Fitness Passport FAQ

1.        Preamble

1.1.      FP wishes to contract with you to provide you with access to a number of participating gym, swimming pool and/or leisure facilities (Facilities), through the use of a Fitness Passport Membership (Membership) on the terms and conditions set out below. 

1.2.      These terms and conditions together with the online sign-up form, make up a legally binding agreement (the Agreement) between: Fitness Passport Pty Limited ACN: 118 426 029 (FP) AND the person(s) named as the “Member” in the submitted Engagement Form. For the purposes of this Agreement, the Member will also be referred to as “you” and “your” throughout.

1.3.      You may accept this Agreement by doing either one or more of the following:

1.    Completing the online sign-up at www.fitnesspassport.co.nz and accepting these terms and conditions; or
2.    Logging in to the MyFP App and accessing your digital Membership card; or
3.    Accessing Facilities as part of your Membership after receiving notice of these terms and conditions (which may     include notice of where these terms can be located).

2.        Membership

2.1.      FP will issue an invitation to become a Fitness Passport member to those that are eligible for Membership as outlined in clause 2.2, and are suitable for FP Membership. On this basis, FP reserves the right to restrict any individual or family from gaining a Membership.

2.2.      Without limiting any other provision of this Agreement or FP’s rights at law, to be eligible for a Membership all Members must be an employee of an employer who is a party to a current Employer Engagement Agreement with FP or an immediate family member of such an employee as that term is defined in clause 2.6. 

2.3.      The following classes of members apply to all Memberships:

1.    Primary Member is the person who is an employee of an employer and who is a party to a current Employer Engagement Agreement with FP; or
2.    Secondary Member is a person who is a member in accordance with the provisions of clause 2.6(a) (partner or spouse of Primary Member) or clause 2.8 (under an Additional Dependent Passport); or
3.    Minor Member is a person who is a member in accordance with the provisions of clause 2.6(b),

(Collectively, the Members).

2.4.      FP offers the following types of Memberships:

1.    An 'Individual Fitness Passport'; or
2.    A 'Family Fitness Passport if obtained in conjunction with an Individual Fitness Passport'; or
3.    If obtained in conjunction with one of the other Memberships, an ‘Additional Dependent Passport’.

2.5.      An Individual Fitness Passport is for the sole benefit of the Primary Member. No benefits or entitlements attached to an Individual Fitness Passport may be transferred or shared.

2.6.     A Family Fitness Passport entitles a prospective Primary Member and the Primary Member’s immediate family members to access participating Facilities under the Membership. For the purpose of this clause ‘immediate family members’ is limited to:

1.     partner or spouse of the Primary Member who permanently resides at the same address as the Primary Member in accordance with or as defined in clause 2.7; and
2.     dependent children of the Primary Member who permanently live with the Primary Member and who are aged under 18 years. 

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

The rights of each dependent child to access the Facilities under the Family Fitness Passport shall cease on the day that each child turns 18 years. The conditions of the Additional Dependent Passport for dependent children aged between 18 to 25 years is outlined in Clause 2.8 and 2.9.

For the avoidance of doubt, “partners” and “Dependants” do not include siblings, parents, flatmates, extended family members or friends.

2.7.     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 as the family members must permanently reside at the same residence as the Primary Member.

2.8.     While you hold a current Individual Fitness Passport or a Family Fitness Passport you are also conditionally eligible for an Additional Dependent Passport upon payment of the Additional Dependent membership fee detailed in the engagement form. An Additional Dependent Passport entitles a child of the Primary Member aged between 18 and 25 who resides with the Primary Member and who is, in the opinion of FP, financially dependent on the Primary Member to access the Facilities under the Membership. You must, at the reasonable request of FP, provide evidence of the financial dependency of the Secondary Member to be covered by the Additional Dependent Passport which may include details of government payments received by you in respect of the Secondary Member or documents confirming full time study undertaken by the Secondary Member. The rights of the Secondary Member to access to the Facilities under the 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.

2.9.     If your child joins the program as a Minor Member and turns 18 during the course of the Membership, your Membership will automatically be upgraded to include an Additional Dependent Passport unless you notify FP you would like the Minor Member’s Membership to be cancelled before they turn 18. 

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

2.11.    Membership will commence on and from the date of the Primary Member's first fee payment. The Secondary Members may attend any participating Facilities only after the Secondary Members have activated their digital Fitness Passport ID Card. 

2.12.    To obtain a Facility access membership card from, or entry to each Facility, the Member must provide that Facility with a form of photographic identification acceptable to that Facility and his or her digital Fitness Passport Membership card. If there is a photo ID on the digital Fitness Passport Membership card, additional photographic evidence is not required.

2.13.    If a Member has his/her Membership terminated by FP, FP will immediately communicate this information to each participating Facility and all Facility Access Cards issued to that Member by participating Facilities will immediately be cancelled and must immediately be returned by that Member. The digital Fitness Passport Membership card will be deactivated.

2.14.    FP will regularly update the list of current financial members for each participating Facility and all inactive Members will have their Facility-Access cards cancelled in accordance with clause 2.13.

3.        Term and fees

3.1.      Membership fees are set out in your specific Employer page at fitnesspassport.co.nz and will be subject to review on an annual basis

3.2.      The additional fees set out in the table below may be charged in certain circumstances, as set out in this Agreement.

3.3.     Membership is for an initial fixed term of one (1) year commencing on and from the date of the Member’s first fee payment. The Member may attend any participating Facilities on the specified package list.

3.4.    Subject to clause 3.5, all membership fees must be paid on or before the due date by direct debit from the Member’s nominated account. You must sign all forms and provide all authorities reasonably requested by FP to ensure that the direct debit facility is established and maintained during the currency of the Membership.

3.5.    Notwithstanding clause 3.4, if agreed between the parties in writing, Membership fees may be paid on behalf of the Member by the Member’s employer by way of payroll deduction. Notwithstanding any agreement in respect of payroll deduction, you acknowledge and agree that you will remain liable for the Membership fees and will immediately pay any outstanding Membership fees if they are paid by your employer. Payment via payroll deduction is no longer a payment option for new members. This clause only applies to those members with existing payroll deduction arrangements in place. 

3.6.     If you cancel your Membership and rejoin at a later date, the subsequent Membership will be governed by FP’s trading terms current at the time you rejoin and will constitute a separate agreement for the term detailed in that separate agreement. 

3.7.     If a regular payment is agreed by FP, and notwithstanding expiration of the initial fixed term, your membership will continue and you will continue to be automatically charged the regular Membership fee following the initial term of one (1) year until you request a cancellation by contacting FP. 

3.8.    Without limiting any other rights FP might have at law or under this Agreement, if a payment to FP is suspended or cancelled for any reason, then the Member must, on request by FP, immediately pay the amount owed or FP may immediately cancel that Member's Membership without notice. If this occurs before the initial 12-month minimum period transpires, applicable cancellation fees may also apply as set out in clause 5.1.

3.9.     In addition to, and without limiting clause 3.8, where a periodic direct debit payment is not received by FP or otherwise fails without fault of FP, FP will be entitled, and you hereby authorise FP to, recover the amount of the failed payment in addition to and at the time the next periodic payment is due (that is, the next immediate periodic payment will be for an amount equal to 2 times the usual periodic payment). You must sign any document and provide your authority to ensure the additional amount can be recovered via the existing direct debit facility by FP. If the subsequent direct debit payment is also not received or otherwise fails you must pay FP an account dishonour fee of $5.00 for each occasion that the subsequent direct debit payment/s is not received or fails. This dishonour fee will cover FP's administrative costs (including costs that we have to pay to our payment service providers) resulting from the direct debit failing.

3.10.    Membership fees paid in advance will not be refunded except:

1.    in the specific circumstances referred to in clause 11.2; or
2.    where required by law.

3.11.    A Facility may charge you an additional fee to issue Facility specific access cards, tokens or passes. This fee is payable to the Facility in addition to the membership fees. 

3.12.    A Member may be liable to pay any fees incurred by FP in establishing and maintaining the payment arrangement, due to his or her nominated bank account being declined for payment.

3.13.      Notwithstanding clause 3.1, you acknowledge and agree that it may be reasonably necessary from time to time, for example in the case of a significant increase in costs of operating the program, for FP to increase the membership fees. FP will use reasonable endeavours to notify members not less than forty (40) days in advance of any such increase, which will apply to that Member for the balance of the term of their Membership. Members acknowledge that membership fees may be increased during their initial one (1) year contract term.

3.14.    If you, or any other person (including a Secondary Member) continues or attempts to use the Facilities under your Membership after you (or the Secondary Member) become ineligible, or the relevant Membership is cancelled, FP reserves the right to continue to charge you as the Primary Member the Membership fees to cover all costs incurred.

3.15.    If a FP member wishes to attend a Facility   located inside a licenced premises (e.g. Leagues Club or RSL Club) the FP member may be required to join the club directly as a member to be able to access the Facility and any such access will be subject to any terms attached to that club membership.

3.16.    FP cannot guarantee that a Facility will not charge a joining fee. FP takes no responsibility for any Facility that does charge a joining fee and the fact that the Facility chooses to charge a joining fee will not alter this Agreement in any way.  It is your responsibility to understand any joining fees or other fees associated with the Facilities you choose to access. 

3.17.    If you visit a Facility that requires scanning a FP QR to record visits, you must scan this QR code with your mobile phone on every visit. This includes those facilities that are 24/7 facilities that can be accessed outside of staffed hours. 

4.        Direct Debit Payments

4.1.     Where you have elected to pay Membership fees via direct debit, (by completing the online sign up form), you hereby 

request and authorise FP to arrange, through its own financial institution, a debit to your nominated account any amount FP deems payable by you under this Agreement. This debit or charge will be made through the Bulk Electronic Clearing System (BECS) from your account held at the financial institution you have nominated online and will be subject to the terms and conditions of the Direct Debit Request Service Agreement contained in this clause 4.

4.2.     By accepting this Agreement you are providing FP with a valid instruction in respect to your Direct Debit Request. You confirm that you have understood and agreed to the terms and conditions governing the debit arrangements between you and FP as set out in this Request and in your Direct Debit Request Service Agreement (DDRSA).

4.3.     The following clauses constitute your Direct Debit Service Agreement with FP. The agreement is designed to explain what your obligations are when undertaking a Direct Debit arrangement with FP. It also details what FP’s obligations are to you as your Direct Debit provider.

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

4.5.        FP may vary any details of this DDRSA at any time by giving you at least fourteen (14) days written notice. Where you receive notice of any variation and you do not consent to the varied terms, you may notify us and cancel the DDRSA upon and subject to provision of adequate replacement arrangements for payment of your periodic membership fees and any other money payable by you under this Agreement.

4.6.     At any time after the initial 1 year fixed term, you may stop a debit payment, or terminate this Agreement by providing at least thirty (30) days notification in writing to FP. Unless otherwise expressly provided in this Agreement or at law, you may not cancel your Membership at any time during the initial 1 year term. 

4.7.      It is your responsibility to ensure that there are sufficient clear funds available in your account to allow a debit payment to be made in accordance with this Agreement.

4.8.      If there are insufficient clear funds in your account to meet a debit payment:

1.    you may be charged a fee and/or interest by your financial institution;
2.    you may also incur fees or charges imposed or incurred by FP including without limitation those fees detailed in clause 3.9 and third-party debt collection and legal costs; and
3.    you must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that FP can process the debit payment.

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

4.10.     If you believe that there has been an error in debiting your account, you should notify FP and confirm that notice in writing as soon as possible so that we can resolve your query more quickly. Alternatively, you may direct your query to your financial institution direct.

4.11.     If FP, acting reasonably, concludes as a result of its investigations that your account has been incorrectly debited FP will respond to your query by arranging for your financial institution to adjust your account (including interest and charges) accordingly. FP will also notify you in writing of the amount by which your account has been adjusted.

4.12.     If FP, acting reasonably, concludes as a result of its investigations that your account has not been incorrectly debited FP will respond to your query by providing you with reasons and any evidence for this finding in writing.

4.13.     You should check:

1.    with your financial institution whether direct debiting is available from your account as direct debiting is not available on all accounts offered by financial institutions; and
2.    your account details which you have provided to us are correct by checking them against a recent account statement; and
3.    with your financial institution before completing the Direct Debit Request if you have any queries about how to complete the Direct Debit Request.

4.14.     FP will use reasonable endeavours to keep your account details in your Direct Debit Request confidential. FP will make reasonable efforts to keep any information that FP has about you secure and to ensure that any of FP’s employees or agents who have access to information about you do not make any unauthorised use, modification, reproduction or disclosure of that information. FP’s use and disclosure of your personal information, including information provided on your Direct Debit Request will be governed by FP Privacy Policy and clause 15. 

4.15.     Notwithstanding clause 4.14, FP cannot and does not warrant or guarantee that its systems are fail safe or impermeable to malicious or deliberate attempts to take or destroy confidential information. To the fullest extent permitted by law FP excludes all liability arising out of loss or disclosure of your confidential information in circumstances where FP has used reasonable endeavours to protect that information. 

4.16.     We will only disclose information that we have about you:

1.    to the extent specifically required by law; or
2.    f or the purposes of this Agreement (including disclosing information in connection with any query or claim).

4.17.     If you wish to notify us in writing about anything relating to this agreement, you should write to Fitness Passport, PO Box 775, Customer ID H0627, Cherrybrook NSW 2126, Australia or email info@fitnesspassport.co.nz 

4.18.     Any notice will be deemed to have been received on the third Working day after posting. Working day means any day other than a Saturday, Sunday or public holiday as set out in the Holidays Act 2003

5.         Cancellation of membership

5.1.      Subject to the remainder of this agreement, to cancel your membership you must give written notice to your employer and FP at info@fitnesspassport.co.nz.  Cancellation of a Membership by a Member will be allowed at any time in the first 14 days from the date of your first direct debit (by giving notice in writing to FP) or following the expiration of the initial 1 year term of the membership. If you cancel following the expiration of your initial 1 year minimum term, your membership will be cancelled prior to the next direct debit following the expiry of the notice you provide us in accordance with clause 4.6 and you will have access to Facilities for the period paid for by your final direct debit payment.. Except for the circumstances set out in clause 5.4 or 5.5, should you otherwise request cancellation of your Membership, then you will be liable for a Membership cancellation fee outlined in the table below. This fee is determined by the date of cancellation in relation to your contract start date and any subsequent additions to this minimum date due to suspension of your membership.

*Plus membership means your membership, that also has a dependent child aged between 18 and 25 (an Additional Dependant Passport).

5.2.     You may at any time upgrade your Membership from an Individual Fitness Passport to a Family Fitness Passport. You may not downgrade your Membership from Family to Individual within the first 12 months, unless a dependent child has turned 18 (in which case an extra fee will be payable) or 25 (in which case the dependant will be ineligible to continue). After the initial 12 month period you can upgrade or downgrade your Membership as you require by notice in writing to FP.

5.3.     You may suspend your Membership for a minimum of 2 weeks and a maximum of 2 months without documentation, but only for a maximum of 2 months per calendar year. A $5 service fee will be charged for each fortnight of your suspension request and is not refundable if the suspension is reduced or cancelled at a later date. If you need to suspend your Membership for longer than 2 months, you must supply evidence in the form of a flight itinerary or doctors’ certificate (or other relevant documentation). Fitness Passport will then confirm as to whether your suspension is approved. Payments will be suspended during this time. Partial suspensions of Memberships and suspensions during the thirty (30) day cancellation notice period are not permitted. All members of the membership will be suspended for the full duration approved. Suspension will not be backdated.

5.4.     You may lodge a written request with FP for cancellation of your Membership due to 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.    subject to clause 5.5, a recognised medical condition.

5.5.     In the case of a medical condition which prevents you from utilising your Membership, FP will:

1.    agree to a cancellation of the Membership if a letter is provided from a certified physician stating that you are on a medical restriction of an indefinite nature, in which case the Membership may be cancelled; or
2.    direct that the Membership be suspended for the duration of the injury/ailment where a letter is provided from a certified physician stipulating an approximate period that you will be on a medical restriction.

5.6.     Following the period of suspension, the Membership will resume with the same rights and obligations as applied at the time of the suspension, including payment obligations and credit for any unused payments. 

5.7.     If a suspension occurs within the initial 12 month contract period the duration of the suspension will be added to the contracted period, so that the total period for which you have been a financial Member equals 12 months.

5.8.     Except as set out in clause 5.3 above, FP reserves the right to determine the individual merit of each application and reserves the right to refuse a written request for cancellation or suspension of a membership in line with the terms of this agreement.

6.         Warranties and acknowledgements regarding Secondary Members

6.1.      The Primary Member warrants that they have the authority and approval of the Secondary Members to nominate the Secondary Member at sign-up.

6.2.      The Primary Member acknowledges that the Secondary Members will not be entitled to access any Facilities until the Secondary Members have completed the activation procedure of their Fitness Passport.

6.3.      The Primary Member acknowledges that it is the responsibility of the Secondary Member to complete the activation procedure and the Primary Member hereby undertakes to FP to inform the Secondary Member of the activation requirement and procedure.

6.4.      The Primary Member agrees that FP may charge the fees associated with Family Fitness Passport or the Additional Dependant Passport from the commencement of the Primary Member’s Membership, irrespective of the activation status of the Fitness Passport for any Secondary Members.

6.5.      The Primary Member warrants that it has 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.

6.6.      The Primary Member warrants to FP that it will ensure the Minor Member(s) and Secondary Member(s) comply with this Agreement and the rules outlined in clause 10.

6.7.      The Primary Member acknowledges that any indemnities or releases given by the Primary Member are given, as separate indemnities and releases, in relation to any claims arising out of or relating to the Primary Member’s Membership and each Minor Member’s and each Secondary Member’s Membership. 

7.         Amendment to rules and included facilities

7.1.      Amendment to the rules

1.    You acknowledge and agree that FP or a Facility has or may at any time develop rules of conduct for any Facility. Those rules do not form part of this Agreement. FP reserves the right at all times to vary any such rules at any time. The rules developed or varied by FP or a Facility may relate to the health and safety of Members during use of a Facility, or requirements around access to a Facility.
2.    Where we have been notified by a facility, FP will notify Members who attend the relevant facility in the event of any changes to the rules of conduct for that Facility by emailing the Primary Member.
3.    Should you continue to use your Membership after notification in accordance with the preceding clauses, then you will be deemed to have accepted any amendments contained in such notification.

7.2.     Amendment to included Facilities 

1.    While FP uses reasonable endeavours to maintain the quality of its network, some Facilities may be removed from time to time (including, without limitation, where in FP's opinion, the Facility is not being utilised or is being underutilised). You acknowledge and agree that FP reserves the right at all times to vary the services and Facilities to be offered at any participating Facility at any time.
2.    FP will notify Members who attend a Facility if the Facility is removed from their Membership by emailing the Member.
3.    Should you continue to use your Membership after notification in accordance with the preceding clauses, then you will be deemed to have accepted any amendments contained in such notification.

8.        Benefits of membership

8.1.     In accordance with the terms of this Agreement and the terms and conditions of any Facility, Membership will provide each Member with access to a range of Facilities. The range of Facilities and services that a Member can access may vary from time to time.

8.2.     Members may utilise the services of any or all of the participating Facilities on the specified package list by approaching each individual Facility and providing their digital FP Membership card and an acceptable form of photographic identification to that Facility. At that time, the Facility will either present the Member with a Facility Card or alternatively will require the Member to show their FP Membership card and photographic identification on each subsequent visit. If a Fitness Passport QR code is in place at the Facility, the member must scan this with his/her mobile phone on each visit.

8.3.     You may frequent each participating Facility as many times as you choose during the currency of your Membership. Limitations may be placed on certain exclusive packages. Should limitations on visits be implemented members will be notified during promotion of the package.

8.4.     Membership does not cover visits to a facility that are part of an organised team or individual training program. For example, swimming lessons, swimming squads, diving training, school sport, netball training, water polo, school carnivals etc.

8.5.     Membership does not cover babysitting services or creche visits.

9.        Fitness Centre Cards

9.1.     On acceptance of the application for membership, each Member will be provided with a digital Membership card from FP. These cards may also be referred to as Fitness Passport, or an ID card.

9.2.     FP will regularly update the list of current financial Members for each individual Facility.

9.3.     On confirmation of Membership each Member may be issued with a Facility Access Card for each Facility at the time they visit the Facility as a means of permitting access to the Facility. The Facility Access Card includes, but not limited to, a 24 hour electronic key. Members may also be required to continue to use their Fitness Passport digital Membership card to gain entry.

9.4.     If accessing a Facility during unstaffed hours, Fitness Passport members must purchase an electronic out of hours access key for a fee paid directly to the gym on their first visit. The electronic key permits access during un-staffed hours and is also used to keep a record of visitation and so must be purchased whether you intend to use the gym outside of hours or not. Fees may vary depending on the location and are not governed by this Agreement.

9.5.     Members are not restricted on the amount of Facility Access Cards they may obtain from different participating Facilities or the number of Facilities they may visit.

9.6.     Should a Member cease employment with the employer affiliated with FP the Member must advise Fitness Passport in writing by emailing info@fitnesspassport.co.nz. During this time payments will still accrue and be payable by you until you have advised Fitness Passport of the change in employment status. Once the membership is cancelled membership fees will cease to be accrued and the cancellation fee will not apply per Clause 10.13.

9.7.     All Facility Access Cards are and shall remain the property of the individual Facility. The Facility Access Card must be returned on demand by the Facility.

9.8.     When a member terminates their Membership with Fitness Passport, all Facility Access Cards must be returned to the relevant facility for cancellation. FP will also advise any relevant Facilities that the FP member has terminated their Membership.

9.9.     Once your Membership is cancelled in accordance with this Agreement, FP will cancel the relevant payments and your access to the FP Member app will be removed.

10.        Rules and conditions of membership

10.1.     You must abide, and must ensure that all associated family Members abide, by each Facility's terms and conditions of entry or use.

10.2.     Members found materially breaching the terms and conditions of Membership will have their Membership cancelled, without obligation by FP to reimburse,  and are liable to pay for any visits that were made outside of FP terms and conditions, including those made as the result of a Secondary Member or Minor Member breaching the terms and conditions of Membership. This includes, but is not limited to: allowing someone other than the person listed on the digital Membership card to use the card, adding ineligible members to your FP membership or using the FP card to obtain benefits outside the prescribed program. The fees withheld by FP will cover the costs incurred by FP as a result of your payments being in arrears or breach of this Agreement. 

10.3.       FP will notify you of any changes to any terms or conditions related to your Membership or the fees related to your Membership by emailing the person appointed within your employer as the Fitness Passport Facilitator (in which case that person will be responsible for and will be deemed to have notified you) and providing at least 40 days’ written notice.

10.4.      If a change to a term of this Agreement including changes to fees has a detrimental impact on you you may terminate this Agreement by providing at least thirty (30) days, and FP agrees that it will not charge a cancellation fee (including for Members in the first year of their Membership) in such circumstances. 

10.5.      You agree that the preceding notification process is reasonable. Providing FP has complied with this process, then it has discharged its duties of notification of changes to you. Should you continue to use your Membership after notification in accordance with the preceding clauses, then you will be deemed to have accepted any amendments contained in such notification. Where such amendments are to a Member's detriment, the Member may cancel their Membership, within 40 days' of being notified of the changes to the terms and conditions, without paying a cancellation fee. 

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

10.7.     FP is not liable for and will not refund to you any separate payments you make directly to a Facility for any reason. Any extra payment made to a Facility constitutes a separate arrangement between you and the Facility and FP does not receive any of these payments.

10.8.     You acknowledge and agree to consult with an employee of each Facility on your first visit to each respective Facility to undergo a fitness assessment and any other induction required by the Facility and to determine the level of fitness of the Member. This may incur a cost to you.

10.9.     Notwithstanding the foregoing you acknowledge and agree that you have been advised by FP that you should attend, and have either attended, or elected of your own volition not to attend, an appointment with your own General Practitioner (Dr) for the purpose of:-

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.    to obtain a full physical health check so you can advise any Facility which you attend of any prevailing medical condition(s) which might affect your ability to use any piece of equipment or participate in any fitness program and you hereby release to the fullest extent permitted by law both FP and each Facility from any and all liability that might arise from you having either elected not to, or failing to, attend your General Practitioner (Dr) for the above purposes. 

10.10.     You acknowledge and agree that you must seek instruction from relevant instructors at each Facility before using any piece of equipment and release to the fullest extent permitted by law both FP and each Facility from any and all liability that might arise from you using any equipment either without instruction or not strictly in accordance with any instructions so provided.

10.11.     FP will use best endeavours to ensure that the offering of Facilities that a Member can access through the FP Membership match the Facilities that have been advertised to that Member. 

10.12.     FP’s engagement with Facilities is on a venue-by-venue basis, not franchise by franchise. For example, if you are able to access Curves at a specific location on this program, it does not mean you can access every Curves franchise. The Member can only use the Facilities at the locations specified by FP from time to time.

10.13.     You must not use your Membership in a way that is fraudulent, including (without limitation) registering visits at Facilities in circumstances where you are not actually using the Facility's services.  FP prohibits the use of your Membership at Facilities where it reasonably believes there is a heightened risk of fraudulent activity, including (without limitation) using of your Membership to enter any Facility where the Member or a member of the Member’s immediate family is an owner, employee or contractor of the relevant Facility. There are some instances where an owner, employee or contractor of a Facility may be eligible for a Fitness Passport Membership be it as a Primary or Secondary Member, and this will not be considered fraudulent activity. Any fraudulent or prohibited use of your Membership will be a breach of these Terms and may result in the suspension or termination of your Membership. FP will not make any payment to the relevant Facility relating to such a visitation nor will FP recognise the visitation in any other manner. 

10.14.     If you leave the employment of an employer with whom FP has an engagement agreement:

1.    you must give notice to FP of this as soon as is reasonably possible in accordance with clause 9.6.
2.    FP may terminate your Membership by providing you with written notice.  If FP terminates your Membership: (i) in accordance with clause 11.1, FP will refund any prepaid fees in respect of the remaining period of your Membership term, subject to clause 11.2; and (ii) you will not need to pay any cancellation fees

10.15.     FP expressly forbids the use of a Fitness Passport Membership being used in the course of either work experience or entry into the workplace. For the avoidance of doubt, a member’s Fitness Passport cannot be used where a member is working in the gym. The most obvious form of this is working as a personal trainer, whether the member is directly employed by the gym or working in any other capacity as another person’s personal trainer.

10.16.     Whilst FP members are subject to the age restriction of the Facility they attend, FP has a minimum age restriction of 13 years old. The only exceptions to this include the child is attending an approved class for kids which is operated by a qualified instructor or using the swimming pools.

11.         Termination of membership

11.1.      Subject to clause 11.3, FP reserves the right at any time to revoke the Membership of any Member and/or the right of any Member to use the benefits provided by the Membership for any legitimate business, legal or regulatory reason by giving not less than one month notice to the Member of such termination and revocation.

11.2.      If a Member's Membership is terminated, by FP pursuant to clause 11.1, that Member will (subject to this clause) be refunded that amount of their membership fee (if any) that has been paid in advance and remains unused as at the date of termination.

11.3.     Without limiting clause 11.1, FP may, acting reasonably and after consultation with the Member, terminate a Member's Membership immediately in each of the following circumstances without the obligation to reimburse detailed in clause 11.3 or otherwise:

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

11.4.      If you leave the employment of an employer with whom FP has an engagement agreement, your Membership will be terminated regardless of whether the initial 12 month membership period ended upon advising FP by emailing info@fitnesspassport.co.nz.

11.5.      If the agreement between FP and your employer is terminated, FP may in its discretion terminate your Membership and refund, on a pro-rated basis, that amount of their membership fee (if any) that has been paid in advance of the date of termination. On termination of this Agreement under this clause, you must immediately return your Facility Access cards to the Facility and delete the FP Member App.  For the avoidance of doubt, if the agreement between FP and your employer is terminated and FP has not terminated your Membership, you may continue to use your Membership until FP terminates this Agreement under this clause.

12.        No warranty

12.1.     To the maximum extent permitted by law (including the Consumer Guarantees Act) FP does not warrant in any way, and expressly excludes any warranty which may otherwise be implied, that the services and Facilities will be available at any particular time or times nor does it warrant the condition and repair of such facilities offered at each participating Facility. Additionally, FP gives no warranty and shall have no liability whatsoever in respect of services offered by the respective Facilities or as to the accuracy of any description of or information about services or Facilities given by any of the participating Facilities. For the avoidance of doubt, nothing in this Agreement limits or excludes any non-excludable warranties or consumer guarantees under the Consumer Guarantees Act.

13.        Guarantee and Indemnity

13.1.     You unconditionally and irrevocably indemnify FP against any loss, damage, cost, charge or expense whatever in connection with or as a consequence of you failing to meet your obligations contained in this Agreement and/or any other agreement reached between FP and you.

13.2.     You unconditionally and irrevocably guarantee to FP the due and punctual observance or performance of all of the obligations by all Secondary Members that have access to the Facilities due to your relationship with FP in accordance with the terms of the Secondary Member Engagement Terms and any subsequent agreement made between those Secondary Members and FP.

13.3.     You unconditionally and irrevocably guarantee to FP the due and punctual observance or performance of all of the obligations by all Minor Members that have access to the Facilities due to your relationship with FP in accordance with the terms of this Agreement.

13.4.     You unconditionally and irrevocably indemnify FP against any loss, damage, cost, charge or expense whatever in connection with or as a consequence of:

1.    any Secondary Member that has access to the Facilities due to your relationship with FP; and/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 and/or any rules a Facility imposes and/or the obligations contained within the Secondary Members Engagement Terms.

13.5.     For the avoidance of doubt, in the case of any Minor Member that has access to the Facilities due to your relationship with FP, you are unconditionally and irrevocably guaranteeing and indemnifying FP from any loss, damage, cost, charge or expense whatever caused by such Minor Members as per clauses 13.3 and 13.4 above and in accordance with section 102 of the Contract and Commercial Law Act 2017.

13.6.    For the avoidance of doubt, your liability under the indemnities in this clause 13 will be proportionately reduced to the extent that any claim, loss, liability or damage results from a negligent act or omission of FP.

14.        Liability and release

14.1.     The Consumer Guarantees Act applies to services (and any goods) provided by FP to you under this Agreement, and you are entitled to remedies under the Consumer Guarantees Act where services or goods fail to comply with a guarantee under that Act. Without limiting your rights under the Consumer Guarantees Act and to the maximum extent permitted by law, for any other liability, subject to clauses 14.2 and 14.3 in no event will: 

1.    FP's 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) exceed the total value of all membership fees paid by you to FP under this Agreement in the past 12 months; or
2.    FP be liable to you (whether under contract, tort (including negligence), statute, equity or otherwise) for any: (i) damages, losses or causes that do not arise naturally according to the usual course of things; or (ii) loss of business, loss of use, loss of savings, revenue or profit, or loss or corruption of data. 

14.2.     You acknowledge and agree that FP: 

1.    does not manage or operate any Facility, each Facility is managed and operated by independent third parties; and 
2.    is not liable for the acts or omissions of any Facility, including without limitation:
   1.  cancellation of fitness classes by a participating Facility; or
   2.  amendment to class schedules and hours of operation; or
   3.  termination of individual Facility Access Cards due to failure of a Member to abide by the terms and conditions of usage of the participating Facility or otherwise; or
   4.  cancellation of a Facility's involvement with FP; or
   5.  the refusal of any Facility to accept or honour the benefits conferred by the Membership, provided such refusal is not caused by a breach by FP of its agreement with that Facility; or
   6.  injury, death or disability incurred or suffered or contributed to by any Member whilst utilising the benefits provided by the Membership; or
   7.  any loss or damage to property, whether in whole or part, incurred or sustained by a Member whilst utilising the benefits of the Membership; or
   8.  the condition, suitability, quality or safety of any goods or services provided by the participating Facilities.

14.3.     You acknowledge the inherent dangers (including personal injury and death) involved in the types of high intensity exercise and other activities that you may be involved in at a Facility.  To the maximum extent permitted by law, you agree to release FP, your employer and each Facility from any and all Claims (including in relation to injury, illness, loss or damage to both person or property) that might arise from you undertaking high intensity exercise and other activities that you may be involved in at a Facility.  This release does not apply in respect of a Facility to the extent that any such claim arises due to the negligence or wilful misconduct of that Facility. 

14.4.     To the maximum extent permitted by law, you agree to indemnify and hold FP and its officers, directors, employees, agents and contractors harmless for any and all actions, suits, proceedings, claims, demands, liabilities, damages, penalties, costs, and expenses ("Claims") arising out of or in connection with:

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

Your liability under this section 14.3 will be reduced proportionately to the extent that FP directly caused or contributed to any Claim. 

14.5.     For the avoidance of doubt, 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 Consumer Guarantees Act.

15.        Privacy

15.1.      FP acknowledges and respects the privacy of individuals. We will collect personal information from you in accordance with FP’s Privacy Policy found at www.fitnesspassport.co.nz.   You consent and agree that we may obtain personal information from you and also from third parties, such as your employer or a Facility. You further consent and agree that:

1.    we may provide your personal information (including any information relating to an incident or concern about your health and safety, which may include your sensitive information) to your employer, a Facility and/or any other third party in accordance with our Privacy Policy; and 
2.    facility or your employer may provide your personal information (including any information relating to an incident or concern about your health and safety, which may include your sensitive information) to us, which may be used by us in accordance with our Privacy Policy.

15.2.      Your personal information will only be used for the purposes for which it is collected, in accordance with FP’s Privacy Policy or in accordance with the Privacy Act 2020. You hereby acknowledge and agree with FP’s Privacy Policy.

15.3.      You are not obliged to provide any information to us, but if you do not provide us with the personal information that we request we may not be able to deliver our services. The way we collect, use and store your personal information is governed by our Privacy Policy found at the link above.   Our Privacy Policy contains information about how you can access and correct the personal information we hold about you and how you can raise any concerns about our personal information handling practices. For more information, please contact us in writing.

15.4.     As part of your Membership, you may receive information from FP from time to time regarding the services of the participating Facilities.

15.5.      If you do not wish to receive an updated participating Facility list, you should indicate this desire to FP and your name will be removed from the mailing list within a reasonable period of time.

16.        Confidential Information

16.1.     Each party acknowledges that the content of this Agreement and all information disclosed in connection with this Agreement is confidential.

16.2.     Each party will, except as otherwise required by law or with the consent of the other party, keep each other’s confidential information strictly confidential. You hereby consent to FP releasing any of your confidential information in the manner and as required or authorised under this Agreement or in accordance with FP’s Privacy Policy.

16.3.     This clause will survive the termination of this Agreement.

17.        Assignment

17.1.     The Member must not assign its rights or delegate the performance of its obligations under this Agreement without the prior written consent of FP.  Any attempted assignment or delegation without consent will be ineffective. 

18.        Jurisdiction

18.1.     This Agreement will be subject to the laws of New Zealand. The parties will submit to the exclusive jurisdiction of the Courts of New Zealand. 

19.        Notices

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

by leaving it at or posting by pre-paid mail to the following address for each party or to an alternate address that a party may notify the other party from time to time:

FP

Attention: Fitness Passport Director              

Address: Fitness Passport, PO Box 775, Customer ID H0267, Cherrybrook NSW 2126    

Email : info@fitnesspassport.co.nz 

Member

to the address or email address of the Member set out in the Engagement Form.

19.2.     Notice is deemed to have been received by a party:

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

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

20General

20.1.     The relationship between the parties is that of independent contractors. Nothing in this Agreement constitutes or will be deemed to constitute a partnership between the parties or one party as agent or employee of the other party.

20.2.     A party may not make press or other announcements or releases relating to this Agreement and the transactions the subject of this Agreement without the approval of the other party to the form and manner of the announcement or release unless and to the extent that the announcement or release is required to be made by the party by law or by a stock exchange.

20.3.     The rights and obligations of FP under or in respect of this Agreement are not personal to FP.

20.4.     This Agreement binds each party’s permitted successors, assigns, administrators and substitutes.

20.5.     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.

20.6.     To the maximum extent permitted by law (including under the Fair Trading Act), the parties acknowledge that in entering into this Agreement they have not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this Agreement.