Terms & Conditions
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 Policy attached as annexures hereto.
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 and any regulations published in terms thereof;
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, Port Elizabeth, 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 six (6) to eight (8) 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. “Purchaser” means the Party to whom the Quotation is addressed;
1.4.10. “Purchase Price” means the price quoted in the Quotation attached hereto;
1.4.11. “Quotation” means the document attached hereto that sets out the Parties’ details, the Equipment and the Purchase Price
1.4.12. “Seller” means Express Fitness South Africa (Pty) Ltd (Registration number 2018/034670/07);
1.4.13. “Seller’s Bank Account” means the Seller’s bank account listed as such on the Quotation;
1.4.14. “South Africa” means the Republic of South Africa;
1.4.15. “Terms and Conditions” means the standard conditions of sale set out in this document together with the Quotation and any attached annexures;
1.4.16. “Travelling Costs” means the travelling costs payable as per the rates reflected on the Quotation in respect of deliveries made within the Designated Zones;
1.4.17. “Warranty Policy” means the Seller’s warranty policy attached as an annexure hereto.
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.
3.1. 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 10.3
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 faxed or 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 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 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 between Mondays to Fridays, 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 must inform the Seller whether the Equipment will be collected or delivered at the time at which it pays the balance of the Purchase Price. The equipment must be installed by a Express Fitness accredited technician for the warranty to apply. (Please see Express Fitness Warranty Policy)
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.
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.
5.4. Delivery shall be effected and risk and ownership shall pass when the Equipment is collected from the Seller by the Purchaser or its agent.
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 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.
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 these time periods as these 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.
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, in exceptional circumstances only, and at its sole discretion, permit cancellation of the Agreement and/or refund the deposit, subject to the payment by the Purchaser of a 15% Handling Fee.
9. 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 this sale and provide details of the purchaser. The terms of this sale shall be subject to the Warranty Policy.
10. Force Majeure
10.1. 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.
10.2. 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.
10.3. 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.
11.1. 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.
11.2. 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 arise from the reckless or negligent acts or omissions of the Seller in installing the Equipment, or in respect of claims arising from breach of the Warranty Policy.
11.3. 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. Failure to do so shall result in the claim being prescribed.
11.4. Subject to clause 11.2 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.
12. Termination And Breach
12.1. If either Party breaches these Terms and Conditions, the Party must give ten (10) Days’ written notice to the Party in default calling on it to remedy the breach, then the other Party has the right to cancel the Agreement on written notice thereof and institute a claim for damages.
12.2. Without limiting the remedies provided for in clause 12.1, 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 Seller does not render performance within ten (10) Days, ownership shall remain vested in the Seller and the Seller shall have the right to sell the Equipment in order to defray any expenses incurred by the Seller in the procurement of the Equipment.
13. Domicilia And Notices
13.1. 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 notice in terms of these Terms and Conditions
13.2. A Party may at any time, or from time to time, notify the other Party of an alternative address 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 and telefax number of the notifying Party, and be substituted for that Party’s pre-existing domicilium citandi et executandi or telefax number, as appropriate.
14. Dispute Resolution
14.1. 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.
14.2. Either Party may refer a dispute to arbitration by giving the other Party written notice of their intention to do so.
14.3. The Parties shall appoint a single arbitrator by mutual agreement. However, should they fail to reach agreement within five (5) Days of the notice referred to in clause 14.2, the appointment shall be made by the Association of Arbitrators (Southern Africa) on application from either Party.
14.4. 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.
14.5. Nothing in this clause shall preclude any Party from seeking interim and/or urgent relief from a Court of competent jurisdiction in South Africa.
15. 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.
16. Dispute Resolution
16.1. These Terms and Conditions shall be subject to the laws of South Africa
16.2. 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 subject matter, and no Party shall be bound by any representation, promise or warranty not recorded in these documents.
16.3. No addition, variation, amendment, 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.
16.4. 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 this, in the event any provision in these Terms and Conditions goes too far to be enforceable, that provision shall nevertheless be enforced to such lesser extent as may be determined by an arbitrator and shall be interpreted accordingly.
16.5. 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 these rights, including legal costs on the scale of attorney and client, irrespective of whether any action has been instituted, and these costs shall be payable on demand.