Services

Provision of Services: In consideration for your payment of the Fees, we agree to provide the Services in accordance with these Terms, whether ourselves or through our employees, subcontractors or agents (Personnel). 

Screening Process: You acknowledge and agree that the provision of some, or all, of the Services may be subject to availability or a screening process which you will be required to fulfil. We reserve the right to refrain from providing you the Services if you fail to fulfil the requirements of the screening process.

Changes to this Agreement

Changes by you: If you wish to change your Membership (for example, by upgrading to a different Membership type or acquiring Additional Services), you must provide notice to us in person or over the phone that you wish to vary your Membership at least 5 Business Days before the end of the current billing cycle. If you vary your Membership and the Fees increase, the increased Fees will apply at the start of your next billing cycle, and you will have access to the additional Membership features at the start of your next billing cycle. 

Changes by us: We may need to change these Terms, our Privacy Policy, our Waiver, the Services or the Fees from time to time including by introducing other membership services or additional services (Changes). If we wish to make a Change, we will provide you with 30 days’ notice of the change. By continuing to use the Services after the notice or 30 days after notification (whichever date is earlier), you agree to the Change. If you do not agree to the Change you should cease using the Services and advise us in writing.

Cancellation by you: If we give you notice of any Change and you wish to cancel our Services, you must notify us of this before the Change comes into effect and we will either remedy your concerns or you may terminate these Terms without any liability to us (including an obligation to pay a Cancellation Fee). If you have paid upfront for recurring access to any of the Services (excluding one-time purchases) and you would like to cancel them, we will issue you a pro-rata refund for such Services. 

Your obligations

Guardian: If you are accepting these Terms as a parent or legal guardian of the Participant, you warrant and agree that you have the required authority to consent on behalf of the Participant. As a Guardian, you agree that you are responsible for compliance with the Agreement by the Participant and take responsibility for the Fees.

Fees: You agree to pay our Fees in accordance with our Payment Terms.

Validity: Memberships and Additional Services are valid for the corresponding use time frame listed relevant to your Membership type and /or the Additional Services (as available on our Website). You forfeit any Services that you do not use within the availability of use time frame. 

Bookings: We will provide you with our schedule of available Services and you may request to book a Service. All requests to reschedule or cancel a Booking must be made by the Website, by email or calling us within the relevant timeframe as set out on the Website and will be subject to availability. You may request to book Services as part of a multi pass pack, casual class or Membership after you pay the applicable Fee. Once you choose an available Service session, we will send you confirmation of the session and your request will convert to a booking (Booking). In order to access and make use of the Services, you may need to create an account using an email address and password on our Site.

Suspensions: As set out on the Website, you may be entitled to pause your use of our Services for the maximum period applicable to the type of Service. If you wish to suspend your use of our Services (for example, due to injury, illness, business commitments or travel) and the Service type allows for suspension, you must provide the required notice to us in person or over the phone or by email. You must also provide us with any information relevant to the suspension that we reasonably request to support the reason for your suspension. If you suspend your Membership and the Fees increase for the Membership type, we will advise you in writing and subject to clause 6.2, the increased Fees will apply when your suspension ends.

Cancellations: As set out on the Website and as per clause 7.3, you are entitled to cancel your use of our Services at any time but a Cancellation Fee may be payable.

Rules of Conduct: You represent, warrant and agree:

that you will comply with our (and our Personnel’s) reasonable requests or requirements and comply with these requests in a timely manner;

that the information you provide to us is true, correct and complete;

to observe any applicable rules or conditions that are introduced or otherwise communicated by us, from time to time;

to refrain from causing disruption or risk of injury to other members or other people using our Services;

to sign in at the reception desk before participating in any Services;

to complete the relevant Safety Inductions and Site Orientation before participating in any Services;

to not engage in reckless, foolish or negligent behaviour, or any other behaviour, which may, in our reasonable opinion, create a risk of injury to you or a third party;

not be under the influence of alcohol or non-prescription drugs when in premises or when participating in the Services;

to respect all Personnel, fellow members, equipment and facilities and ensure you leave equipment as you found it;

to keep any belongings and valuables you bring into our premises safe;

to wear suitable clothing at all times when using the Services;

that you will remain solely responsible for all and any activities you undertake through the use of the Services;

that you will not use our Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health or safety or that of others;

that where you are aware of or become aware of, any physical or medical conditions that prevent you from participating in our Services, you will inform us and either not participate the Services or receive consent from a medical professional to participate in the Services; 

that any information, advice, material, work and services (including the Services) provided by us under these Terms does not constitute medical advice; and

that if you are provided with an access card to access our premises and enjoy the Services (Access Card), this Access Card remains our property, and you agree to pay our costs of providing you with a replacement if your Access Card is lost or stolen.

Memberships

Details of the Services, Membership Type and Additional Services, including inclusions, limitations, fees and billing cycles (for recurring Membership Types) are set out in the Membership Details.

Minimum Period: Your Membership may be subject to a Minimum Period, as set out in the Membership Details. You will not be able to terminate your Membership during the Membership Period.

Additional Membership Conditions

Suspension of Memberships

This section only applies where we allow you to suspend your Membership in accordance with your Membership Type (e.g. Month to Month Membership).

At our sole discretion, we may allow you to suspend your Membership for a limited period. Where you wish to suspend your Membership, you must contact us via email at climbthenest@gmail.com or phone at least 5 days prior to the end of your current billing cycle. If we approve your request, your Membership will be suspended for the amount of time as agreed between the Parties in writing (Suspension Period).

You acknowledge and agree that:

the minimum Suspension Period is 2 weeks;

the maximum Suspension Period is 1 month (depending on membership type); and the minimum period between suspensions of your Membership is 1 month.

Additional Conditions

You are strictly prohibited from allowing entry to any other person into our facility. If you are found to be in violation of this obligation, we may charge you, and you are liable to pay, a $25 fee. You agree that this fee is reasonable, proportionate and a genuine pre-estimate of the loss and damage that we may suffer as a result of such unauthorised entry. This clause does not limit or exclude any other rights or remedies available to us under this Agreement or at law.

You agree to comply with our Rules and Safety guidelines, Code of Conduct, and Code of Practice at all times.

We may suspend your access to our Services where we reasonably believe you have violated the terms of our Rules and Safety guidelines, Code of Conduct, and Code of Practice, including where we believe there has been any unauthorised access to or use of our Services. If we suspend your access to our Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Membership and your access to our Services will end.

Medical Conditions

Medical Conditions and Pregnancy: You are required to disclose any medical conditions that may affect your ability to safely use our facilities. This includes, but is not limited to, pregnancy, cardiovascular conditions, high/low blood pressure, anaphylaxis/allergies, diabetes, recent surgeries or injuries, or any other condition that may pose a risk to you or others during physical activity. You agree to promptly inform us of any changes in your medical condition that may affect your ability to safely use our facilities. 

If you are pregnant, have any medical conditions as listed in clause 5.1 or have any other significant medical condition/s, you may be required to provide medical clearance from a qualified healthcare professional in order to use our Services. We reserve the right to deny access to our facilities if we reasonably believe that your medical condition poses a significant risk to your safety or the safety of others. By using our facilities, you represent, warrant and agree that you have no medical condition that would make it unsafe for you to participate in climbing, sauna use, or any other activities offered at our premises.

Fees and Payment Terms

Payment Methods: The payment methods we offer for the Fees are set out on the Website. If you choose to pay your fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment). If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account or card in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account or card for which you provide details.

Changes to Fees: We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days’ notice of the change as per clause 2.

No Fraud: You must not pay, or attempt to pay, any Fees due under these Terms or as a result of your use of the Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.

Failure to Pay: If any Fees due under these Terms or as a result of your use of the Services are not paid on time, we may:

suspend your access to the Services; and

charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.

Taxes: You are responsible for paying any levies or taxes associated with your use of the Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

Late Payments: If you don’t pay on time as agreed, we can choose to stop providing the Services 5 business days after the payment was due and we can also ask you to pay for any extra costs we face because you didn’t pay on time. This includes any costs to get those payments from you.

Refunds: The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.

Term and Termination

Single Pass Use: If your Membership or the Additional Services are a single use pass, this Agreement will end on the earlier of the date the Services are completed (as reasonably determined by us) or the date on which this Agreement is terminated 

Month To Month: All recurring Services continue for the agreed Service term (that you selected when purchasing the Service) (Initial Term). If your Membership is Month To Month, on expiry of the Initial Term your Membership will be automatically renewed for subsequent 1 month periods (each a Renewal Period), unless either party provides at least 5 Business Days written notice before the end of the Initial Term or the end of the then-current Renewal Period (as applicable) that it does not wish to renew and will continue until terminated in accordance with its terms. Your cancellation will take effect at the end of your current Initial Term or the end of the then-current Renewal Period (as applicable), and the Services will not be renewed (meaning you will need to continue paying all fees due up until the such date).

Termination for convenience: After the Minimum Period, either party may terminate this Agreement by providing written notice to the other party. As set out on the Website, a Cancellation Fee may be payable by you if you terminate for Convenience.

Termination for breach: This Agreement can be terminated by either party (the Non-Defaulting Party) with immediate effect if the other party (the Defaulting Party) fails to fulfil a significant obligation under this Agreement. If the Defaulting Party does not correct the breach within 10 business days after receiving written notice from the Non-Defaulting Party, the Non-Defaulting Party has the right to terminate the Agreement immediately.

Refunds: If you have paid upfront for recurring access to any of the Services (excluding one-time purchases) and we cancel for convenience or you terminate for breach, we will issue you a pro-rata refund for such Services. Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.

Australian Consumer Law

Consumer Law Rights: In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms. If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

Recreational Waiver: Under the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)), statutory guarantees apply to the supply of certain goods and services classified as recreational services or dangerous recreational activities. Our Services fall within this category. These guarantees mean that we are required to ensure that the recreational services/ activities we supply to you:

are rendered with due care and skill; and

are reasonably fit for any purpose which you, either expressly or by implication, make known to us; and

might reasonably be expected to achieve any result you have made known to us.

We are entitled to ask you to agree that these statutory guarantees do not apply to you. If you accept these Terms, you will be agreeing that our Waiver provided to you forms part of these Terms and your rights to sue us under the Australian Consumer Law if you are killed or injured because the Services provided were not in accordance with these guarantees, are excluded in the way set out in these Terms. For the avoidance of doubt, this means that you agree to release us from any Liability and waive any claims for:

death; 

physical or mental injury (including aggravation, acceleration or recurrence of such injury); 

the contraction, aggravation or acceleration of a disease; or

the coming into existence of any other condition, circumstances, occurrence, activity, form of behaviour, course of conduct, or state of affairs in relation to you, that

is or may be harmful or disadvantageous to you or the community; or

may result in harm or disadvantage to you or the community, arising from or in connection with the dangerous recreational activity or recreational services, including your participation in the Services. This release does not apply to significant personal injury caused by reckless conduct by us or our Personnel. 

This clause will survive the termination or expiry of the Agreement. 

Limitations on Liability

Suitability: You are solely responsible for determining the suitability of any Services. You acknowledge and accept that there is a degree of risk in participating in the Services, and your participation in the Services is at your own risk.

Exclusions: Despite anything to the contrary, but subject to your Consumer Law Rights:  

you agree that these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are expressed in these Terms;

we will have no Liability, and you waive and release us from all Liability, arising from or in connection with:

the Services to the extent they are a dangerous recreational activity or recreational service (as these terms are defined in clause 8.2);

any loss, theft or damage to your property (including personal items);

any negligent acts or omissions of you or any third party, including any third party that you allow onto the Premises or to use any part of the Services and/or any other member or user of the Premises; and/or

the lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services;

neither party will be liable for Consequential Loss; 

each party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party or any of that party’s Personnel, including any failure by that party to mitigate its losses; and

our maximum aggregate Liability arising from or in connection with these Terms is limited to us re-supplying the Services to you, or, at our option, refunding to you the amount you have paid us for the Services to which your claim relates.

This clause will survive the termination or expiry of the Agreement.

General:

Intellectual Property: Each party will maintain ownership of any intellectual property they independently create during the duration of this Agreement. There will be no transfer of intellectual property rights between the parties, except as explicitly outlined in these Terms.

Confidentiality: Both parties commit to maintaining the confidentiality of any proprietary or confidential information shared during the Term.

Privacy: Our Privacy Policy is available on our Website.

Subcontracting: We reserve the right to subcontract any portion of the Services at our discretion without needing to get your written approval beforehand. We commit to being fully responsible for fulfilling our obligations under this Agreement, and we will ensure that any subcontractors we employ will adhere to the terms of this Agreement as if we were performing the Services directly.

Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the parties.

Governing Law: This Agreement is governed by the laws of NSW.

Dispute Resolution: In the event of a dispute, the parties will first attempt to resolve the matter through mutual discussion or mediation.

Interpretation: To the extent of any ambiguity or discrepancy the order of priority will be (1) these Membership Details; (2) our Terms and Conditions; (3) our Waiver; (4) our Health Questionnaire; and (5) our Privacy Policy.

Definitions: 

The Services, the Fee and Payment Terms and the Term will be as set out in the Membership details;

Climbing includes bouldering, rock climbing and the use of hangboards, campus boards, ropes and other rock climbing and bouldering training equipment; 

Rules and Safety Guidelines means, respectively, our rules and safety guidelines, available on our website, as amended by us from time to time; and

Website means www.climbthenest.com.au.