Terms and Conditions
BACKGROUND:
This agreement applies as between you, the User of this Web Site and Gymworld Ltd, the owner(s) of this Web Site. Your agreement to comply with and be bound by these Terms and Conditions is deemed to occur upon your first use of the Web Site.
If you do not agree to be bound by these Terms and Conditions, you should stop using the Web Site immediately.
No part of this Web Site is intended to constitute a contractual offer capable of acceptance. Your order constitutes a contractual offer and our acceptance of that offer is deemed to occur upon our sending a dispatch email to you indicating that your order has been fulfilled and is on its way to you.
Definitions and Interpretation.
In this Agreement the following terms shall have the following meanings:
“Business Day” - any day listed in the following: Monday, Tuesday, Wednesday, Thursday, Friday.
“Business Hours” - means for the purposes of any correspondence, Business Hours are 09:00 until 17:00 on any given Business Day.
“Carrier” - any third party responsible for transporting purchased Goods from our Premises to customers;
“Content” - any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on or forms part of this Web Site;
“Goods” - any products that Gymworld Ltd advertises and / or makes available for sale through this Web Site;
“Gymworld Ltd” - Gymworld Ltd 57 Plane Street, Oldham, Lancashire OL4 2BX;
“Service” - collectively any online facilities, tools, services or information that Gymworld Ltd makes available through the Web Site either now or in the future;
“Payment Information” - any details required for the purchase of Goods from this Web Site. This includes, but is not limited to, credit / debit card numbers, bank account numbers and sort codes;
“Purchase Information” - collectively any orders, invoices, dispatch notes, receipts or similar that may be in hard copy or electronic form;
“Premises” - our place(s) of business located at 57 Plane Street, Oldham, Lancashire OL4 2BX
“System” - any online communications infrastructure that Gymworld Ltd makes available through the Web Site either now or in the future. This includes, but is not limited to, web-based email, message boards, live chat facilities and email links;
“User” / “Users” - any third party that accesses the Web Site and is not employed by Gymworld Ltd and acting in the course of their employment;
“Web Site” - the website that you are currently using (www.gymworld.co.uk) and any sub-domains of this site (e.g. subdomain.www.gymworld.co.uk) unless expressly excluded by their own terms and conditions.
2. Age Restrictions
Persons under the age of 18 should use this Web Site only with the supervision of an Adult. Payment Information must be provided by or with the permission of an Adult.
3. Business Customers
These Terms and Conditions do not apply to customers buying Goods in the course of business, see our TERMS OF SALE below which apply to Business to Business transactions.
4. International Consumers and Business Customers and goods sold for use outside of Mainland GB, including Isle of Man, Shetlands, Scilly Isles, Channel Islands, Isle of Wight, Northern Ireland, Ireland.
1. If Goods are being ordered from outside Gymworld Ltd’s country of residence, import duties and taxes may be incurred once your Goods reach their destination. Gymworld Ltd is not responsible for these charges and we undertake to make no calculations or estimates in this regard. If you are buying internationally, you are advised to contact your local customs authorities for further details on costs and procedures. As the purchaser of the Goods, you will also be the importer of record and as such should ensure that your purchase is in full compliance with the laws of the country into which the Goods are being imported. Please be aware that Goods may be inspected on arrival at port for customs purposes and Gymworld Ltd cannot guarantee that the packaging of your Goods will be free of signs of tampering. The Buyer shall be responsible for arranging for testing and inspection of the Goods at Gymworld’s premises before shipment.
Gymworld shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
2. The cost of transporting your purchase out of Mainland GB will be the responsibility of the buyer.
3. On site servicing is not available for international purchases. Where a warranty is offered covering parts, any defective part may be be returned to Gymworld for inspection and repair or replacment. You are responsible for all carriage costs.
4. If a service or repair is required it may be possible to arrange this by returning the equipment to us. All transport costs are your responsibility. If the purchase included a warranty covering labour cost for the repair of a fault this will apply if the warranty is still valid. If the cost of repair or service is not covered under a warranty you will be responsible for all costs.
5. Unauthorised returns will not be accepted.
6. Intellectual Property
1. Subject to the exceptions in Clause 6 of these Terms and Conditions, all Content included on the Web Site, unless uploaded by Users, including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software is the property of Gymworld Ltd, our affiliates or other relevant third parties. By continuing to use the Web Site you acknowledge that such material is protected by applicable United Kingdom and International intellectual property and other laws.
2. Subject to Clause 7 you may not reproduce, copy, distribute, store or in any other fashion re-use material from the Web Site unless otherwise indicated on the Web Site or unless given express written permission to do so by Gymworld Ltd.
6. Third Party Intellectual Property
1. Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in product images and descriptions belong to the manufacturers or distributors of such products as may be applicable.
2. Subject to Clause 7 you may not reproduce, copy, distribute, store or in any other fashion re-use such material unless otherwise indicated on the Web Site or unless given express written permission to do so by the relevant manufacturer or supplier.
7. Fair Use of Intellectual Property
Material from the Web Site may be re-used without written permission where any of the exceptions detailed in Chapter III of the Copyright Designs and Patents Act 1988 apply.
8. Links to Other Web Sites
This Web Site may contain links to other sites. Unless expressly stated, these sites are not under the control of Gymworld Ltd or that of our affiliates. We assume no responsibility for the content of such web sites and disclaim liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another site on this Web Site does not imply any endorsement of the sites themselves or of those in control of them.
9. Links to this Web Site
Those wishing to place a link to this Web Site on other sites may do so only to the home page of the site www.gymworld.co.uk without prior permission. Deep linking (i.e. links to specific pages within the site) requires the express permission of Gymworld Ltd. To find out more please contact us by email at legal@gymworld.co.ukor 57 Plane Street, Oldham, Lancashire OL4 2BX Telephone 0800 018 5294
10. Use of Communications Facilities
1. When using the enquiry form or any other System on the Web Site you should do so in accordance with the following rules:
1.1 You must not use obscene or vulgar language.
1.2 You must not submit Content that is unlawful or otherwise objectionable. This includes, but is not limited to, Content that is abusive, threatening, harassing, defamatory, ageist, sexist or racist.
1.3 You must not submit Content that is intended to promote or incite violence.
1.4 It is advised that submissions are made using the English language(s) as we may be unable to respond to enquiries submitted in any other languages.
1.5 The means by which you identify yourself must not violate these terms of use or any applicable laws.
1.6 You must not impersonate other people, particularly employees and representatives of Gymworld Ltd or our affiliates.
1.7 You must not use our System for unauthorised mass-communication such as “spam” or “junk mail”
2. You acknowledge that Gymworld Ltd reserves the right to monitor any and all communications made to us or using our System.
11. Termination and Cancellation
1. Gymworld Ltd reserves the right to cancel purchases without stating reasons, for any reason prior to processing payment and dispatch.
2. If purchases are cancelled for any reason prior to dispatch you will be refunded any monies paid in relation to those purchases.
3. If you terminate your Account any non-dispatched purchases will be cancelled and you will be refunded any monies paid in relation to those purchases.
12. Goods, Pricing and Availability
1. Whilst every effort has been made to ensure that all graphical representations and descriptions of Goods available from Gymworld Ltd correspond to the actual Goods, Gymworld Ltd is not responsible for any variations from these descriptions. This does not exclude our liability for mistakes due to negligence on our part and refers only to variations of the correct Goods, not different Goods altogether. Please refer to Clause
15.1 for incorrect Goods.
2. Where appropriate, you may be required to select the required [size] [model] [colour] [number] [other features] of the Goods that you are purchasing.
Gymworld Ltd does not represent or warrant that such Goods will be available. Stock indications are provided on the Web Site howerver these may not take into account sales that have taken place during your visit to the web site.
3. All pricing information on the Web Site is correct at the time of going online. Gymworld Limited reserves the right to change prices and alter or remove any special offers from time to time and as necessary. All pricing information is reviewed and updated every 10 Days. Price Matching may not be available when purchases involve finance or leasing schemes. Price Matching is done at the discretion of Gymworld Limited.
4. In the event that prices are changed during the period between an order being placed for Goods and Gymworld Ltd processing that order and taking payment, you will be contacted prior to your order being processed with details of the new price.
5. All prices on the Web Site include VAT. Gymworld Ltd’s VAT number is 693688174.
6. Free Gifts and Free Accessories are subject to availability and in some instances may be delivered by different carriers to your main purchase and may arrive on a different day. Please make sure that if there's a free gift on offer that you select it when you place your order. We will charge delivery if we have to send a free gift because it was missed at the point of order. FREE GIFTS and FREE ACCESSORIES ARE NOT EXCHANGEABLE FOR A CASH EQUIVALENT DISCOUNT, unless Gymworld is not able to supply the selected free item or a replacement deemed by us to be a suitable alternative. If a Free Gift or Free Accessory that is chosen is not available we reserve the right to substitute an alternative item which we say is a suitable alternative.
13. Delivery
1. Gymworld Ltd will notify you by way of email when your goods are to be dispatched to you. The message will contain details of estimated delivery times in addition to any reasons for a delay in the delivery of the Goods purchased by you.
If Gymworld Ltd receives no communication from you, within 14 days of delivery, regarding any problems with the Goods, you are deemed to have received the Goods in full working order and with no problems.
Next Day Delivery - If your order is placed after 12 noon [11am on some products] on any of Friday (excluding bank holidays) and you have selected next day delivery, then the term next day will refer to to the following Tuesday.
2. All delivery times are best estimate and non contractual.
3. "Free Delivery" and "Free Installation" only apply to addresses on Mainland GB (We are happy to quote for delivery offshore and overseas, including Ireland, Northern Ireland, Isle of Man, and other islands. We can also quote for deliveries further afield, i.e. European countries etc).
4. Chargeable Delivery as displayed on the website against a product (or as quoted during telephone orders for mainland GB deliveries) covers delivery only to an address on the GB Mainland at street level.
5. Where the delivery of the purchase involves steps, stairs, ramps, lifts to the threshold of the buyer`s delivery address the buyer accepts that the delivery option they have chosen, whether "Free" or paid for by them, only covers delivery of their purchase to the most suitable and safe street level location at the time of delivery and that the buyer accepts responsibility for handling their purchase from that delivery point. Any assistance beyond this point that is offered by the carrier or delivery company is at their discretion.
6. Installation service is restricted to mainland GB and is not currently available to the Highlands of Scotland, and that Gymworld Ltd reserves the right to withdraw the service in the interests of health and safety or commercial viability if delivery and/or installation is affected by such things as adverse weather, unsafe or difficult access either within the property or en route there. Delivery and Installation times are best estimate and non contractual.
14 Returns Policy
Gymworld Ltd aims to always provide high quality Goods that are fault free and undamaged. On occasion however, goods may need to be returned. Returns are governed by these Terms and Conditions.
1. If you receive Goods which do not match those that you ordered, unless accompanied by an explanatory note detailing the changes, stating reasons for the changes and setting out your options, you should contact us within 7 days to arrange collection and return. Gymworld Ltd is responsible for paying shipment costs. You will be given the option to have the Goods replaced with those ordered (if available) or to be refunded through the payment method used by you when purchasing the Goods. Payments are refunded in full within 30 days.
2. If any Goods you have purchased have faults when they are delivered to you, you should contact Gymworld Ltd within 28 days to arrange collection and return. Gymworld Ltd is responsible for paying shipment costs. Goods must be returned in their original condition with all packaging and documentation. Upon receipt of the returned Goods, the price of the Goods, as paid by you, will be refunded to you through the payment method used by you when purchasing the Goods.
3. If any Goods develop faults within their warranty period, you are entitled to a repair or replacement under the terms of that warranty. Your warranty is with the manufacturer of said Goods, not with Gymworld Ltd. Gymworld Ltd are under no obligation to repair or service a product purchased from Gymworld Ltd.
4. If Goods are damaged in transit and the damage is apparent on delivery, you should sign the delivery note to the effect that the goods have been damaged. In any event, you should report such damage to Gymworld Ltd within 10 days and arrange collection and return. Gymworld Ltd is responsible for paying shipment costs. Upon receipt of the returned Goods, the price of the Goods, as paid by you, will be refunded to you through the payment method used by you when purchasing the Goods.
5. Distance Selling Regulations (DSR) state that the consumer has the right to ‘cancel’ the contract at any time up to ‘7 working days starting the days after the Goods have been delivered’. If you change your mind about the goods within this period, you must notify us by email or letter within this time scale. We will acknowledge your communication and authorise you to return them to Gymworld Ltd. You are responsible for paying shipment costs if Goods are returned for this reason. Please note that you have a duty of care for your products within this “cooling off” period. If you cause damage, or by your actions damage is caused to the product prior to returning to Gymworld, we reserve the right to charge for any damage caused.
6. If you wish to return Goods to Gymworld Ltd for any of the above reasons, please contact us using the details on the Contact Us page to make the appropriate arrangements.
7. Gymworld Ltd reserves the right to exercise discretion with respect to any returns under these Terms and Conditions. Factors which may be taken into account in the exercise of this discretion include, but are not limited to:
7.1 Any use or enjoyment that you may have already had out of the Goods.
7.2 Any characteristics of the Goods which may cause them to deteriorate or expire rapidly.
7.3 The fact that the Goods consist of audio or video recordings or computer software and that the packaging has been opened.
7.4 Any discounts that may have formed part of the purchase price of the Goods to reflect any lack of quality made known to the Customer at the time of purchase.
Such discretion to be exercised only within the confines of the law.
8. Unauthorised returns will not be accepted.
15. Privacy
Use of the Web Site is also governed by our Privacy Policy which is incorporated into these terms and conditions by this reference. To view the Privacy Policy, please click on the link above.
16. Disclaimers
1. Gymworld Ltd makes no warranty or representation that the Web Site will meet your requirements, that it will be of satisfactory quality, that it will be fit for a particular purpose, that it will not infringe the rights of third parties, that it will be compatible with all systems, that it will be secure and that all information provided will be accurate. We make no guarantee of any specific results from the use of our Services.
2. No part of this Web Site is intended to constitute advice and the Content of this Web Site should not be relied upon when making any decisions or taking any action of any kind.
3. Except in respect of death or personal injury caused by Gymworld’s negligence, or liability for defective products under the Consumer Protection Act 1987, Gymworld shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Gymworld, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of Gymworld under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
3. No part of this Web Site is intended to constitute a contractual offer capable of acceptance.
17. Changes to the Service and these Terms and Conditions
Gymworld Ltd reserves the right to change the Web Site, its Content or these Terms and Conditions at any time. You will be bound by any changes to the Terms and Conditions from the first time you use the Web Site following the changes. If Gymworld Ltd is required to make any changes to Terms and Conditions relating to sale of Goods by law, these changes will apply automatically to any orders currently pending in addition to any orders placed by you in the future.
18. Availability of the Web Site
The Service is provided “as is” and on an “as available” basis. We give no warranty that the Service will be free of defects and / or faults. To the maximum extent permitted by the law we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality.
Gymworld Ltd accepts no liability for any disruption or non-availability of the Web Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and censorship.
19. Limitation of Liability
1. To the maximum extent permitted by law, Gymworld Ltd accepts no liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising from the use of the Web Site or any information contained therein. Users should be aware that they use the Web Site and its Content at their own risk.
2. Whilst every effort has been made to ensure that these terms and conditions adhere strictly with the relevant provisions of the Unfair Contract Terms Act 1977, in the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these terms and conditions and shall not affect the validity and enforceability of the remaining terms and conditions. This term shall apply only within jurisdictions where a particular term is illegal.
20. No Waiver
In the event that any party to these Terms and Conditions fails to exercise any right or remedy contained herein, this shall not be construed as a waiver of that right or remedy.
21. Previous Terms and Conditions
In the event of any conflict between these Terms and Conditions and any prior versions thereof, the provisions of these Terms and Conditions shall prevail unless it is expressly stated otherwise.
22. Notices
All notices / communications shall be given to us either by post to our Premises (see address above) or by email to legal@gymworld.co.uk. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday. For any return correspondence, please refer to the definition of our business days in Section 1. Definitions and Interpretation.
23. Law and Jurisdiction
These terms and conditions and the relationship between you and Gymworld Ltd shall be governed by and construed in accordance with the Law of England and Wales and Gymworld Ltd and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
TERMS OF SALE (Applying to Business to Business Transactions)
1 Interpretation
1.1 In these TERMS OF SALE
“Buyer” means the person who accepts Gymworld’s written quotation for the sale of the Goods or whose Written order for the Goods is accepted by Gymworld;
“Goods” means the goods (including any instalment of the goods or any parts for them) which Gymworld is to supply in accordance with these Terms;
“Contract” means the contract for the sale and purchase of the Goods;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and Gymworld;
“Writing” and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 Gymworld shall sell and the Buyer shall purchase the Goods in accordance with Gymworld’s Written quotation (if accepted by the Buyer), or the Buyer’s Written order (if accepted by Gymworld), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and Gymworld.
2.3 Gymworld’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Gymworld in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by Gymworld or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by Gymworld is followed or acted on entirely at the Buyer’s own risk, and accordingly Gymworld shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Gymworld shall be subject to correction without any liability on the part of Gymworld.
3 Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by Gymworld unless and until confirmed in Writing by Gymworld’s authorised representative.
3.2 The Buyer shall be responsible to Gymworld for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Gymworld any necessary information relating to the Goods within a sufficient time to enable Gymworld to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in Gymworld’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by Gymworld).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by Gymworld in accordance with a specification submitted by the Buyer, the Buyer shall indemnify Gymworld against all loss, damages, costs and expenses awarded against or incurred by Gymworld in connection with, or paid or agreed to be paid by Gymworld in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Gymworld’s use of the Buyer’s specification.
3.5 Gymworld reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to Gymworld’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by Gymworld may be cancelled by the Buyer except with the agreement in Writing of Gymworld and on terms that the Buyer shall indemnify Gymworld in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Gymworld as a result of cancellation.
4 Price of the goods
4.1 The price of the Goods shall be Gymworld’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Gymworld’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, Gymworld’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by Gymworld without giving notice to the Buyer.
4.2 Gymworld reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Gymworld which is due to any factor beyond the control of Gymworld (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Gymworld adequate information or instructions.
4.3 Except as otherwise stated in Gymworld’s Written quotation or in any price list of Gymworld, and unless otherwise agreed in Writing between the Buyer and Gymworld, all prices are given by Gymworld on an ex works basis, and where Gymworld agrees to deliver the Goods otherwise than at Gymworld’s premises, the Buyer shall be liable to pay Gymworld’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Gymworld.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to Gymworld before the due payment date.
5 Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and Gymworld, Gymworld may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event Gymworld shall be entitled to invoice the Buyer for the price at any time after Gymworld has notified the Buyer that the Goods are ready for collection or (as the case may be) Gymworld has tendered delivery of the Goods.
5.2 Provided no previous invoice is overdue, the Buyer shall be entitled to a prompt payment discount of zero per cent of the price of the Goods (excluding any charge for transport, packaging or insurance) for payment within 14 days of the date of Gymworld’s invoice.
5.3 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of Gymworld’s invoice, and Gymworld shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.
5.4 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to Gymworld, Gymworld may:
5.4.1 cancel the contract or suspend any further deliveries to the Buyer.
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Gymworld) as Gymworld may think fit (notwithstanding any purported appropriation by the Buyer) and;
5.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above HSBC Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at Gymworld’s premises at any time after Gymworld has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Gymworld, by Gymworld delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and Gymworld shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Gymworld in Writing. The Goods may be delivered by Gymworld in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where delivery of the Goods is to be made by Gymworld in bulk, Gymworld reserves the right to deliver up to two per cent more or two per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Gymworld to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If Gymworld fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Gymworld’s reasonable control or the Buyer’s fault, and Gymworld is accordingly liable to the Buyer, Gymworld’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give Gymworld adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Gymworld’s fault) then, without limiting any other right or remedy available to Gymworld, Gymworld may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at Gymworld’s premises, at the time when Gymworld notifies the Buyer that the Goods are available for collection;
or
7.1.2 in the case of Goods to be delivered otherwise than at Gymworld’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Gymworld has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until Gymworld has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Gymworld to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Gymworld’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Gymworld’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), Gymworld may at any time require the Buyer to deliver up the Goods to Gymworld and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Gymworld, but if the Buyer does so all moneys owing by the Buyer to Gymworld shall (without limiting any other right or remedy of Gymworld) forthwith become due and payable.
8 Warranties and liability
8.1 Subject to the following provisions, Gymworld warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from the date of their initial use or twelve months from delivery, whichever is the first to expire.
8.2 The above warranty is given by Gymworld subject to the following conditions:
8.2.1 Gymworld shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 Gymworld shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Gymworld’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without
Gymworld’s approval;
8.2.3 Gymworld shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by Gymworld, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Gymworld.
8.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms.
8.5 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to Gymworld within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Gymworld accordingly, the Buyer shall not be entitled to reject the Goods and Gymworld shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to Gymworld in accordance with these Terms, Gymworld may replace the Goods (or the part in question) free of charge or, at Gymworld’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case Gymworld shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by Gymworld’s negligence, or liability for defective products under the Consumer Protection Act 1987, Gymworld shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Gymworld, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of Gymworld under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
8.8 Gymworld shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Gymworld’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Gymworld’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Gymworld’s reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Gymworld or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9 Indemnity
9.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Buyer, Gymworld shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 Gymworld is given full control of any proceedings or negotiations in connection with the claim;
9.1.2 the Buyer shall give Gymworld all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the consent of Gymworld (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 Gymworld shall be entitled to the benefit of, and the Buyer shall accordingly account to Gymworld for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without limiting any duty of the Buyer at common law, Gymworld may require the Buyer to take such steps as Gymworld may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Gymworld is liable to indemnify the Buyer under this clause.
10 Insolvency of buyer
10.1 This clause 10 applies if:
10.1.1 the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986);
or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 Gymworld reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without limiting any other right or remedy available to Gymworld, Gymworld may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Export terms
11.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of INCOTERMS shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Buyer and Gymworld) apply notwithstanding any other provision of these Terms.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.4 Unless otherwise agreed in Writing between the Buyer and Gymworld, the Goods shall be delivered fob the air or sea port of shipment and Gymworld shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at Gymworld’s premises before shipment. Gymworld shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.6 Unless otherwise required by Gymworld, payment of all amounts due to Gymworld shall be made by an irrevocable letter of credit, in a form acceptable to Gymworld, to be opened by the Buyer in favour of Gymworld and confirmed by a bank in the United Kingdom acceptable to Gymworld within 14 days after the Contract is concluded.
12 General
12.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by Gymworld of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
12.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
Revised Terms and Conditions 31/01/11
