Terms & Conditions

 

 

1. INTERPRETATION

 

1.1    The contract of sale concluded between the Purchaser and the Seller in respect of the Equipment shall be subject to these Terms and Conditions.

1.2    These Terms and Conditions are to be read in conjunction with the Quotation and the Warranty Terms & Conditions.

1.3    Any reference to Days in these Terms and Conditions shall be understood to refer to business days.

1.4    For the purposes of these Terms and Conditions, unless the context requires otherwise:

1.4.1      “Agreement” means the agreement of sale between the Purchaser and the Seller that is subject to these Terms and Conditions;

1.4.2      “the Consumer Protection Act” means the Consumer Protection Act 68 of 2008, as amended from time to time;

1.4.3      “Delivery Address” means the delivery address listed as such in the Quotation;

1.4.4      “Designated Zone” means a major city centre within South Africa, namely Johannesburg, Pretoria, Cape Town, Gqeberha, East London and Durban;

1.4.5      “Equipment” means the gym equipment indicated in the Quotation attached hereto;

1.4.6      “Handling Fee” means an amount that is equal to ten percent (10%) of the Purchase Price of the Equipment, VAT excluded;

1.4.7      “Lead-Time” means, in the case of cardio-vascular Equipment a period of eight (8) to twelve (12) consecutive weeks after payment of the deposit and in the case of strength Equipment, a period of eight (8) to twelve (12) consecutive weeks after payment of the deposit;

1.4.8      “Parties” means the Purchaser and the Seller, and shall, if the context requires, be a reference to either one of them;

1.4.9      “POPI Act” means the Protection of Personal Information Act of 2013, as amended from time to time;

1.4.10     “Purchaser” means the Party to whom the Quotation is addressed;

1.4.11     “Purchase Price” means the price quoted in the Quotation attached hereto;

1.4.12     “Quotation” means the document attached hereto that sets out the Parties’ details, the Equipment and the Purchase Price;

1.4.13     “Seller” means Express Fitness Urban (Pty) Ltd (Registration number 2015/116445/07);

1.4.14     “Seller’s Bank Account” means the Seller’s bank account listed as such on the Quotation;

1.4.15     “South Africa” means the Republic of South Africa;

1.4.16     “Terms and Conditions” means the standard conditions of sale set out in this document together with the Quotation and any attached annexures;

1.4.17      “Travelling Costs” means the travelling costs payable as per the rates reflected on the Quotation in respect of deliveries made within the Designated Zones;

1.4.18     “Warranty Policy” means the Seller’s service plan and/or warranty terms & conditions linked hereto or as otherwise made available to the Purchaser.

 

2. SALE OF EQUIPMENT

 

2.1    The Purchaser wishes to purchase and the Seller hereby agrees to sell to the Purchaser, the Equipment at the Purchase Price on the Terms and Conditions recorded hereunder.

 

3. PAYMENT

 

3.1    Within forty-eight (48) hours of accepting the Quotation, the Purchaser shall be required to pay fifty percent (50%) of the Purchase Price of the Equipment upfront, as a deposit. This deposit shall be non-refundable, except in the circumstances provided for in clause 8.

3.2    Payment shall be made into the Seller’s Bank Account, with the Purchaser’s name serving as a reference and proof of payment shall be emailed to the Seller.

3.3    The Seller shall not order or take any steps towards procuring the Equipment for the Purchaser, until the deposit referred to in clause 3.1 has been paid and the Purchaser has furnished the Seller with proof of payment.

3.4    Once the required proof of payment is received by the Seller, the Seller shall as soon as reasonably possible procure the Equipment from its supplier.

3.5    The Purchaser shall pay the balance of the Purchase Price within ten (10) Days of receiving written notification from the Seller that the Equipment is ready for delivery or collection.

3.6    Delivery and installation of the Equipment shall not be made until the Purchaser has paid the Purchase Price in full into the Seller’s Bank Account, unless otherwise agreed in writing between the Parties.

3.7     The Purchaser shall not be entitled to set off or withhold payment of the balance of the Purchase Price, against sums owed or alleged to be owed by the Seller to the Purchaser.

 

4. DELIVERY OR COLLECTION

 

4.1    Deliveries shall be made by the Seller to the Delivery Address referred to in the attached Quotation within thirty (30) days of the date on which the Purchaser furnishes the Seller with proof that the full Purchase Price has been paid.

4.2    The Seller shall provide the Purchaser with forty-eight (48) hours advance notification of delivery.

4.3    Deliveries within South Africa shall be made Mondays to Fridays, on business days, inclusive.

4.4    The Purchaser shall bear the Travelling Costs incurred in delivering the Equipment to the Delivery Address.

4.5    If the Delivery Address is outside a Designated Zone, the Purchaser can elect to collect the Equipment, or the Purchaser can arrange for the delivery of the Equipment, in which case the Seller shall provide an estimate of its Travelling Costs.   The Purchaser shall inform the Seller whether the Equipment will be collected or must be delivered at the time when it pays the balance of the Purchase Price. The equipment must be installed by Express Fitness Urban or its designated / accredited technician for the Equipment warranty to apply.

4.6    The Seller shall not release the Equipment to the Customer or its agent, until the Purchaser has paid the Purchase Price in full.

4.7    The Seller shall not be liable for the labour costs incurred in installing the Equipment within the Designated Zones.

 

5. OWNERSHIP AND RISK

 

5.1    Delivery shall be effected and risk and ownership shall pass to the Purchaser when the Equipment is delivered by the Seller to the Delivery Address, the Purchaser having paid the Purchase Price in full plus Travelling Costs, installation or any other costs.  Alternatively, delivery shall be effected and risk and ownership shall pass when the Equipment is collected from the Seller by the Purchaser or its agent, the Purchaser having settled all the aforementioned costs.

5.2    In the event that the paintwork on the Equipment is scratched during transit and delivery, then the Seller undertakes to touch up the paintwork on the Equipment within fourteen (14) days of delivery.

5.3    Failure by the Purchaser to take delivery of the Equipment on the date on which it received notification that delivery shall take place, shall entitle the Seller to store the Equipment at the cost and risk of the Purchaser, until such time as delivery has been made and all costs settled in full.

 

6. DUTIES OF THE PURCHASER

 

The Purchaser shall:

6.1    Make payment of the Purchase Price in full as required according to these Terms and Conditions.

6.2    Ensure that the area where the Equipment is to be installed is cleared and prepared prior to installation and delivery.

6.3    Remove all fragile items in the path of any Equipment that is being delivered and/or cover and protect any staircases, wooden or marble flooring or other fittings that could be damaged in moving the Equipment, before the Seller installs the Equipment.

6.4    Be available to take delivery of the Equipment at the agreed place and time, as arranged in terms of clause 4.1.

6.5    Inspect the Equipment immediately after installation, together with the Seller’s technician who installed the Equipment, and be satisfied that the Equipment is in good working condition and that there are no visible defects, scratches or damage to the Equipment, in which case the Purchaser and the Seller’s technician shall sign the delivery invoice or note to this effect. If the Purchaser is not so satisfied, it must report its dissatisfaction in writing to the Seller within twenty-four (24) hours of delivery, setting out the reason/s why it is not so satisfied.  Should the Purchaser not be satisfied at the time of hand-over, the Seller’s technician shall be entitled to load and remove the rejected Equipment for further inspection, repair or replacement.

 

7. DUTIES OF THE SELLER

 

The Seller shall:

7.1    To the best of its ability, procure the Equipment within the Lead-Time, subject to the condition it shall not be bound by the estimated time periods as they may vary due to circumstances outside of the Seller’s control

7.2    Exercise reasonable care in the delivery and installation of the Equipment

7.3    On delivery, install, test and inspect the Equipment together with the Purchaser, to ensure it is in working condition and that there are no visible defects or scratches on the Equipment. If the Purchaser is not so satisfied, the Seller’s technician shall make an inventory of any damage or defects, which shall be signed by the technician and the Purchaser, subject to the provisions contained in clause 6.5 above.

7.4     Install the Equipment that was collected by the Purchaser or its agent at a time convenient to both Purchaser and Seller.

 

8. RETURN OF GOODS

 

Notwithstanding anything to the contrary in these Terms and Conditions, the Seller may, entirely at its discretion and in exceptional circumstances only, permit cancellation of the Agreement and/or refund the deposit, subject to the payment by the Purchaser of a Handling Fee.

 

9. REPAIRS AND MAINTENANCE

 

9.1    The Purchaser shall only use the Equipment as per manufacturers’ specifications and shall not alter or modify the Equipment in any manner whatsoever in order not to vitiate any applicable service plan or Warranty Policy.

9.2    The Purchaser shall, if applicable, service and maintain the Equipment as per manufacturers’ or the Seller’s specifications or requirements, or in terms of the Warranty Policy.

9.3    The Seller shall be entitled to charge a Call-Out Cost in regard to the inspection, repairs to or servicing of any Equipment, along with any labour or parts costs, subject to the provisions contained in the Seller’s service plan or Warranty Policy.

9.4    Any repairs to or servicing of any Equipment shall only be attended to by a technician approved and appointed by the Seller, failing which the Seller shall accept no responsibility or liability in respect of the Equipment in question.

 

10. SALE OF EQUIPMENT TO A THIRD PARTY

 

In the event that the Purchaser sells the Equipment to a third party, the Purchaser shall notify the Seller in writing of the sale and provide details of the purchaser. The terms of such sale shall be subject to the Seller’s service plan and Warranty Policy, meaning the service plan and Warranty Policy shall only be transferred to the third party purchaser with the Seller’s prior written consent.

 

11. FORCE MAJEURE

 

11.1    Despite any other provision in these Terms and Conditions, the Seller shall not be liable for any loss or expense caused by delayed performance of its obligations if this is due to any cause beyond its reasonable control, including, without limitation war, riot, natural disaster, or delayed performance by the Seller’s supplier.

11.2    The Seller undertakes to notify the Purchaser promptly if it determines it is unable to act, to make all reasonable efforts to avoid or remove the cause of non-performance and to continue performance promptly once the impossibility ceases.

11.3    In the event that the impossibility continues for a period in excess of one hundred and eighty (180) days from the date on which the deposit was paid in terms of clause 3.1, the Purchaser shall have the right to cancel the Agreement on written notice to the Seller, and shall be entitled to a full refund of the deposit, provided the Equipment or any part thereof has not yet been delivered to the Purchaser.

 

12. LIABILITY

 

12.1    Provided that it exercised reasonable care, the Seller shall not be liable for any damage to the property of the Purchaser or of any third party, or for any injury, death or bodily harm to the Purchaser in delivering and installing the Equipment, or in respect of the use thereof.

12.2    The Seller’s liability in terms of these Terms and Conditions shall not exceed the Purchase Price of the Equipment in respect of any claims that may arise from any reckless or negligent acts or omissions of the Seller in delivering or installing the Equipment, or in respect of claims arising from breach of the Warranty Policy.

12.3    Any such claim against the Seller must be brought to the Seller’s attention by means of a written notice by the Purchaser setting out the details of the claim, within three (3) months of the claim arising and legal proceedings must be instituted within a further three (3) months thereafter, regard being had to the provisions contained in clause 15 below.

12.4    Subject to clause 12.2 and unless the Seller could have reasonably foreseen and prevented the resulting loss or damage, the Seller shall not be liable for any damage to property, death, bodily injury or economic loss, that arises directly or indirectly from the use of the Equipment and the Purchaser indemnifies the Seller accordingly.  The Seller shall not under any circumstances be liable for any indirect or consequential losses or damages howsoever caused or arising.

 

13. TERMINATION AND BREACH

 

13.1    If either Party breaches these Terms and Conditions, the innocent Party must give ten (10) Days’ written notice to the Party in default calling on it to remedy the breach, whereafter the innocent Party shall have the right to cancel the Agreement on written notice thereof and institute a claim for damages.

13.2    Without limiting the remedies provided for in clause 13.1, in the event that the Purchaser fails to meet its payment obligations, the Seller shall give written notice to the Purchaser calling on it to make payment as required in terms of these Terms and Conditions. If the Purchaser does not make payment or otherwise perform this Agreement within ten (10) Days, ownership shall remain vested in the Seller and the Seller shall have the right to retake possession and sell the Equipment in order to defray any expenses incurred by the Seller in the procurement of the Equipment.

 

14. DOMICILIA AND NOTICES

 

14.1    The addresses of the Parties set out in the Quotation shall constitute the domicilium citandi et executandi of each of the Parties for the purpose of giving notice in terms of these Terms and Conditions.

14.2    A Party may at any time, or from time to time, notify the other Party of an alternative address, email or telefax number. Once fourteen (14) Days after the receipt of such notice has elapsed, any such amended address shall constitute the domicilium citandi et executandi, email and telefax number of the notifying Party.

 

15. DISPUTE RESOLUTION

 

15.1    In the event that a dispute arises out of the interpretation, application or termination of these Terms and Conditions, and the dispute remains unresolved through negotiation, the Parties agree that they shall refer the dispute to final and binding private arbitration under the auspices of the Arbitration Foundation of Southern Africa (AFSA), as per AFSA’s Rules.

15.2    Either Party may refer a dispute to arbitration by giving the other Party written notice of their intention to do so.

15.3    The Parties shall appoint a single arbitrator by mutual agreement, however, should they fail to do so within five (5) Days of the notice referred to in clause 15.2, the appointment shall be made by AFSA on application from either Party.  The arbitration shall be conducted and completed in Johannesburg at a venue to be determined by the Seller.

15.4    Unless otherwise agreed in writing, the unsuccessful party shall bear the arbitrator’s costs as well as any costs incurred in conducting the arbitration proceedings.

15.5    Nothing in this clause shall preclude either Party from seeking interim and/or urgent relief from the South Gauteng Division of the High Court, to which jurisdiction the Parties consent.

 

16. CONSUMER PROTECTION ACT

 

In so far as the provisions of the Consumer Protection Act apply to the Seller, then the provisions of these Terms and Conditions shall be read in conjunction with the provisions of the Consumer Protection Act and to the extent that there is any conflict between the terms of these Terms and Conditions and the provisions of the Consumer Protection Act, or to the extent that the provisions of the Consumer Protection Act are more favourable, then the provisions of the Consumer

Protection Act shall prevail.

 

17. PROTECTION OF PERSONAL INFORMATION ACT AND COMMUNICATION

 

17.1    The Seller acknowledges that the Purchaser’s personal information may be private and confidential.  The Seller shall protect such information, shall adhere to the provisions contained in the POPI Act and shall not process the Purchaser’s personal information or otherwise deal with the Purchaser’s personal information in a manner contrary to the provisions contained in the POPI Act or in this Agreement.

17.2    The Seller shall comply with any applicable legislation regarding electronic communications with the Purchaser, provided that any contractual documentation exchanged between the Parties shall be required to be signed by both Parties in hard-copy format in order to be valid and enforceable.

 

18. GENERAL

 

18.1    These Terms and Conditions shall be subject to the laws of South Africa.

18.2    These Terms and Conditions, the Quotation and any annexures attached hereto, constitute the sole record of the agreement of the Parties in relation to the sale and purchase of the Equipment, and neither Party shall be bound by any representation, promise or warranty not recorded in these documents.

18.3    No addition, variation, amendment, cession or assignment, novation or cancellation of these Terms and Conditions shall be of any force or effect unless it is in writing and signed by or on behalf of both Parties.

18.4    The provisions in these Terms and Conditions are to be considered severable, and in the event that any provision should become unenforceable, the remaining provisions of these Terms and Conditions shall continue to be of binding force and effect. Notwithstanding the aforegoing, in the event that any provision in these Terms and Conditions is found to be unenforceable, that provision shall nevertheless be enforced to such lesser extent as may be determined and shall be interpreted accordingly, in order to give effect to the imports and intentions contained in this Agreement.

18.5    Any Party who successfully enforces its rights in terms of these Terms and Conditions against the other Party, shall be entitled to recover from the other Party all costs, charges and expenses of any nature, which may have been incurred in enforcing its rights, including legal costs on the scale of attorney and client, irrespective of whether any action has been instituted, and such costs shall be payable on demand.  The Seller’s liability to the Purchaser however shall not, in aggregate, exceed the value of the purchase order or quotation for the Equipment.

 

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