1. Interpretation
In these Conditions of Purchase:
1.1 ‘Conditions of Purchase’ means the terms and conditions set out in this document which supersede any other prior agreements which may be in place.
1.2 ‘Delivery Address’ means the delivery address stated on the Purchase Order
1.3 ‘Goods’ means the goods (if any) stated on the Purchase Order
1.4 ‘Order / Purchase Order’ means the order
1.5 ‘Order Number’ means the Purchase Order number as stated on the Purchase Order
1.6 ‘Services’ means the services (if any) described on the Purchase Order
1.7 ‘Company’ means any person, firm or company identified as supplier on the Purchase Order
1.8 ‘Total Fitness’ means Total Fitness Health Clubs Limited whose registered office is Total Fitness Health Clubs Limited, Wilmslow Way, Handforth, Wilmslow, Cheshire, SK9 3PE. (7334974)
1.9 The headings in these Conditions of Purchase are for convenience only and shall not affect their construction.
2. Agreement to purchase
2.1 The Order constitutes an offer by Total Fitness to purchase the Goods and/or the Services subject to the Conditions of Purchase and despatch or delivery of the Goods, or the commencement of supply of the Services by the Company shall constitute the Company’s acceptance of these Conditions of Purchase.
2.2 These Conditions of Purchase shall prevail to the exclusion of any other terms and conditions on which any quotation has been given to Total Fitness or other variation and no variation of the Conditions of Purchase, Order or Agreement shall be binding unless made by subsequent written agreement between Total Fitness and the Company.
3. Price
3.1 The price for the Goods subject to an Order shall, unless otherwise stated, be exclusive of VAT and inclusive of all charges for packaging, packing, carriage, insurance and delivery and any other duties or imports other than VAT. Total Fitness reserve the right to pay only to the value as stated in the valid Order. Any change in price from that stated in the Order shall only be made by agreement in writing at least thirty days prior to the delivery of the Goods.
4. Payment and terms
4.1 Payment shall be made by BACS transfer directly to a business bank account only. Bank information must be supplied prior to any shipment of the Goods.
4.2 Unless otherwise agreed in writing by Total Fitness BACS transfers will normally be submitted to Total Fitness’s bank on the fifteenth working day of the second month following the month of purchase (an average of 60 days)
5. Packaging
5.1 The company will package the Goods in a manner suitable for transit and/or storage at no cost to us.
5.2 The Goods, including any part thereof, will be supplied with all required labels, instructions, manuals, advice and materials in relation to the handling, storage, longevity, installation, use, service, maintenance and any other matter reasonably required under relevant Health & Safety laws and regulations. Where these are not included in the packaging these must be provided separately on delivery.
6. Delivery
6.1 The Goods shall be delivered and the Services shall be performed on the date or within the time period stated in the Order at the Delivery Address or as may be directed by Total Fitness. Where the date of delivery of the Goods or of performance of the services is not specified in the Order, the Company shall give Total Fitness reasonable notice of the date thereof and shall not perform their duties under this order until Total Fitness have confirmed that the date of performance is acceptable.
6.2 The Company shall give Total Fitness in good time any instruction or information required to enable Total Fitness to take delivery of the Goods and performance of the Services.
6.3 Total Fitness shall be entitled to reject any Goods delivered which are not in accordance with the Agreement and shall not be deemed to have accepted any Goods until Total Fitness has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent. In the event of any failure on the part of the Company to supply Goods or Services of the quality, in the quantity and to the time specified, Total Fitness shall be entitled to:
6.3.1 reject, and to require the Company to replace, at no charge, any such Goods; or
6.3.2 reject and obtain equivalent Goods or Services from an alternative source and the Company undertakes to reimburse Total Fitness for any reasonable additional costs incurred in so doing.
6.4 Time of delivery of the Goods and of performance of the Services shall be of the essence of the Agreement.
6.5 Any extension of time for delivery or performance must be agreed in advance between Total Fitness and the Company in writing. If time is so extended, time as extended shall be of the essence of the Agreement.
6.6. If the Goods are to be delivered or the Services are to be performed by instalments, the Agreement will be treated as a single contract and not severable.
6.7 Delivery shall not be effected until the Goods have been unloaded and (if relevant) the Services have been performed and accepted in writing by an authorised officer, employee, or representative of Total Fitness.
6.8 The Order Number must be quoted on all correspondence relating to the Order. A delivery or advice note must accompany all Goods dispatched to the Delivery Address. Goods or Services not accompanied by a delivery or advice note may be refused.
7. Title and risk
7.1 Title in the Goods shall pass to Total Fitness upon delivery unless payment is made prior to delivery in which case it shall pass to Total Fitness once payment has been made and the Goods have been appropriated to the Agreement.
7.2 Risk of damage to or loss of the Goods supplied shall pass to Total Fitness upon delivery in accordance with the Agreement.
7.3 The Company shall insure the Goods to their full value against all risks of damage or loss prior to completion of delivery by whomsoever effected.
8. WARRANTIES AND LIABILITIES
8.1 The Company warrants to Total Fitness that the Goods will:
8.1.1 be of satisfactory quality and fit for any purpose made known to the Company by Total Fitness. When assessing satisfactory quality, Total Fitness will take into account any public statement made by the Company or by any third party supplier engaged by the Company;
8.1.2 be free from defects in design, material and workmanship, and that the Company, upon becoming aware of any defect whatsoever in the Goods immediately notify Total Fitness of such defect and confirm the same in writing to Total Fitness within three (3) days of such defect being identified;
8.1.3 correspond in quality, quantity and description with any specifications, stipulations or any other information contained in the Order or supplied by Total Fitness to the Company or agreed in writing by Total Fitness and shall correspond in all respects with any samples or patterns provided by the Company to Total Fitness or by Total Fitness to the Company; and
8.1.4 comply with all applicable regulations and other legal requirements concerning the manufacture, sale, packaging, carriage, packing, delivery or disposal of the Goods and the performance of the Services.
8.2 The Company warrants to Total Fitness that the Services will be performed by appropriately qualified and trained personnel acting with due care and diligence and to the best industry standard.
8.3 The Company shall indemnify Total Fitness in full against all losses, damages (including but not limited to loss or damage to property or Total Fitness’s business or death or personal injury), liabilities, fines, penalties, costs and expenses (including legal expenses whether or not proceedings are brought) of whatsoever nature awarded against or incurred or paid by Total Fitness as a result or in connection with:
8.3.1 any breach of any warranty given by the Company in relation to the Goods or Services;
8.3.2 any claim that the Goods infringe or their importation use or resale infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person except to the extent that any such claim arises from compliance with a specification or design supplied by Total Fitness;
8.3.3. any liability under the Consumer Protection Act 1987 or subsequent consumer protection legislation;
8.3.4 any act or omission of the Company or its employees, agents or subcontractors in supplying delivering and installing the Goods or in performing the Services; and
8.3.5 the supply, delivery and installation of the Goods and the performance of the Services.
8.4 Nothing in this clause shall render the Company liable to indemnify Total Fitness if and to the extent that it is proved to Total Fitness’s satisfaction that such losses, damages, claims, liabilities, fines, penalties, costs and expenses result from any act, negligence or default of Total Fitness’s authorised servants or agents.
8.5 The Company warrants that any equipment, software and system to be developed for or supplied to Total Fitness pursuant to the Agreement, and any equipment, software and system used by the Company or used by any supplier of goods or services to the Company to provide the Goods and / or services to Total Fitness is and will be programmed to adapt to and accommodate changes in dates, including without limitation, century dates and leap years, without detriment or deterioration in performance affecting Total Fitness and undertakes to indemnify Total Fitness and hold Total Fitness harmless against all costs, losses and liability including legal fees arising from any breach of this Clause.
9. Force Majeure
9.1 Total Fitness and the company shall not be liable for any failure or delay in supplying the Goods or Services or in receiving or making use of the Goods or Services due wholly or partially to any event beyond the reasonable control of the parties (“Force Majeure Event”) including without limitation, acts of God, war, acts of terrorism, riot, civil commotion, malicious damage, fire, flood or storm. For the avoidance of doubt strikes, industrial action, third party insolvency and/or failure shall not be considered a Force Majeure Event.
9.2 If either party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by reason of a Force Majeure Event, it shall within 2 days give written notice to the other party declaring the extent of the Force Majeure Event, the date of its commencement and the effects of the Force Majeure Event on its ablility to perform its obligations under this Agreement and if mutually agreed by the parties then the obligations of the party so affected shall thereupon be suspended for so long as the circumstances may continue.
9.3 A party affected by a Force Majeure Event is to use every reasonable effort to minimise the effects thereof and shall resume performance as soon as possible after the removal of such Force Majeure Event. If the period of non-performance exceeds fourteen (14) days from the receipt of the notice of the Force Majeure Event, the party whose performance has not been so affected may, by giving written notice, terminate the agreement forthwith.
10. Termination and Breach
10.1 Total Fitness shall have the right to terminate this Agreement with immediate effect by notice in writing to the Company being in breach of any of its obligations under this Agreement. In case of any breach which is capable of remedy, Total Fitness shall serve a written notice on the company specifying the nature of such breach and where such breach is remediable the company shall have failed to remedy such breach within the maximum period of fourteen (14) days from the date of service of such notice.
10.2 In the case of a material breach, which is not capable of remedy, Total Fitness shall have the right to terminate this Agreement with immediate effect.
10.3 The Company shall have the right to terminate this Agreement in the event of Total Fitness being in breach of "any of its obligations under this Agreement, provided that the Company shall first have served a written notice on Total Fitness specifying the nature of such breach and where such breach is remediable Total Fitness shall have failed to remedy such breach within the maximum period of fourteen (14) days from the date of service of such notice.
10.4 Total Fitness may (without prejudice to any other rights or remedy of the other party) terminate this Agreement by notice to take immediate effect if any of the following events occur: a) The Company makes or offers to make any arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986); or b) The Company ceases or threatens to cease to carry on business or suspends or threatens to suspend all or substantially all of its operations (other than temporarily by reason of a strike) or suspends payments of its debts or becomes unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 where applicable) or commits any act of insolvency or bankruptcy; or c) A petition or resolution for the making of an administration order for the bankruptcy, winding-up or dissolution of the Company for the purposes of reconstruction or amalgamation of the solvent company is presented or passed; or d) The Company files a voluntary petition in bankruptcy or insolvency; or e) A liquidator, trustee, supervisor, receiver, administrator, administrative receiver or encumbrancer takes possession of or is appointed over the whole or any part of the assets of the Company; or f) There is a change of control of the Company. For the purpose of this Clause 10.4 (f), “control” means the ability to direct the affairs of another whether by voting or contractual rights or otherwise and whether directly or indirectly.
10.5 Total Fitness shall have the right to terminate this Agreement at any time on three (3) months written notice.