- GymLend Pty Ltd (ABN 66 600 876 319) (GymLend) is in the business of conducting an online marketplace for the hire of health and fitness equipment between owners (Owners) and renters (Renters) (Services).
- The Services are available via website, social media accounts, applications, software and other technological means (Platform), as well as in connection with any direct communication between you and GymLend.
- This Risk Waiver is provided as a default between Owners and Renters upon acceptance of an Equipment Booking.
- Any waiver or representation provided by the Renter under this Risk Waiver is also for the benefit of GymLend.
- Owners and Renters must satisfy themselves, adapt and vary this Risk Waiver to suit their own legal interests and needs. GymLend makes no representations or warranties in respect of those policies and is in no way liable to enforce or comply with those Policies between Owners and Renters unless otherwise expressly stated. Any variance must be no less favourable to GymLend that the terms of this Risk Waiver.
- This Risk Waiver applies in addition to GymLend’s standard User Terms available on the Platform.
- In consideration of the Renter agreeing to pay the Hire Fee, the Owner agrees to hire the Equipment to the Renter in accordance with this Risk Waiver and GymLend’s standard User Terms.
- Taking part in the Activities is subject to risks. These include (but are not limited to) death, serious injury or illness due to overexertion and strenuous activity.
- The Renter has read the general risk warning and is aware that the Activities are recreational activities that can be dangerous, accept that there is a degree of risk and acknowledge and agree that they participate in the Activities at their own risk and subject to the terms of this Risk Waiver. They declare that they:
- are aware that the Activities may involve risk and the safety of the Activity or location is not guaranteed;
- are mentally and physically able to participate in the Activities;
- understand that they should not participate in the Activities unless they are in good physical condition;
- will participate within their skill level and capability during the Activities;
- consent to emergency medical care and transportation in order to obtain treatment in the event of injury as medical professionals may deem appropriate.
- The Renter acknowledges, agrees, and understands that the risk warning in the preceding paragraph constitutes a 'risk warning' for the purposes of relevant legislation including for the purpose of section 5M of the Civil Liability Act 2002 (NSW). The Renter acknowledges that the Owner’s liability arising from the Activities is excluded or reduced in so far as is possible as a result of the risk warning.
- By acknowledging this Risk Waiver, the Renter acknowledges, agrees and understands that, to the full extent permitted by law (including by section 139A of the Competition and Consumer Act 2010 (Cth), division 4 of the Civil Liability Act 2003 (QLD), section 5J of the Civil Liability Act 2002 (WA) and section 5N of the Civil Liability Act 2002 (NSW):
- its rights to sue the Owner in relation to the Activities, using the Equipment, if the Activities or associated services were not provided in accordance with any express or implied warranty or guarantee that the services will be provided with reasonable care and skill, are excluded or alternatively limited to a refund of the cost of the Hire Fee; and
- they release the Owner from all liability for a failure to comply with any express or implied warranty or guarantee that the services will be provided with reasonable care and skill,
- Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the Owner is required to ensure that any recreational services it supplies to the Renter:
- are rendered with due care and skill; and
- are reasonably fit for any purpose which the Renter, either expressly or by implication, make known to the supplier; and
- might reasonably be expected to achieve any result the Renter has made known to the Owner.
- Under section 22 of the Australian Consumer Law and Fair Trading Act 2012, the Owner is entitled to ask the Renter to agree that these statutory guarantees do not apply to it. If the Renter acknowledges this Risk Waiver, they will be agreeing that their rights to sue the Owner under the Australian Consumer Law and Fair Trading Act 2012 if they are killed or injured because the services provided were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this Risk Waiver.
- NOTE: The change to the Renter’s rights, as set out in this Risk Waiver, does not apply if your death or injury is due to gross negligence on the Owner’s part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
- Renter’s rights: Under sections 60 and 61 of the Australian Consumer Law (SA), if a person in trade or commerce supplies you with services (including recreational services), there is:
- a statutory guarantee that those services will be rendered with due care and skill; and
- a statutory guarantee that those services, and any product resulting from those services, will be reasonably fit for the purpose for which the services are being acquired (as long as that purpose is made known to the supplier); and
- a statutory guarantee that those services, and any product resulting from those services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve the result that the consumer wishes to achieve (as long as that wish is made known to the supplier or a person with whom negotiations have been conducted in relation to the acquisition of the services).
- Excluding, restricting or modifying your rights: Under section 42 of the Fair Trading Act 1987, the supplier of recreational services is entitled to ask a recipient to agree to exclude, restrict or modify his or her liability for any personal injury suffered by you or another person for whom or on whose behalf you are acquiring the services (a third party consumer).
- If a Renter acknowledges this Risk Waiver, they will be agreeing to exclude, restrict or modify the Owner’s liability with the result that compensation may not be payable if the Renter or the third party consumer suffer personal injury.
- Important: Renters do not have to agree to exclude, restrict or modify your rights by acknowledging this Risk Waiver. The Owner may refuse to provide you with the services (i.e. the hire of Equipment) if the Renter does not agree to exclude, restrict or modify their rights by acknowledging this Risk Waiver. Even if the Renter acknowledges this Risk Waiver, they may still have further legal rights against the Owner. A child under the age of 18 cannot legally agree to exclude, restrict or modify his or her rights. A parent or guardian of a child who acquires recreational services for the child cannot legally agree to exclude, restrict or modify the child's rights.
- Agreement to exclude, restrict or modify your rights: I, the Renter, agree that the liability of the Owner for any personal injury that may result from the supply of the recreational services (i.e. the hire of the Equipment) that may be suffered by me (or a person for whom or on whose behalf I am acquiring the services) is excluded.
- Recreational services are services that consist of participation in:
- A sporting activity or similar leisure-time pursuit; or
- Any other activity that involves a significant degree of physical exertion or risk and is undertaken for the purposes of recreation, enjoyment or leisure.
- Personal injury is bodily injury and includes mental and nervous shock and death.
- Further information: Further information about your rights can be found at www.ocba.sa.gov.au
- In addition to any other releases, exclusions and warranties in this Risk Waiver, to the full extent permitted by law, I, the Renter, (including my heirs, successors, executors, administrators, agents and assigns) agree to waive, release and indemnify the Owner in respect of any losses, damages, claims, injuries, liabilities, costs, charges or expenses whatsoever in connection, directly or indirectly, with my participation in the Activities, including without limitation those arising under statute, tort, contract, common law or equity (including for the Owner’s negligence ).
- I, the Renter, acknowledge that I do not have to agree to exclude, restrict or modify or waive my rights against, or release, the Owner, however the Owner may refuse to allow me to participate in the Activities, using the Equipment.
- Where this Risk Waiver is acknowledged by the Parent / Guardian / Supervisor of the user of the Equipment, the Parent / Guardian / Supervisor consents to the minor’s participation in the Activities and provides the acknowledgements and indemnities in this Risk Waiver in its own right and on the participant’s behalf.
- If anything in this Risk Waiver is unenforceable, illegal or void then it is severed and the rest of this Risk Waiver remains in force. The terms of this Risk Waiver are governed by the laws of New South Wales, Australia.
- “Activities” means any and all use of the Equipment, including (without limitation) fitness training including, strength and conditioning, cardio training, functional training, yoga, stretching and other general physical activity.
- “Booking” means a Booking Request for Equipment that has been accepted by an Owner.
- “Booking Request” means a request raised by a Renter via the Platform for Equipment.
- “Booking Request Period” means the time period starting from the time when a Booking Request is made by a Renter, within which an Owner may decide whether to confirm or reject that Booking request, as stated on the Platform. Different Booking Request Periods may apply in different places.
- “Equipment” means the health and fitness equipment listed on the Platform by an Owner for hire to Renters.
- “Hire Fee” means the fees payable by the Renter to the Owner, as updated or agreed from time to time in consideration of the Owner providing the Equipment.
- “Owner” means a Member who provides the Equipment to Renters via the Platform.
- “Renter” means a Member who requests to rent Equipment from an Owner.
WAIVER OF LIABILITY
in so far as the Activities result in my death or injury, but not including significant personal injury caused by the Owner’s reckless conduct.
WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 (VICTORIA)
WAIVER UNDER THE FAIR TRADING ACT 1987 (SOUTH AUSTRALIA)
ACKNOWLEDGEMENT BY PARENT, GUARDIAN AND SUPERVISOR (Note: Not applicable in South Australia)
SEVERABILITY OF TERMS
In these Terms: