Guidelines for Gyms and Fitness Clubs
6. Variation Clauses
Of the contracts reviewed by the National Consumer Agency, a significant number contained what are commonly known as "variation clauses".
A right for one party to alter the terms of the contract, or the service provided, after it has been agreed, is under strong suspicion of unfairness. A contract can be considered balanced only if both parties are bound by their obligations as agreed.
Equally, if a term can be used to force the member to accept increased costs or penalties, new requirements, or reduced benefits it is likely to be considered unfair whether or not it was intended to be used in that way.
A variation clause can upset the legal balance of the contract even though it was intended solely to facilitate minor adjustments, if its wording means it could be used to impose more substantial changes.
Essentially, variation clauses are terms in the contract which allow the supplier to:
- unilaterally change the terms of the contract without a valid reason,
- unilaterally change the service being provided without a valid reason and,
- increase the price without giving the consumer the right to cancel.
These types of terms are referred to at (j), (k) and (l) on the list of 17 potentially unfair terms at Schedule 3. See following examples:
"The management reserve the right to amend and add to these terms and conditions of membership."
Why does the NCA consider this term (example 1) unfair?
The NCA considers this term unfair because it means that the gym can unilaterally alter, without a valid reason, the terms and conditions the member has signed up to.
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