new owner of your contract are consummate with your existing membership and are provided on similar terms within a 3km radius of the Gym location you currently use.
9. Termination of Membership:
9.1. The Member may terminate this Contract by providing 30 days written Notice to a Xcel Fitness NZ Ltd manager.
9.2. Membership fees will be due and payable for the 30-day Notice period.
9.3. Early Termination Fee: If you have agreed to a Minimum Term of 6 or 12 months and you terminate this agreement prior to the end of
that Minimum Term you must pay to the Club (in one lump sum), liquidated damages (in the form of an early termination fee) equal to amount being
the lesser of:
(a) Early termination fee – $200. The Early Termination Fee
applies because we have priced your membership on the
basis that you will not terminate your membership prior to
the end of your agreed Minimum Term.
(b) amount that you would have paid for the remainder of the Minimum Term had you not terminated this agreement.
10. Default by Member
10.1. The Member will breach this Contract if:
a) The Member fails to pay any amounts owing under this Contract on the due date for payment and the amount remains unpaid for a period of 7 days
b) The direct debit authority is cancelled and not replaced within 7 days;
c) The Member is or becomes bankrupt; or
d) The Member terminates this contract other than in accordance with clause 1.2 and clause 8;
e) The Member breaches any of their obligations under clause 5; and
f) The Member breaches any other term or condition of this Contract and this breach is not rectified within 14 days.
10.2. If the Member breaches the Contract, Xcel Fitness NZ Ltd may do any one or more of the following:
a) Refuse entry to Xcel Fitness NZ Ltd’s premises and suspend any or all of the Member’s membership benefits for a period of up to 14 days;
b) Terminate this Contract by serving written notice on the Member.
c) Send it to a debt collection agency for any monies owing. If we do, you must pay all outstanding membership fees, reasonable collection costs, including any actual legal costs.
11. Assumption of Risk for Personal Injuries:
11.1. The Member warrants to Xcel Fitness NZ Ltd that the Member is medically sound to undertake a normal course of exercise;
11.2. The Member acknowledges and agrees that:
a) The Member’s use of Xcel Fitness NZ Ltd’s facilities and the fitness equipment provided is at the Member’s sole risk and responsibility and that the Member is aware that exercise is physically demanding and participation in some activities may result in injuries,
b) Xcel Fitness NZ Ltd is not liable to the Member for any injuries that the Member sustains while using Xcel Fitness NZ Ltd’s facilities and the fitness equipment provided unless that injury is caused by the gross negligence of Xcel Fitness NZ Ltd.
11.3. Xcel Fitness NZ Ltd is not liable to the Member for any injuries sustained by the Member while the Member is under the supervision of a personal trainer who is not an employee of Xcel Fitness NZ Ltd. If the Member engages their own private personal trainer, any claims for injuries sustained under the supervision of that personal trainer should be brought against that personal trainer.
12. Assumption of Risk for Personal Items:
12.1. Xcel Fitness NZ Ltd will not be liable for the loss, theft or damage occurring to the personal items of the Member. Personal items are left and/or stored on the premises at the member’s own risk. Vehicles parked in or around the vicinity of Xcel Fitness NZ Ltd are parked at the Member’s own risk. Xcel Fitness NZ Ltd will not be liable for the theft or damage to the vehicle or its contents.
13.1. The Member acknowledges that during the process of entering into the Contract and during the term of the Contract Xcel Fitness NZ Ltd will obtain access to personal information about the Member, such as information relating to the Member’s health and financial position, and that Xcel Fitness NZ Ltd may use that information for the promotion of their own services but will not release information to third parties.
13.2. The Member further acknowledges that Xcel Fitness NZ Ltd Studio use video surveillance equipment to monitor the gym area (specifically the entry floor area) for safety purposes, and acknowledges that by entering the facility, the Member will be subject to video surveillance in the entry floor area.
14. Governing Law:
14.1. This Agreement constitutes the entire agreement between the parties, and it replaces all in the negotiations, representations, warranties, understanding and agreements, whether oral or written. The Agreement shall not be varied unless it varied in writing, and signed by both parties. This Agreement and any rights, duties and obligation as between the parties to this Agreement shall be governed by and interpreted solely in accordance with the laws of New Zealand.
15.1. If any part of this Contract is or becomes illegal, void or unenforceable, this does not invalidate the rest of this Contract.
16. Access Tag System:
16.1. Members are required to use their own Access Tag to enter and leave Xcel Fitness NZ Ltd. Xcel Fitness NZ Ltd reserves the right to sanction members for misuse of the Access Tag system,
16.2. Access Tags and memberships are non-transferrable between members, Xcel Fitness NZ Ltd reserves the right to suspend/ cancel memberships if required,
16.3. Lost/misplaced Access Tags will incur a fee which is determined by Xcel Fitness NZ Ltd Management
16.4. Access Tags are to be used by members only. Access Tags are not to be shared with non members at any point. In the event a member brings a non member into the club, the member will be charged a fee of $150 per unauthorized person to be paid immediately or if approved at their next billing cycle.
17. Changes To Terms & Conditions
17.1. Xcel Fitness NZ Ltd may revise these Terms & Conditions at any time without notice. Any disputes must be raised 48 hours following the date on which changes to these Terms & Conditions are published on www.xcelfitness.co.nz, failure to do this shall constitute your acceptance of all such changes. You expressly agree that Xcel Fitness NZ Ltd shall have no obligation to provide you with any notice of any changes, and you hereby expressly waive any right you may have to receive notice of any changes to these Terms & Conditions.
18. Club Rules
18.1. You agree to comply with the Club Rules which are available at www.xcelfitness.co.nz. If you carry out any activity which we consider is offensive or a danger to you or any other person, we reserve the right to require you to leave the club immediately.