Membership Agreement June 2015
In these terms:
Applicable Consumer Law means:
(a) If you are an Australian Member – the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time; or
(b) If you are a New Zealand Member - the Consumer Guarantees Act 1993 (NZ), as amended or replaced from time to time.
Australian Member means you, if you are resident in Australia and signed this Membership Agreement in Australia. Otherwise, you are a New Zealand Member.
Business Day means:
(a) if you are an Australian Member - a day upon which banks are open for business in the State of Victoria, Australia; or
(b) if you are a New Zealand Member - a day upon which banks are open for business in Auckland, New Zealand.
Cancellation Notice is the notice by which you may exercise your right to cancel the Contract during the Cooling-Off Period, or, for any other permitted reason specified in clause 4 below. A copy of the Cancellation Notice is available at the Centre and must be served on Jenny Craig by delivering it in person or having it delivered to the Centre by registered mail, or, faxing or emailing it to the Centre.
Centre means the Jenny Craig Centre which you selected as the Centre from which you have elected to obtain the Services associated with these Terms and any Centre means any Jenny Craig Centre.
Contract has the meaning given to that term in clause 2 of these Terms.
Cooling-Off Period means at any time prior to 5pm on the fifth day following the date of signing of these Terms.
Delivery means delivery of a Product to you to the address nominated by you in the order for that Product and Delivered has a corresponding meaning.
Governing Law means:
(a) if you are an Australian Member - the State of Victoria, Australia; and
(b) if you are a New Zealand Member – New Zealand.
Jenny Craig or our means Jenny Craig Weight Loss Centres Pty Ltd (ABN 61 006 109 842) if you are an Australian Member, or, Jenny Craig Weight Loss Centres (NZ) Limited (Company Number 271677) if you are a New Zealand Member, and also includes each Related Person.
Jenny Craig Care means Jenny Craig Customer Care, which is contactable by email, at AU-JennyCare@cjc.com.
Jenny Craig Link means:
(a) if you are an Australian Member - http://www.jennycraig.com.au/how-it-works; or
(b) if you are a New Zealand Member - http://www.jennycraig.co.nz/how-it-works.
Jenny Craig Policies means all Jenny Craig Policies applicable to a Program, which are located at the Jenny Craig Link and which we may update from time to time by means of providing a general notice at that link.
New Zealand Member means you, if you are resident in New Zealand and signed this Membership Agreement in New Zealand. Otherwise, you are an Australian Member.
Offer means any offer that Jenny Craig may elect to offer its customers from time to time at a Centre or as referred to at the Jenny Craig Link including on the first page of these Terms.
Products means any products provided by Jenny Craig to you from time to time, including food products and vitamin supplements.
Program means the Jenny Craig Programs available from time to time, including the Jenny Craig Program that you have elected to participate in, as indicated on the first page of these Terms.
Related Corporation means:
(a) if you are an Australian Member - any related body corporate or associate of Jenny Craig, as those respective terms are defined by the Corporations Act 2001 (Cth), as amended or replaced from time to time; and
(b) if you are a New Zealand Member - means any related company of Jenny Craig, as that term is defined by the Companies Act 1993 (NZ), as amended or replaced from time to time.
Related Person means:
(a) any Related Corporation of Jenny Craig; and
(b) any officer, employee, agent, adviser or contractor of Jenny Craig or any Related Corporation of Jenny Craig.
Services means the membership and other rights and entitlements afforded to you in connection with a Program.
Start Date means the date upon which you and Jenny Craig sign these Terms.
Structured Payment Arrangement means the terms and conditions applicable to the structured payment arrangement that may be offered by Jenny Craig from time to time in connection with the Products and/or Services.
Structured Payment Authorisation means the direct debit payment authorisation associated with the Structured Payment Arrangement.
Terms means this Membership Agreement.
Warehouse means the warehouse from which the Products were delivered to you from time to time, as set out on the shipping notice applicable to the relevant Products.
You or the Client means you.
2.1 The terms and conditions (Contract) applicable to the provision of the Services by you comprise:
(a) these Terms;
(b) the Health Acknowledgement;
(c) the Structured Payment Arrangement (if applicable);
(e) the Jenny Craig Policies;
(f) our Acceptable Use Policy, as referred to at http://www.jennycraig.com.au/acceptable-use-policy if you are an Australian Member or http://www.jennycraig.co.nz/acceptable-use-policy, if you are a New Zealand Member;
(h) any Offer that you may elect to accept from time to time.
2.2 This Contract and any invoice referencing this Contract govern the provision of the Services and constitute the whole of the agreement between you and Jenny Craig supersede any previous dealings, prior representations, statements and agreements in relation to their subject matter.
3. CHANGE TO CONTRACT
3.1 This Contract may be varied by Jenny Craig at any time by notice to you or by means of a notice on the Jenny Craig Link, as follows:
(a) Offers may be varied, suspended, terminated or otherwise expire in accordance with their terms;
(b) where the variation is required to comply with any law or requirement of any governmental agency or judicial body, we will provide as much notice as reasonably practicable, having regard to the applicable variation; and
(c) where the variation relates to a variation in the inclusions of any Program, or the prices of Products, we will notify you within a reasonable period of time, but no later than ten (10) Business Days prior to the variation becoming effective; and
(d) for all other variations, we will notify you within a reasonable period of time, but no later than twenty (20) Business Days’ notice prior to the variation becoming effective.
3.2 Clerical errors in this Contract are subject to correction without notice.
4. CANCELLATION AND REFUNDS
4.1 You may cancel the Contract at any time during the Cooling-Off Period for any reason if the total fees paid for you for the Services is AUD or NZD $50 (fifty dollars) or more, as applicable and you have provided a Cancellation Notice to Jenny Craig.
4.2 You may also cancel the Contract at any time during the Program and the provision of the Services by providing a Cancellation Notice to Jenny Craig, if any of the following events occur:
(a) you are diagnosed by a medical practitioner with a physical or mental illness that results in it being detrimental to you to continue on the Program and obtain the Services and you provide us with a medical certificate to this effect; or
(b) Jenny Craig’s Medical Consultant otherwise determines (in its absolute discretion) that your medical circumstances are such that you cannot be accommodated on the Program, or any other Program, and, consequently, that you should not obtain the Services from us;
4.3 If this Contract is cancelled under either clause 4.1 or clause 4.2, Jenny Craig must provide a pro-rata refund of the fees paid by you in connection with the Services, within twenty (20) Business Days of receipt by Jenny Craig of the Cancellation Notice. You acknowledge that Jenny Craig calculates this pro-rata refund according to the total price paid for you for the Services and the number of remaining days or visits in relation to the Services (which may therefore result in your refund being zero).
4.4 If this Contract is cancelled, you may obtain a refund of Products in the following circumstances:
(a) if you have cancelled the Contract under clause 4.1, Jenny Craig must provide you with a refund of the fees paid by you in connection with the Products (other than fresh or frozen foods), within twenty (20) Business Days of receipt by Jenny Craig of the Cancellation Notice, provided that such Products are returned to the Centre unused with the packaging, if any, intact, within the Cooling-Off Period;
(b) if you have cancelled the Contract under clause 4.2, your right to a refund of the fees paid by you for the Products is governed by clause 5.
4.5 If you cancel the Contract under this clause, clause 8.5 will apply.
5. PRODUCT TERMS AND CONDITIONS
5.1 You may place orders for Products at the Centre or online at the Jenny Craig Link (if available).
5.2 All orders are subject to availability of stock and min/max quantities as Jenny Craig decides from time to time.
5.3 Jenny Craig may from time to time alter or vary Products, in its absolute discretion.
5.4 Jenny Craig reserves the right to refuse orders, whether whole or in part, in its absolute discretion, for any reason.
5.5 Subject to clause 4 and the succeeding provisions of this clause 5, orders for Products that have been dispatched by Jenny Craig from a Warehouse cannot be cancelled by you prior to Delivery.
5.6 You must verify the quantity and quality of goods upon delivery and if any of the Products are faulty, you must notify Jenny Craig Care within three (3) Business Days of Delivery. Otherwise you waive any right to reject them.
5.7 Faulty Products must be promptly returned by you to the Centre or the Warehouse (as Jenny Craig determines, in its absolute discretion), and, in any event, by no later than ten (10) Business Days of Delivery. When you return the Products, you must include the following information:
(a) the return authorisation number applicable to the Products that you previously obtained from us;
(b) whether you are requesting a refund or an exchange of the Products;
(c) in the case of an exchange, which Product you would like to exchange for of equal or lesser value; and
(d) your contact details including name and telephone number.
5.8 Jenny Craig will only accept returns of faulty Products in their original packaging, accompanied by the invoice issued by Jenny Craig in connection with that Product.
5.9 When returns of Products are properly completed in accordance with this Contract, Jenny Craig will either (at its election) replace the faulty Products or credit the price of the returned faulty Products to your account with Jenny Craig within twenty (20) Business Days of receipt of the returned faulty Products.
5.10 You cannot refuse to accept Products merely because they are not Delivered by any given date or dates.
5.11 Except as required by law, Jenny Craig will be under no obligation to accept Products returned for any other reason.
5.12 Jenny Craig will endeavour to Deliver Products in a timely manner, however Jenny Craig will not be liable for:
(a) any failure to Deliver or delay in Delivery for any reason;
(b) any damage or loss due to unloading or packaging; or
(c) damage to property caused upon entering premises to provide you with the Products.
6. PAYMENT, RISK AND TITLE
6.1 You must pay for the Products and Services in accordance with these Terms.
6.2 You must pay for the Program in full prior to, or, upon the Start Date.
6.3 The price for Products is that price current at the time of order plus any applicable freight, transport and delivery charges.
6.4 You are also responsible for all duties, taxes (including GST) and clearance charges that may be levied on the Products and Services.
6.5 Title in Products passes to you on payment in full for them.
6.6 Risk in Products passes to you on delivery of the Products to you to the address nominated by you in the order for that Product.
7. YOUR REPRESENTATIONS TO US
7.1 You represent and warrant that:
(a) you are in good health and know of no medical or other reason why you cannot participate in the Program and obtain the Services; and
(b) any questions concerning your health and your ability to participate in the Program have been discussed with your doctor, or will be discussed with your doctor, before you participate in the Program and obtain the Services.
7.2 You acknowledge to, and agree with Jenny Craig, that:
(a) you are responsible for your own health and will inform your doctor and Jenny Craig if you experience any changes in your health while you participate in the Program and obtain the Services; and
(b) you are responsible for, and, will, inform Jenny Craig of any physician-directed exercise modifications or restrictions, all prescription medications, non-prescription medications and diet aids and supplements you are taking and any changes in dosage, on an ongoing basis, during the Program and whilst you obtain the Services; and
(c) neither Jenny Craig nor any of its employees or contractors are health care practitioners or otherwise providing a health service and, consequently, none of them can be expected to diagnose, recognise or treat individual health problems that you may experience (or have experienced) prior to, or, during your participation in the Program and/or whilst you are obtaining the Services.
8. TERM AND TERMINATION
8.1 The Contract commences on the Start Date of signing of the Terms and continues unless cancelled or terminated earlier in accordance with these Terms.
8.2 Subject to clause 4, Jenny Craig may terminate this Contract at any time, if you breach a provision of this Contract and you fail to remedy that breach within ten (10) Business Days of receipt of a written notice from us identifying the breach and requiring it to be remedied.
8.3 We may also terminate this Contract, immediately, upon written notice to you, if you have breached this Contract on 3 occasions or more in any six-month calendar period, or, become bankrupt, or, are otherwise unable to pay your debts as and when they fall due.
8.4 Subject to cluse 4, any termination under this clause 8:
(a) will not afford to you a ground for any claim for a refund, damages, compensation or costs or expenses of any kind; and
(b) shall not prejudice the rights of either party in respect of any antecedent breach of this Contract.
8.5 Upon termination or expiration of this Contract, you agree to return your membership card, your right to use membership benefits associated with the Services will end, and Jenny Craig may deny you access to any Centre unless you enter into another Contract with us (on the then prevailing terms) or purchase an alternative Program then being offered.
9. EXCLUSIONS AND LIMITATIONS
9.1 To the extent permitted by law, Jenny Craig’s only liability is as expressly stated in this Contract and all other guarantees, warranties and conditions are excluded.
9.2 Subject to clause and clause 9.1 and clause 9.3, to the extent permitted by law, Jenny Craig’s liability under this Contract:
(a) as a result of a consumer guarantee implied under the Applicable Consumer Law or any other term, warranty or condition implied by legislation and which cannot be lawfully excluded, is limited to, in the case of Products, in Jenny Craig’s absolute discretion, supplying the Products again or paying the cost of having them supplied again and, in the case of services (if any), supplying the services (if any) again or paying the cost of having them supplied again; and
(b) in any other case, is limited to the cost of the Products.
9.3 To the extent permitted by law, Jenny Craig will not be liable to you (whether in contract, tort, or otherwise) for any consequential, special, incidental or indirect loss or damage including loss of profit.
9.4 To the maximum extent permitted by law, you indemnify and must keep Jenny Craig indemnified against all damages, losses, costs and expenses suffered by Jenny Craig arising out of any breach by you of this Contract or arising out of your use, of the Services.
10.1 This Contract is personal to you and may not be transferred to another person. You may transfer the Services afforded to you under this Contract to any participating Centre.
10.2 Jenny Craig may sub-contract or otherwise arrange for another person to perform any part of this Contract. We agree (and will procure that any sub-contractor agrees) to comply with any statute, order, rule. regulation, subordinate legislation (Law) or any other document (including a policy or procedure) enforceable under any Law relating to the provision of the Services or payment for the Services.
10.3 Jenny Craig waives a right under this Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
10.4 If any provision or part of this Contract is void or unenforceable for any reason, then that provision or part will be severed from this Contract and the rest of this Contract shall be read as far as possible as if the severed provision or part had never existed
10.5 This Contract is governed by and must be construed in accordance with the Governing Law and each party herby submits to the non-exclusive jurisdiction of the Courts of the Governing Law.