TERMS AND CONDITIONS
The Supplier has developed and manufactured equipment entitled the “AquaBase”® made from PVC and hi-tech durable fabric for use in gyms, swimming pools and in open water for health and fitness exercises.
The Supplier has agreed to provide the Equipment as set out in the invoice and on the terms and conditions set out below.
b. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
‘Brand Guidelines’ the brand guidelines issued by the Supplier relating to the use of the Equipment as amended from time to time;
‘Business Day’ a day other than a Saturday, Sunday or a public holiday in the UK;
‘Customer’ the customer specified on the invoice;
‘Delivery Date’ the delivery date of the equipment to the Customer;
‘Documentation’ the Brand Guidelines, operating manuals, user instructions, technical literature and all other related materials supplied to the Customer by the Supplier for the use of the Equipment as amended from time to time;
‘Equipment’ the training and equipment supplied by the Supplier to the Customer as detailed on the invoice;
‘Equipment Warranty’ the warranty given by the Supplier under clause 10 of this Agreement;
‘Intellectual Property Rights’ patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;
‘Licence’ a separate written licence agreement between the Customer and the Supplier for use of the Supplier Marks for a specific purposes other than as set out in this Agreement;
‘Location’ the Customer’s premises where the Equipment is to be supplied;
‘Price’ the price for the Equipment to be provided under this Agreement as specified in the invoice;
‘Supplier’ Aqua Physical Limited, a company registered in England and Wales with company number 09349121;
‘Supplier Intellectual Property Rights’ all Intellectual Property Rights owned by the Supplier which shall include without limitation all Intellectual Property Rights that subsist in the Equipment, the Documentation and the Supplier Marks;
‘Supplier Marks’ the trademarks “AquaBase”® (registration number 3102050) “FloatFit”® (registration number 3131138) and “AquaPhysical”® (registration number 310978) and any other marks or brands used by the Supplier; and
‘Warranty Period’ a period of 12 months commencing on the Delivery Date.
The Supplier agrees to:
sell the Equipment to the Customer free from encumbrances;
provide on-line and phone support to Customers during the hours of 9am to 5pm GMT each Business Day;
The Supplier reserves the right prior to delivery of the Equipment to substitute the Equipment for any other item agreed to be supplied under this Agreement provided that such substitution will not materially affect the performance of such item and will not result in any increase in the Price.
Each invoice shall be deemed a separate offer by the Customer to purchase the Equipment under the terms of this Agreement, which the Supplier shall be free to accept or decline at its absolute discretion.
Any order will be deemed as accepted by the Supplier and Customer on full or partial payment of the invoice or receipt of a valid Purchase Order from the Customer
Acceptance by the Supplier of an Order in accordance with clause 3.2 shall constitute a legally binding contract between the parties under the terms of this Agreement.
Where an Order is accepted by the Supplier, the Price shall be paid by the Customer in full, and in cleared funds, to the Supplier either in cash or by credit card or BACS transfer to the bank account detailed on the invoice.
The Price is in accordance with the Supplier’s standard scale of charges in force on the date of this Agreement. The Price is exclusive of any applicable VAT and other sales tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law against submission of a valid tax invoice.
The Supplier shall have the right to charge interest on any overdue sums at rate of 4% per year above the base rate of Barclays Bank calculated from the date when payment of the sums becomes due up to and including the date of actual payment whether before or after judgment.
Incoterms for delivery will be set out on the invoice – these will include but not be limited to:
CPT – carriage paid by the Supplier to the chosen destination of the Customer – but the Supplier is not responsible for insurance or import duties.
Ex works – carriage must be arranged and paid for by the Client. The SUpplier will give the Client details of the packaging dimensions and make the items available to the Client for collection
DAP – Delivered to Port, items are insured by the Supplier until arrival at the designated port – liability transfers to the Client once goods are unloaded
On the Delivery Date the Supplier shall deliver the Equipment to the Location but time shall not be of the essence.
The Price of delivery will be set out on the invoice. Customs and duties charges remain the responsibility of the Customer at all times
The Equipment is deemed delivered on the completion of unloading of the Equipment at the Location.
Title and Risk
The title to the Equipment shall pass to the Customer on payment in full of the Price.
Risk in the Equipment shall pass to the Customer on delivery unless stated differently in the Incoterms used on the invoice as per the above. Accordingly the Customer shall be responsible for insuring the Equipment against all normal risks with effect from the time risk passes.
Should risk in the Equipment have passed to the Customer prior to title, the Customer shall remain at all times responsible for the Price if the Equipment, its packaging or any identifying marks are damaged, removed, defaced or obscured in any way whatsoever. This clause 6.3 shall survive termination of this Agreement.
The Customer undertakes to provide the Supplier promptly with any information which the Supplier may reasonably require from time to time to enable the Supplier to proceed uninterruptedly with the performance of this Agreement.
When using the Equipment the Customer shall at all times comply with all applicable health and safety laws, statutes and regulations from time to time in force.
Cancellation and Amendments
If the Customer wishes to cancel the Order in respect of all or any part of the Equipment (other than for any material breach of this Agreement by the Supplier as would entitle the Customer to terminate) then the Customer shall be entitled so to do at any time up to 14 days prior to the Delivery Date upon giving written notice to the Supplier and upon paying to the Supplier all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of cancellation
Until the Supplier shall have received the cancellation charges due under clause 8.1 above the Customer’s notice of cancellation shall be of no effect and the Supplier may treat this Agreement as subsisting.
The Supplier may cancel the Order at any time up to 14 days prior to the Delivery Date.
Should the Customer wish to amend an Invoice after it is accepted by the Supplier in accordance with clause 3, it must contact the Supplier immediately prior to the Delivery Date. It shall be at the Supplier’s sole discretion whether it accepts or rejects any amendments to the Invoice. The Supplier may charge an administration fee for any amendments it agrees to undertake
The Supplier may terminate this Agreement immediately on giving notice in writing to the Customer if the Customer fails to pay any sum due under the terms of this Agreement and such sum remains unpaid for 7 days after written notice from the Supplier that such sum has not been paid.
Either party may terminate this Agreement if:
the other commits a material breach of this Agreement and fails to remedy that beach within 14 days of it being notified to do so by the other party; or
the other party takes any step or action in connection with its entering administration, provisional liquidation, arrangement with its creditors (other than in relation to a solvent restructuring), being wound up, having a receiver appointed to any of its assets, ceasing to carry on business or, if the Customer is outside of the UK, any procedure in that jurisdiction that has the same effect.
Any termination of this Agreement (howsoever caused) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly, or by implication, intended to come into or continue in force on or after such termination.
The Supplier warrants that the Equipment will be free from defects in material workmanship throughout the Warranty Period
If within the Warranty Period the Supplier receives written notice from the Customer of any breach of the Equipment Warranty then the Supplier shall at its own expense and within a reasonable time after receiving such notice repair or, at its discretion, replace the Equipment or such parts of it as are defective, or otherwise remedy such defect. The Supplier shall have no liability or obligations under the Equipment Warranty unless it receives written notice of the defect in question by no later than the expiry of the Warranty Period. The title to the Equipment or any defective parts originally supplied to the Customer shall revert to the Supplier upon the supply of replacement Equipment or parts.
The Supplier shall have no liability or obligations under the Equipment Warranty other than to remedy any notified breaches by the provision of materials and services within a reasonable time and without charge to the Customer. If the Supplier fails to comply with the obligations of this clause 10 the Supplier’s liability for such failure shall be limited to a sum equal to the Price. The foregoing states the entire liability of the Supplier whether in contract or tort for defects in the Equipment notified to it after the Delivery Date other than liability assumed under clause 10.1.1.
The Equipment Warranty is contingent upon the proper use of the Equipment by the Customer in accordance with the Documentation and does not cover any part of the Equipment which has been modified without the Supplier’s prior written consent, which has been subjected to unusual physical stress or on which the original identification marks have been removed or altered. Nor will the Equipment Warranty apply if repair or replacement of parts is required as a result of causes other than ordinary use, including without limitation, accident, hazard or other environmental conditions.
Fitness for Purpose
The Supplier does not give any warranty that the Equipment is fit for any particular purpose unless that purpose is specifically advised to the Supplier in writing by the Customer prior to delivery and the Supplier confirms in writing that the Equipment can fulfil that particular purpose.
The Supplier does not warrant that the Equipment will achieve any particular performance criteria unless the Supplier has specifically guaranteed such criteria in writing.
Exclusion of other Warranties
Except as expressly provided in this Agreement no warranty, condition, undertaking or term express or implied statutory or otherwise as to the condition, quality, performance merchantability, durability or fitness for purpose of the Equipment is given or assumed by the Supplier and all such warranties, conditions, undertakings and terms are hereby fully excluded.
The Customer warrants that they have not relied on any oral representation made by the Supplier or upon any descriptions illustrations or specifications contained in any catalogues and publicity material produced by the Supplier. The Customer acknowledges that all catalogues and publicity material produced by the Supplier are only intended to convey a general idea of the Equipment and services offered by the Supplier.
The Customer warrants that it will fully comply with the installation instructions as provided by the Supplier from time to time (whether verbal or in writing) and will ensure that the Equipment is used and stored in accordance with all Documentation.
The Supplier shall provide the Customer with one copy of the Documentation containing sufficient information to enable proper operation of the Equipment. If the Customer requires further copies of the Documentation or any part of the Documentation, then these may be provided by the Supplier in accordance with its standard scale of charges from time to time in force.
Removal of Labels
The Customer shall not change, remove or obscure any labels, plates, insignia, lettering or other markings which are on the Equipment or its packaging at the time of delivery.
Intellectual Property Rights
The Customer acknowledges and understands that the Supplier is the owner of the Supplier Intellectual Property Rights.
Except as set out in clause 14.3 or as permitted under a Licence, the Customer shall not use the Supplier Marks without the prior written consent of the Supplier.
If the Customer wants to refer to the Equipment 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 Supplier Marks in the format set out in the Brand Guidelines.
If the Customer wants to use the Supplier Marks for any other purpose (including without limitation in relation to a fitness class) it must obtain a Licence from the Supplier which may be subject to an additional fee.
The Customer may not register any trademarks or website domain names, or use subdomains, that include the Supplier Marks or anything confusingly similar.
The Customer shall inform the Supplier as soon as it becomes aware of any infringement or potential infringement of the Supplier Intellectual Property Rights and shall assist the Supplier, wherever possible, in the protection of the Supplier Intellectual Property Rights, including but not limited to, the Equipment, Documentation and the Supplier Marks.
Except in respect of injury or death of any person (for which no limit applies) the respective liability of the Supplier and the Customer shall not exceed the Price.
Notwithstanding anything else contained in this Agreement, the Supplier shall not be liable to the Customer for loss of profits or contacts or any indirect or consequential loss whether arising from negligence, breach of contract or otherwise.
In this Agreement Unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
references to numbered clauses are references to the relevant clause to this Agreement;
the headings to the clauses of this Agreement will not affect the interpretation;
any reference to an enactment, regulation or rule includes reference to that enactment, regulation or rule in England and Wales as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment, regulation or rule;
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done; and
any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the Invoice, the provision in the body of this Agreement shall take precedence.
Nature of Relationship
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 3 months, the non-affected party may terminate this Agreement by written notice to the other party.
All notices under this Agreement shall be in writing and must be in each case addressed to the most recent address, email address, or facsimile number notified to the other party as set out in the Invoice.
If any provision of this Agreement is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the remainder of this Agreement.
Successors and Assignees
This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
Unless a party expressly waives its rights in writing no delay, neglect or forbearance by either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
This Agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.
The Supplier may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Supplier shall remain liable for such performance and shall indemnify the Customer against any loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors.
Choice of Law
This Agreement and all matters arising from it and any dispute arising shall be governed by and construed in accordance with English law and referred to the exclusive jurisdiction of the English Courts.