Terms & Conditions
CUSTOM GYMS LTD Terms & Conditions of Sale(January 2018)
Any contract entered into by CUSTOM GYMS LTD for the supply of goods and services is subject to these conditions. No other terms or conditions (including any written on or attached to any purchase order form, document or correspondence) shall be included or implied unless previously agreed in writing and signed by an authorised officer of CUSTOM GYMS LTD. No purported variation of the terms will be effective unless confirmed in writing by CUSTOM GYMS LTD and in no event will any customer’s standard terms and conditions of business apply.
No liability shall be attached to CUSTOM GYMS LTD, its agents or employees in respect of any representations or statements made, whether before or after agreement is reached, unless confirmed in writing by CUSTOM GYMS LTD. All samples, drawings, descriptive matter, specifications and advertising issued by CUSTOM GYMS LTD and any descriptions or illustrations contained in CUSTOM GYMS LTD's catalogues or brochures are issued for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of any contract, and no contract will be a sale by sample.
In the event of any conflict or inconsistency between these terms and conditions of sale and the terms of your order, these terms and conditions prevail, unless otherwise agreed by CUSTOM GYMS LTD in writing.
Telephone orders must be confirmed in writing. CUSTOM GYMS LTD accepts no responsibility for inaccuracies of orders given by telephone.
No order shall be deemed accepted by CUSTOM GYMS LTD unless received in writing and/or until receipt of CUSTOM GYMS LTD’s official Signed Equipment Proposal. Once CUSTOM GYMS LTD has notified the customer of acceptance of the written order by dispatch of the Confirmation Order the contract between CUSTOM GYMS LTD and the customer shall be deemed to be made.
Any quotation issued by CUSTOM GYMS LTD shall be open for acceptance for a period of 14 days from the date of the quotation provided that it has not previously been withdrawn. After expiration of the acceptance period or withdrawal, the quotation must be reconfirmed in writing by CUSTOM GYMS LTD and may be subject to change.
Any quotation is made on the understanding that it may be accepted in full and not in part. In the event of purported partial acceptance of the quotation by the customer a written revised quotation may be sent by CUSTOM GYMS LTD to the customer.
Goods will be invoiced in accordance with the price stated on the Signed Equipment Proposal
The price does not include delivery and installation unless this is stated separately on the Confirmation Order.
Prices are exclusive of VAT.
The customer covenants that all information provided to CUSTOM GYMS LTD by the customer is full, complete, accurate and not misleading. In the event that information provided by the customer does not comply with this covenant CUSTOM GYMS LTD may adjust the Price.
Unless otherwise agreed in writing prior to the order being placed by the customer, payment terms are 45% non-refundable deposit to be paid at the time of the order being placed, with the balance being due one day prior to the date of installation, payable by electronic transfer or bank draft. The time for payment shall be the essence of the contract. In the event of default in payment by the due date CUSTOM GYMS LTD reserves the right at any time to impose a late payment charge of 4% per annum above the base lending rate of Bank Of Ireland current at the time, accruing on a daily basis, on monies overdue and to suspend delivery or terminate the contract in respect of any equipment remaining undelivered.
Following the delivery of any incomplete order (i.e. not all the equipment ordered is delivered), full payment is due for all of the items received. CUSTOM GYMS LTD will not invoice any items undelivered unless requested by the customer.
If the customer fails to make any payment when due this will be deemed a material breach of contract and CUSTOM GYMS LTD may, at its sole option and without incurring any liability, suspend its performance until such time as the overdue payment is made or the customer has provided assurances acceptable to CUSTOM GYMS LTD that the overdue payments will be made. In the event of any such suspension of performance CUSTOM GYMS LTD shall be entitled to make an adjustment to the delivery schedule and Price to reflect the delay and costs caused by the suspension.
In the event of non-payment by the customer under any contract, CUSTOM GYMS LTD may appropriate any payment made by the customer to goods supplied under any other contract.
The customer has no right to cancel any order after dispatch of the Confirmation Order except with the written agreement of CUSTOM GYMS LTD. Without prejudice to any other right or remedies, CUSTOM GYMS LTD will have the right to charge a cancellation fee to cover all costs, expenses and/or losses arising as a result of any cancellation. This clause does not affect the customer’s rights arising out of any breach by CUSTOM GYMS LTD.
Time of delivery shall not be of the essence of any contract and any time or date given is given as an estimate only. CUSTOM GYMS LTD shall not be liable to make good any damage or loss whatsoever and howsoever arising directly or indirectly from delay or advance in delivery. Two weeks’ notice must be given to CUSTOM GYMS LTD of any change likely to affect delivery for the change to be implemented. Notwithstanding the foregoing CUSTOM GYMS LTD shall make every commercially reasonable effort to deliver the goods by the agreed delivery date.
CUSTOM GYMS LTD shall arrange for the carriage of the goods to the customer unless otherwise specified in the confirmation order. The goods shall be at the customer's risk as from the moment of delivery to the customer's premises.
Where part delivery takes place each delivery shall be deemed to be under a separate contract for the purpose of these conditions. Failure to comply with one or more delivery dates shall not be deemed to be a repudiation of any contract.
If the customer fails to accept delivery of the goods or fails to give CUSTOM GYMS LTD adequate delivery instructions then, without prejudice to any other right or remedy available to it, CUSTOM GYMS LTD may:
1 store the goods or arrange for them to be stored until they can be delivered to the customer, in which case the customer shall pay to CUSTOM GYMS LTD all reasonable costs of storing the goods, and all costs involved in insuring the goods against loss or damage whilst stored; and/or
2 re-sell the goods to any other person at the best price readily available and (after deducting all reasonable storage, insurance and selling expenses incurred by CUSTOM GYMS LTD) charge the customer for any shortfall below the price that would have been charged to the customer.
The customer shall be responsible for procuring any mechanical devices required to make the physical delivery and any preparatory work required to enable the goods to be delivered and properly installed.
CUSTOM GYMS LTD shall not be in breach of its delivery obligations if unable to deliver and/or install the goods due to the customer’s failure to comply.
Claims for any loss or damage to the goods in transit shall be made by the customer directly to CUSTOM GYMS LTD within 48hrs of receipt of the goods.
Any claim by the customer that the goods supplied do not conform to contract must be made in writing within 48hrs of delivery. The equipment concerned shall not be subject to any process nor disposed of until CUSTOM GYMS LTD has had the opportunity to make an inspection and / or test the goods. The customer should examine the goods upon delivery and if any items are damaged or missing should state details on the CUSTOM GYMS LTD documentation provided by CUSTOM GYMS LTD's installation team.
If the goods are not found to be defective, CUSTOM GYMS LTD’s costs of inspection shall be borne by the customer. If the goods are found to be defective, CUSTOM GYMS LTD shall at its option replace them or credit the customer with their invoiced value or part thereof and this shall be the limit of CUSTOM GYMS LTD’s liability.
The customer must inform CUSTOM GYMS LTD immediately if the goods have not been received within 48hrs of dispatch (mainland).
TRANSFER OF TITLE
Although the customer may acquire possession of the goods, ownership and title shall not pass to the customer until the customer has paid all amounts owed in full to CUSTOM GYMS LTD and until such time the customer shall: (i) hold the goods in a fiduciary capacity as agent for CUSTOM GYMS LTD and shall be accountable to CUSTOM GYMS LTD for the proceeds of sale of such goods; (ii) inform any sub- purchaser that the goods are sold subject to retention of title clause and impose a clause in similar terms to the sub- purchaser, providing for the same rights as in this clause; (iii) pay the proceeds of sale of goods belonging to CUSTOM GYMS LTD into a separate bank account; (iv) if requested so to do by CUSTOM GYMS LTD, produce payment by a sub-purchaser direct to CUSTOM GYMS LTD; (v) in the event of any breach of this clause, if requested by CUSTOM GYMS LTD, permit CUSTOM GYMS LTD to enter the premises where the goods are being stored and permit removal of the goods into CUSTOM GYMS LTD’s possession.
CUSTOM GYMS LTD warrants that on delivery all goods will substantially conform to the specifications agreed in writing, be of satisfactory quality, and be new and be free from material damage, and that all services will be provided with reasonable care and skill. Where CUSTOM GYMS LTD gives a written warranty with respect to any parts for any stated period, CUSTOM GYMS LTD warrants that those parts will continue to function safely and not break or wear out for that stated warranty period under normal usage and wear and tear and any other warranty express or implied as to the quality of those parts shall not apply. Where CUSTOM GYMS LTD gives a written warranty with respect to any labour in any contract documents for any stated period, CUSTOM GYMS LTD agrees that where any repairs or replacement of parts are required as a result of a breach of any warranty in relation to the goods, CUSTOM GYMS LTD will not charge for any work involved in carrying out any such repairs or replacements. Where any warranty period is given, unless otherwise stated in the contract documents, such warranty period will run from the date on which the goods or services are first delivered. The warranty period for any replacement parts or repair work will run for no longer than the warranty period for the goods to which that part is fitted or repair work is carried out.
CUSTOM GYMS LTD shall have no obligation to support any goods, whether by spare parts or repairs following the end of the warranty period stated for such goods, except as otherwise expressly agreed in writing with the customer.
CUSTOM GYMS LTD shall not be liable for any claim under a warranty: (i) notified to CUSTOM GYMS LTD later than 14 days after the customer becomes or ought reasonably to have become aware of the circumstances giving rise to the claim; (ii) if the goods have not been stored, installed or operated in accordance with accepted industrial practice and/or any specific instructions; (iii) the goods have been subjected to any accident, misapplication, environmental contaminant, corrosion, abuse or misuse; (iv) the customer has used, repaired or modified the goods after discovery of the defect without CUSTOM GYMS LTD's specific written consent; (v) the customer refuses to permit CUSTOM GYMS LTD to examine the goods to determine the nature of the alleged defect; or (vi) the customer fails to meet any of its obligation under these conditions.
When reporting a claim under warranty, the customer shall provide full details of the claim. The customer shall allow CUSTOM GYMS LTD a reasonable opportunity to inspect any goods subject to a claim under a warranty and the customer shall at CUSTOM GYMS LTD’s request take the goods out of use and hold them ready for inspection. The customer shall give CUSTOM GYMS LTD a reasonable opportunity to correct any breach of warranty and in rectifying any breach CUSTOM GYMS LTD may repair or replace any goods or re-perform any services. This shall be CUSTOM GYMS LTD’s only liability under a warranty. Where a part is reasonably able to be fitted by the customer, that part will be sent to the customer and the customer will be responsible for fitting the part. Unless a warranty as to labour is expressly given in the contract documents, the customer shall pay an additional charge for all labour involved in repairing any goods or replacing any parts arising out of a claim under a warranty, including travel to any premises where the goods are located. The customer shall be responsible for carrying out and for the cost of opening up, dismantling, demolishing and / or reinstatement of any premises or structure required to enable CUSTOM GYMS LTD to repair any goods or replace any parts on any goods. If CUSTOM GYMS LTD disputes the breach of warranty, CUSTOM GYMS LTD may elect to correct the alleged breach of warranty and may make an additional charge for this work. CUSTOM GYMS LTD will refund any such charge if it is subsequently agreed or determined to be a breach. If CUSTOM GYMS LTD carries out any inspection, investigation or rectification work in relation to a claimed breach of warranty, and it is later found not to have been a breach of warranty, the customer shall pay CUSTOM GYMS LTD an additional charge for all such work including the cost of all persons sent out to inspect the goods or carry our any work and parts supplied.
CUSTOM GYMS LTD shall not be liable under any warranty in respect of any matter, circumstance, malfunction, fault or damage: (i) resulting from or constituting normal deterioration or wear and tear; (ii) resulting from modifications, alterations or additions, maintenance or repairs to the goods made by any person other than CUSTOM GYMS LTD or an appointed agent (iii) resulting from misuse of the goods or failure to handle, store, site, install, use, treat, maintain and repair the goods in accordance with the guidelines provided by CUSTOM GYMS LTD; (iv) arising when the customer could have taken reasonable steps to prevent further damage; or (v) arising from any other cause whatever other than the default or negligence of CUSTOM GYMS LTD.
All warranties given in respect of the goods will automatically become void if: (i) the customer moves the goods to any other premises; or (ii) any modifications, repairs or replacements of parts are carried out to the goods by any person other than CUSTOM GYMS LTD or an appointed agent (iii) the customer fails to maintain the goods as required by CUSTOM GYMS LTD or to provide when requested complete written records of such maintenance. CUSTOM GYMS LTD will not unreasonably withhold its consent to the goods being subject to the warranty again, providing that the customer pays an additional charge for a CUSTOM GYMS LTD preventative maintenance visit to inspect the state of the goods, and for correction of any third party work which is, in the opinion of CUSTOM GYMS LTD, defective. However CUSTOM GYMS LTD will not assume liability for materials, workmanship, transportation charges, labour costs or other related expenses for any work carried out by any third party not approved in writing by CUSTOM GYMS LTD.
Where CUSTOM GYMS LTD is entitled to make an additional charge for any work, parts of services, CUSTOM GYMS LTD will give a quotation and the customer shall sign a written authorisation for such work. CUSTOM GYMS LTD will not be obliged to carry out such work or services or provide such parts until that authorisation is provided.
All warranties, conditions, or terms implied by statute, common law, custom, trade or otherwise with respect to the condition, standard, quality, performance, operation, fitness or suitability of the goods or services are excluded to the fullest extent permitted by law.
Any equipment provided by CUSTOM GYMS LTD, but not manufactured by CUSTOM GYMS LTD will be covered by the manufacturer's warranty only. Any claim arising outside the manufacturer's warranty period will not be covered by CUSTOM GYMS LTD.
ACT OF NATURE
Neither party shall be liable for any failure or delay in performance of its obligations under any contract due to any force of nature event including, but not limited to, an Act of God, weather of exceptional severity, war, military operations, terrorist action, riot, fire, explosion, accident, flood, lightening damage, strikes, industrial dispute, lock-outs, delay in transport, shortage of fuel, default of supplier, inability to obtain material, embargo act or demand of any government department or local authority, the act or omission of any party for whom that party is not responsible or any other cause whatsoever beyond that party’s reasonable control except that the obligations to make payment when due will continue. If any such delay occurs then (unless the cause frustrates or renders impossible or illegal the performance of the contract, or otherwise discharges it) the period for that party to perform its obligations shall be extended by such period (not limited to the length of the delay) as is reasonably required for that party to complete the performance of its obligations.
Without prejudice to any other provision of this clause CUSTOM GYMS LTD hereby excludes all liability, whether that liability arises under or in connection with the contract, its negligence (in whole or in part), any breach of contract, statutory duty or otherwise (to the fullest extent permitted by law) in respect of any loss of profit or other economic loss, indirect loss, consequential loss, special loss, loss of a chance, damage to goodwill or any other tangible asset.
If a customer decides to install a product themselves Custom Gyms Ltd is not liable for any injury or accident caused during or after the installation of that product. Products are used/installed at the consumers own risk.
Without prejudice to any liabilities of CUSTOM GYMS LTD that may arise under any of the above the customer hereby agrees that the total aggregate liability of CUSTOM GYMS LTD to the customer under any contract or otherwise shall be no more than the amount paid by the customer in respect of any goods purchased by the customer under the relevant contract.
This clause sets out the entire liability of CUSTOM GYMS LTD under or in connection with any contract and shall apply before and / or after any termination of the contract.
If the customer shall offer to make a scheme or arrangement with creditors or commit any act of bankruptcy or, being a company, has a receiver or manager appointment over any part of its undertaking or assets, or if a resolution for the winding up of the company be passed then CUSTOM GYMS LTD may treat all sums due or to become due on any accounts as immediately payable and suspend or cancel further delivery or require payment in advance or recover any goods which are unsold wherever they are stored, or treat the contract as repudiated by the customer but without prejudice to any other rights of CUSTOM GYMS LTD.
If the customer fails to make any payment when due under any contract with CUSTOM GYMS LTD or fails to give delivery instructions or fails to take delivery of goods at the time agreed (if any) or, if no time is agreed, within a reasonable time, or the customer breaches any other term of any contract then CUSTOM GYMS LTD may (i) stop any goods in transit and suspend further deliveries; and/or (ii) suspend work on any contract; and/or (iii) terminate any or all contracts with the customer forthwith and if the goods or any part of them have been delivered but not paid for the full price shall become immediately due and payable notwithstanding any previous agreement or arrangement with the customer.
CUSTOM GYMS LTD shall install the goods at the customer’s premises in accordance with the CAD plan produced by CUSTOM GYMS LTD in
connection with the installation of the goods (the “CAD Plan”). The CAD Plan will (amongst other things) specify the “safety zone” required by law in respect of the distance between the goods and other equipment, fixtures, fittings and structures at the customer’s premises. If the customer relocates or moves the goods from the location specified in the CAD Plan after the date of installation without obtaining CUSTOM GYMS LTD’s prior written consent, CUSTOM GYMS LTD shall not be liable to the customer or any third party for any losses, damage or injury caused to the customer or any third party, whether arising in contract, tort (including negligence), misrepresentation or otherwise as a result of the customer relocating or moving the goods from the location set out in the CAD Plan.
If the customer provides written notice to CUSTOM GYMS LTD after the date of installation that it wishes to relocate the goods from the location specified in the CAD Plan, CUSTOM GYMS LTD shall use its reasonable endeavours to provide a revised CAD Plan to the customer (at the customer’s cost and expense) subject to the customer providing all information and assistance as CUSTOM GYMS LTD may require to CUSTOM GYMS LTD in connection with such relocation.
BOLTING DOWN OF GOODS
If the goods comprise any of the equipment set out in CUSTOM GYMS LTD’s Equipment Anchoring Guidelines (the “Guidelines”) as updated from time to time, the customer shall be required to comply with such Guidelines. CUSTOM GYMS LTD will provide the customer with a copy of the Guidelines as part of the order documentation.
CUSTOM GYMS LTD shall not be liable to the customer or any third party for any losses, damage or injury caused to the customer or any third party, whether arising in contract, tort (including negligence), misrepresentation or otherwise, as a result of or in connection with the customer’s failure to comply with the Guidelines and/or CUSTOM GYMS LTD’s instructions in respect of such Guidelines.
The customer shall not assign any rights or delegate any duties hereunder and CUSTOM GYMS LTD reserves the right to subcontract any or all of its obligations hereunder.
CUSTOM GYMS LTD reserves the right to amend equipment specifications or prices without prior notice.
These conditions shall be subject to and construed in accordance with Irish law and the customer shall submit to the exclusive jurisdiction of the Irish courts.
Except as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law but where the customer is a consumer the statutory rights of the customer are not affected by these conditions.
Neither forbearance nor indulgence by CUSTOM GYMS LTD in enforcing any term shall constitute a variation of it or a waiver of any of CUSTOM GYMS LTD's rights. Waiver by CUSTOM GYMS LTD of any of any term shall not in any way affect the validity of any other terms or conditions. In the event that any provision of any contract would be held to be invalid or unenforceable the remaining provisions shall not be affected. No waiver, alteration or modification of any of the provisions of these conditions or any contract shall be binding on CUSTOM GYMS LTD unless made in writing and executed by a duly authorised representative of CUSTOM GYMS LTD.
The goods shall not be used in any country other than that for which CUSTOM GYMS LTD was aware that they were ordered except where CUSTOM GYMS LTD has given its consent in writing and if goods are to be used outside the Republic of Ireland then the customer shall be deemed to have satisfied itself that such goods comply with the safety regulations of the country or state in which they are to be used and the customer shall indemnify CUSTOM GYMS LTD in full for any loss or damage whatsoever incurred by CUSTOM GYMS LTD in the event that the goods are found not to comply with such safety regulations.