OUTDOOR FITNESS CONCEPTS LTD STANDARD TERMS AND CONDITIONS OF CONTRACT FOR THE SUPPLY AND INSTALLATION OF GOODS
Outdoor Fitness Concepts Ltd (OFC) will only do business with a client on the basis of these Terms and Conditions of Sale. When a Client places an order with OFC or accepts its’ Quotation for the supply and / or installation of Goods, it is placed to these Terms and Conditions of Contract. As all supply and / or installation of Goods provided by OFC are made specifically to Clients’ individual specifications, and therefore are clearly personalised, the Client does not have a right to cancel the supply and / or installation of Goods ordered, claim a refund, or invoke its’ right of withdrawal to decline to accept delivery of said Goods.
1. DEFINITIONS
In these Terms and Conditions, the following words shall have the following meanings:
“Client” means the person named as such in the Quotation;
“Contract” means the Contract between the Client and the Contractor for the supply and / or installation of Goods comprising the Quotation, these Terms and Conditions and any other documents specified in the Quotation or any special terms and conditions agreed in writing by the Contractor;
“Contractor” means Outdoor Fitness Concepts Ltd;
“Contract Price” means the price payable by the Client to the Contractor for the supply and / or installation of Goods as shown in the Quotation, (and as varied in accordance with the Contract);
“Completion Date” means the date on which the supply and / or installation of Goods are complete;
“Delivery Address” shall be the point/s of delivery as specified on the Quotation;
“Goods” means such materials, items, products, equipment, and other types of goods that are supplied by the Contractor in accordance with the Quotation or any special terms and conditions agreed in writing by the Contractor;
“Installation” means the installation of any and all equipment supplied by the Contractor, such installation including any actions that are necessary to attach the equipment to the building or grounds, and connections as required for the full performance of the equipment in accordance with the Quotation or any special terms and conditions agreed in writing by the Contractor;
“Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property;
“Quotation” means the Contractor's signed Quotation referring to the overall agreement which forms the legal Contract between the Client and the Contractor.
2. CONTRACT FORMATION
2.1 Acceptance of the Contractor's Quotation by the Client constitutes the Contract for the Contractor to supply and / or install the Goods s in accordance with these Terms and Conditions.
2.2 These conditions shall apply to all Contracts for the supply and / or installation of Goods by the Contractor to the Client to the exclusion of all other terms and conditions including any terms or conditions which the Client may seek to apply under any purchase order, order confirmation or similar document.
2.3 All orders for the supply and / or installation of Goods shall be deemed to be an offer by the Client for the supply and / or installation of Goods pursuant to these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Contractor.
2.5 Any advice, recommendation or representation given by the Contractor to the Client as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Contractor is followed or acted upon entirely at the Client’s own risk, and, accordingly, the Contractor shall not be liable for any such advice, recommendation or representation which is not so confirmed.
3. CONTRACTORS’ OBLIGATIONS
3.1 The Contractor will exercise reasonable skill and care in the supply and / or installation of Goods.
3.2 The Contractor shall ensure the Goods are packed and supplied in such a manner as to reach t the Delivery Address in good condition, and that the packaging and supply complies with all relevant statute and regulations.
3.3 The Contractors’ specialist installation team will be responsible for the opening and unpacking of Goods and install the equipment at a pre-determined time as agreed between the Contractor and the Client.
3.4 The Contractor shall remove all packaging waste from the Clients’ premises associated with the delivery of Goods.
4. CLIENTS’ OBLIGATIONS
4.1 The Client will give the Contractor access to the premises as reasonably required by the Contractor to enable him to carry out the provision of services without interference by the Client or by other contractors of the Client. Costs incurred by the Contractor due to problems with access to the site/premises may be passed on to the Client.
4.2 Site underground utility and drainage plans or mapping must be provided by the Client, if necessary, and if available before commencement of any enabling works, otherwise an underground utility mapping survey may be required prior to commencement of the services on site. The Client can arrange this and provide the report to the Contractor or request a quotation from the Contractor for doing so.
4.3 If the Client wishes the Contractor to remove or carry out any works to any trees as part of the Contract, the Client must confirm to the Contractor in writing prior to the start of any works that these trees are not protected by legislation. Failure to confirm this will result in the Contractor delaying commencement of such works until written confirmation is received. The Contractor will reschedule the completion of the Contract as necessary, and any costs incurred by the Contractor due to this delay may be passed on to the Client.
4.4 The Client will provide the following services to the Contractor (unless otherwise agreed by the Contractor):
- Access to 240v power
- Access to mains water supply
- Toilet and hand washing facilities.
4.5 The Client will provide a secure storage area to house the Goods awaiting installation by the Contractor in accordance with the agreed installation schedule. Any such storage shall be at the risk of the Client.
4.6 The Client shall not on the delivery of the Goods or thereafter, open any packaging containing the Goods, remove or obscure labels or other markings on the packaging.
5. CONTRACT PRICE & PAYMENT
5.1 The Contract Price is stated in the Quotation, and it may only be varied where a mechanism for price variation is agreed by the Contractor and incorporated elsewhere in this Contract.
5.2 The Client shall pay the Contractor the Contract Price in accordance with the payment terms in the Quotation or any special terms and conditions agreed in writing by the Contractor.
5.3 The final date for payment of each payment notice/invoice shall be 14 days from the date of the payment notice/invoice.
5.4 If the Client is dissatisfied with any part of a payment notice/invoice and wishes to pay less than the amount shown in the payment notice/invoice, he must at least 5 days before the final date for payment give notice to the Contractor specifying the amount he considers to be payable and the basis on which that amount is calculated. The undisputed parts of the payment notice/invoice must be paid by the final date for payment and any disputed amount will be dealt with under Clause 19 (Disputes). Except as stated in this Clause, the Client has no right to withhold any money or set off any amount against a payment notice/invoice of the Contractor.
5.5 If the Client fails to pay any amount properly claimed, the Contractor may suspend all or any of his obligations under the Contract until the payment is received after giving at least 7 days’ notice to the Client of his intention to suspend with reasons. Any period of suspension will entitle the Contractor to any reasonable costs he incurs as well as an extension of time for completion of the supply and / or installation of Goods.
5.6 Late payment entitles the Contractor to interest at the statutory rate of interest under the Late Payment of Commercial Debts Regulations from the due date until the date of actual payment or 8% p.a. above Bank of England base rate if the Act does not apply.
5.7 Prices are quoted exclusive of VAT which will be added as appropriate and payable by the Client. The Contractor will issue a valid VAT invoice or VAT receipt for each such amount.
6. CANCELLATION/REFUND
6.1 Once the Client has signed and returned to the Contractor the Contractors’ Quotation, paid a deposit or paid the outstanding amount in full, the Client does not have a right to cancel the Goods and services ordered, claim a refund or invoke its’ right of withdrawal to decline to accept delivery of said Goods and services as all Goods are made specifically to Clients individual specifications, and therefore are clearly personalised.
7. DELIVERY
7.1 Unless otherwise agreed in writing by the Contractor, delivery of the Goods shall take place at the address specified in the Quotation on the date specified by the Contractor. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
7.2 The date of delivery specified by the Contractor is an estimate only. Time for delivery shall not be of the essence of the Contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed, and the Client shall have no right to damages or to cancel the order for failure of any cause to meet any delivery date stated.
7.3 If the Contractor is unable to deliver the Goods for reasons beyond its control, then the Contractor shall be entitled to place the Goods in storage until such time as delivery may be affected and the Client shall be liable for any expense associated with such storage.
7.4 If the Client fails to accept delivery of Goods on the delivery date or within 3 days of notification that they are ready for despatch whether prior to or after the delivery date the Contractor reserves the right to invoice the Goods to the Client and charge them. In addition, the Client shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Goods are either despatched to the Client or disposed of elsewhere.
7.5 The Contractor shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate contract and failure by the Contractor to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat any other related contract as repudiated.
7.6 Where the Client requires delivery of the Goods by instalments, rescheduling requires the Contractor’s written agreement. Each delivery shall constitute a separate contract and failure by the Client to pay the price in respect of any instalment shall entitle the Contractor to treat any other related contract as repudiated in addition to any other rights of the pursuant to these Conditions.
7.7 Notwithstanding that the Contractor may have delayed or failed to deliver the Goods (or any of them) promptly the Client shall be bound to accept delivery and to pay for the Goods in accordance with the Quotation.
8 GOODS UPON DELIVERY
8.1 The Contractor is responsible for the opening and unpacking of Goods at the Clients’ site at a pre-determined time as agreed between the Contractor and the Client. The Client must not on the delivery of the Goods or thereafter, open any packaging containing the Goods, remove or obscure labels or other markings on the packaging. Should the Client open or interfere with any packaging or markings, no claim for defect, damage or quality issues will be entertained by the Contractor.
9. ACCEPTANCE
9.1 The Client shall be deemed to have accepted the supply and / or installation of Goods on the day of installation and accordingly no claim for defect, damage or quality issues will be entertained. After acceptance the Client shall not be entitled to reject Goods which are not in accordance with the Contract.
9.2 The Client shall not remove or otherwise interfere with the branding marks or other intellectual property on the Goods.
10 PROPERTY AND RISK
10.1 Risk in the Goods shall pass to the Client upon the Goods being delivered to the Delivery Address, in correct quantity and good condition, at a pre-determined time agreed with the Client.
10.2 The Client shall not assume any risk on delivery if the Goods are received in a damaged condition or if there are any discrepancies or variances of any kind between the quantity or extent of Goods delivered and the quantity or extent of the Goods described on the delivery documentation until such time as the cause of the damage or extent of the discrepancy is ascertained and the cost and liability of replacement and / or rectification is agreed.
10.3 Title of the Goods shall pass to the Client on completion of delivery.
10.4 Property of the Goods shall pass to the Client upon payment in full in accordance with the Quotation or any special terms and conditions agreed in writing by the Contractor.
11 WARRANTY
11.1 Where the Goods and / or any component parts are found to be defective, the Contractor shall, replace defective Goods and / or component parts free of charge within the warranty period, and repair goods if within the labour period of said warranty, subject to the following conditions;
11.1.1 the Client notifying the Contractor in writing immediately upon the defect becoming apparent;
11.1.2. the defect being due to faulty design, materials or workmanship.
11.2 The Contractor shall not be liable for any repairs or replacements if and to the extent that such defect or damage is caused by the proven negligence of the Client, its employees, agents or sub-contractors.
11.3 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions 12 (Liability) and 13 (Limitation of Liability).
12. LIABILITY
12.1 No liability of any nature shall be incurred or accepted by the Contractor in respect of any representation made by the Contractor, or on its behalf, to the Client, or to any party acting on its behalf, prior to the making of this Contract where such representations were made or given in relation to:-
12.1.1. the correspondence of the supply and / or installation of Goods with any description or sample;
12.1.2. the quality of the supply and / or installation of Goods; or
12.1.3. the fitness of the supply and / or installation of Goods for any purpose whatsoever.
12.2 No liability of any nature shall be accepted by the Contractor to the Client in respect of any express term of this Contract where such term relates in any way to:
12.2.1. the correspondence of the supply and / or installation of Goods with any description;
12.2.2. the quality of the supply and / or installation of Goods; or
12.2.3. the fitness of the supply and / or installation of Goods for any purpose whatsoever.
12.3 Except where the Client deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the supply and / or installation of Goods, whether express or implied by statute or common law or otherwise are hereby excluded from the Contract to the fullest extent permitted by law.
12.4 For the avoidance of doubt the Contractor will not accept any claim for consequential or financial loss of any kind however caused.
13. LIMITATION OF LIABILITY
13.1 Where any court or arbitrator determines that any part of Clause 12 above is, for whatever reason, unenforceable, the Contractor shall be liable for all loss or damage suffered by the Client but in an amount not exceeding the Contract Price.
13.2 Nothing contained in these terms and conditions shall be construed so as to limit or exclude the liability of the Contractor for death or personal injury as a result of the Contractor’s negligence or that of its employees or agents.
14. INSURANCE
14.1 In addition to maintaining adequate levels of insurance as required by law, the Contractor shall ensure that any and all Goods are fully covered by Contractor’s insurance until such time as the Client assumes risk in the Goods as defined herein.
14.2 The Contractor will provide the Client with details of the insurances upon request.
15. VARIATION
15.1 If the Client wishes to vary any of the requirements to the supply and / or installation of Goods (or any design) he must inform the Contractor in writing. The Contractor will then supply to the Client an estimate of the price of the variation and the likely effect on the Completion Date.
15.2 Unless the Client withdraws his request for a variation when he receives the Contractor's estimate, the Contract Price will be adjusted in accordance with the Contractor's estimate (or as otherwise agreed between the Client and the Contractor) and an appropriate extension of time for completion of the supply and / or installation of Goods shall be agreed.
15.3 The Contractor reserves the right to deny any request for a variation which would result in a reduction in the supply of Goods and / or installation in accordance with the Quotation or any special terms and conditions agreed in writing by the Contractor, as defined herein.
15.4 The Contractor will notify the Client if he encounters, during the course of the installation of Goods any difficulties which he could not have reasonably foreseen when submitting the Quotation and, in those circumstances, a fair and reasonable adjustment to the Contract Price and Completion Date will be made under the variation process. Examples of unforeseen difficulties include, but are not limited to:
- The discovery of underground utilities/obstructions not identified in advance by the Client or through underground surveys such as gas/oil/water pipes, power/telecom cables and unexploded ordnance;
- Buried structures from earlier builds such as foundations and the discovery of an unusual/atypical sub surface ground composition such as concrete/hardcore where soil would normally be expected;
- The unexpected discovery of any materials requiring specialist disposal or special handling such rubber flooring/tyres, contaminated soil, toxic waste, asbestos, leads etc.
16. HANDOVER & DEFECTS LIABILITY
16.1 The Contractor will notify the Client within 5 working days of becoming aware of any event beyond his control which may prevent or delay completion of the supply and / or installation of Goods by the Completion Date. The notice will specify the cause of the delay, the likely effect on the Completion Date and the Contractor's proposals for dealing with the matter. The Completion Date will then be extended as agreed by the parties. The Contractor acknowledges that he must take reasonable steps to mitigate or reduce any delay.
16.2 The Contractor will give the Client notice of his intention to hand over the Goods and / or installation on completion. On handover, the Contractor and the Client will conduct a formal inspection to identify any defects/snagging and the Contractor will then confirm the Completion Date to the Client. The Contractor will provide the Client with a written list of defects/snagging raised at the inspection together with confirmation on when such defects/snagging will be rectified.
16.3 The Contractor will be responsible for remedying defects in the supply and / or installation of Goods from the Completion Date as specified in the warranty terms, the Client must inform the Contractor as soon as he becomes aware of any defects for which the Contractor is responsible.
16.4 Defects attributable to fair wear and tear or to misuse or failure by the Client to comply with any operating or maintenance manuals will not be the responsibility of the Contractor.
16.5 Where equipment or materials used in the supply and / or installation of Goods have the benefit of a manufacturer’s warranty, the Contractor will take steps to procure that the Client has the benefit of that warranty. The Contractor will not be liable for any defect in the equipment or materials except to the extent that this is due to the Contractor’s negligence.
16.6 Except for his liability to remedy any defects for which he is responsible, and which are notified to him after the Completion Date as specified in the warranty terms, the Contractor will have no liability to the Client, in contract or in tort, for any other direct, indirect, or consequential loss incurred by the Client, including but not limited to loss of use or loss of profit. However, liability for death or injury of individuals due to the Contractor’s negligence is unlimited.
17. TERMINATION
17.1 The Contractor may give notice to terminate the Contract if the Client fails to make any payment to the Contractor within 30 days of the payment date or commits any other material breach of the Contract.
17.2 The Client may give notice to terminate the Contract if the Contractor commits a material breach of the Contract and, in the case of a breach capable of remedy, fails to take steps to remedy the breach within 30 days of being requested to do so in writing.
17.3 Either party may terminate the Contract if the other party becomes insolvent or has a receiver, manager or administrative receiver or liquidator appointed.
17.4 Termination will not affect the accrued rights and liabilities of the parties at the termination date.
18. INTELLECTUAL PROPERTY
18.1 The Client acknowledges and understands that the Contractor is the owner of the Contractor Intellectual Property Rights.
18.2 The Client shall not use the Contractors’ trademarks or logos without the prior written consent of the Contractor.
18.3 If the Client wants to refer to the products in a purely descriptive manner in promotional materials for its business (including via social media) it shall be entitled to do so provided that it uses the trademarks and logos in the format set out by the Contractor.
18.4 The Client may not register any trademarks or website domain names, or use subdomains, that include the Contractors’ trademarks and logos or anything confusingly similar.
18.5 The Client shall inform the Contractor as soon as it becomes aware of any infringement or potential infringement of the Contractor Intellectual Property Rights and shall assist the Contractor, wherever possible, in the protection of the Contractor Intellectual Property Rights, including but not limited to, the equipment, Documentation and the trademarks and logos.
19. DISPUTES
19.1 The Contractor and the Client will endeavour to settle any dispute or difference amicably by direct negotiation.
19.2 If they are unable to settle the dispute, it may be referred by either party to adjudication in accordance with the CEDR (Centre for Effective Dispute Resolution) Adjudication Rules. The decision of the adjudicator will be final and binding on the parties unless a notice of dissatisfaction is served by either party on the other within 28 days of the decision.
19.3 Any dispute that is not resolved by negotiation or adjudication will be finally settled by the courts of England and Wales.
19.4 The Contract is governed by the laws of England and Wales.
20. FORCE MAJEURE
20.1 For the purpose of this Contract “Force Majeure” means any event(s) or circumstance(s) beyond the reasonable control of either party which impedes the due performance of the obligations of such party and which by the exercise of all reasonable diligence such party is unable to prevent.
20.2 The Contractor shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Contractor shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Contractor considers unreasonable, it may without liability on its part, terminate the Contract or any part of it.
21. GENERAL
21.1 Notices. Every notice required under these Terms and Conditions shall be in writing and delivered by hand, sent by first class post to the address of the recipient or sent by email.
21.2 Assignment. Neither party will assign any of his rights or obligations under the Contract without the prior written consent of the other.
21.3 Subcontracting. The Contractor may sublet part of the works, but subcontracting will not relieve the Contractor of his obligations under the Contract.
21.4 Entire Agreement. The documents comprised in the Contract including the Quotation and these Terms and Conditions constitute the only agreement between the parties and supersede any previous arrangements, agreements or understandings relating to the supply and / or installation of Goods.
21.5 Amendment. Any amendment to the terms of the Contract shall only be effective if it is agreed in writing and signed by an authorised signatory of the Client and the Contractor.
21.6 No Reliance on Representations. The Client acknowledges that he has not relied on and will have no remedy in respect of any statement, representation, warranty, or undertaking of any person (whether a party to this Agreement or not) other than is expressly set out in the Contract. However, nothing in this Clause shall limit or exclude liability for fraud.
21.7 Severance. If any provision of the Contract becomes illegal or unenforceable, this shall not affect the legality or enforceability of any other provision of the Contract. In that situation the Parties shall, where possible, use reasonable endeavours to agree an alternative provision(s) which is legally enforceable.
21.8 No set off. The Client may not withhold payment of any invoice or other amount due to the Contractor by reason of any right of set-off or counterclaim which the Client may have or allege to have for any reason whatsoever.
21.9 Waiver. No failure or neglect on behalf of the Contractor to enforce any of the terms and conditions of this Contract shall be considered as a waiver unless expressly stated to be a waiver in writing by the Contractor. The waiver by either party of a breach by the other in the performance of its obligations under the Contract shall not constitute a waiver of any default nor shall failure to complain of a breach constitute a waiver of that breach by the other part.
21.10 Description. Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Client hereby affirms that it does not in any way rely on any description when entering into the Contract.
21.11 Governing Law and Jurisdiction. This Contract shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
Last reviewed: 1st January 2024 - T&Cs are subject to change
