Morpheus Gym Design Ltd
TERMS & CONDITIONS
For Design, Supply & Installation Services
1.1 In these Terms & Conditions:
|Client”||means the person named as the Client in the Quotation|
|Contract”||means the contract between the Client and the Supplier for the Services comprising the Quotation, these Terms & Conditions and the other documents specified in the Quotation;|
|Contract Price”||means the price payable by the Client to the Supplier for the Services, as shown in the Quotation (and as varied in accordance with the Contract);|
|“Goods”||means the goods (including any instalment or any parts of them) which we are to supply to you in accordance with these conditions as confirmed on our Order Acknowledgement;|
|“Delivery Date”||means the date for delivery by us to you of the Goods and/or the date of commencement of provision of the Services as detailed in the Order Acknowledgement;|
|Equipment”||means the equipment and materials referred to in the Quotation to be installed at the Site|
|“Order Acknowledgement”||means the order acknowledgement which we send to you confirming details of your order for Goods and/or Services, the Price and the Delivery Date;|
|“Price”||means the total price for the Goods and/or Services as detailed in the Order Acknowledgement subject to variation as provided in Condition 3.4 and including VAT;|
|Quotation”||means the Supplier’s signed Quotation referring to these Terms & Conditions;|
|“Regulations”||means the Consumer Protection (Distance Selling) Regulations 2000 as amended from time to time;|
|Services”||means the supply and installation services described in the Quotation.|
|Site”||means the place where the Equipment is to be installed and the Services carried out.|
|“Supplier” “We” or “Us”||means Morpheus Gym Design Limited (Company No. 7772800) whose registered office is at 49 Harrowby Street London, W1H5ED;|
|“VAT”||means value added tax;|
1.1 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.3 The schedules and background form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules and background.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes and e-mail.
1.7 Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to clauses and schedules are to the clauses and schedules of this agreement.
2. CONTRACT FORMATION
Acceptance of the Supplier’s Quotation or Order Acknowledgement by the Client constitutes the Contract for the Supplier to carry out the Services in accordance with these Terms & Conditions.
3. GENERAL OBLIGATIONS OF SUPPLIER
3.1 The Supplier shall exercise reasonable skill and care in the performance of the Services.
3.2 The Supplier shall give not less than 24 hours notice of the date when the Supplier requires access to the Site.
3.3 The Equipment shall comply with the description in the Quotation but if any Equipment to be purchased for the Contract is not available, the Supplier will inform the Client and provide suggestions for equipment of comparable quality and specification.
4. GENERAL OBLIGATIONS OF CLIENT
4.1 The Client shall give the Supplier access to the Site as required by the Supplier to enable the Supplier to carry out and complete the Services without interference by the Client or by other suppliers or contractors of the Client.
4.2 The Client shall also provide at his expense any facilities reasonably required by the Supplier (which may include secure storage for equipment and materials, power supply, water etc.).
4.3 The Client is solely responsible for obtaining any planning permission required for the Services and for any permits and licences needed in the course of the Services unless otherwise agreed in writing by the parties.
4.4 The Client shall ensure that the Order Acknowledgment is correct in every detail before supply of the Goods and Services commences. For the avoidance of doubt the Supplier shall be entitled to assume that the Order Acknowledgement is entirely correct, accepted and shall act accordingly to fulfil the Order if the Client has not indicated that the Order Acknowledgement is not correct within 48 hours of dispatch of the Order Acknowledgement.
5.1 If the Client wishes to omit or vary any of the Services (or Goods) he must inform the Supplier in writing who shall, as soon as practicable, notify the Client of the estimated cost of the variation and the likely effect on the Contract period and Completion Date.
5.2 Unless the Client withdraws his request for a variation when he receives the Supplier’s estimate, the Contract Price will be adjusted in accordance with the Supplier’s estimate (or as otherwise agreed between the Client and the Supplier) and an appropriate extension of time for completion of the Services shall be agreed.
5.3 If a variation is made orally, it shall not be valid unless the Supplier confirms it in writing within 3 working days of the oral communication.
5.4 The Supplier shall notify the Client if he encounters 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 the date for completion will be made.
5.5 The Supplier reserves the right not to comply with any requests for a variation which would increase the value of the Services by more than 25% of the original Contract Price.
5.6 Your order for Goods and/or Services shall be deemed to have been accepted by us only once the Goods have been delivered and/or provision of the Services has commenced.
6. CONTRACT PRICE & PAYMENT
6.1 The Contract Price is stated in the Quotation and it may be varied in accordance with these Conditions.
6.2 The Client shall pay the Supplier the Contract Price in accordance with the payment terms in the Quotation.
6.3 The Supplier shall be entitled to full payment for all equipment in advance as specified in the Quotation and the Supplier’s invoice for the payment shall be paid by the Client before any order for Equipment is placed by the Supplier.
6.4 If the Client fails to pay any amount properly invoiced, the Supplier can give 7 days notice to suspend all or part of the work until the payment is received. Any period of suspension will entitle the Supplier to any additional costs he incurs as well as an extension of time for completion of the Services. If full payment of the outstanding amount is received by the Supplier before expiry of the notice period, the suspension notice will be cancelled.
6.6 Late payment entitles the Supplier to interest at the statutory rate of interest and costs under the Late Payment of Commercial Debts (Interest) Act 1999 from the due date until the date of actual payment.
6.7 Prices are quoted inclusive of VAT.
6.8 You shall have no right to set off any counterclaim or deduction against any monies which are payable by you to us.
6.9 Full payment for all gym equipment is required within 7 days of receipt of invoice. The Price is payable with return of the Quotation and payment schedule signed by the Client, the Goods will not be delivered and/or the Services not commenced until full payment has been received from the Client.
6.10 For Building Services, a 30% deposit will be required with your order, and three further payments of 30%, 30% and 10% respectively. The second and third payments will be payable as set out in the schedule with the final payment of 10% due within 7 days of building work completion.
6.11 In the event of default in payment by the due date then, without prejudice to any other remedy that we may have, we reserve the right at any time to impose a late payment charge of 2% per annum above Lloyds TSB base rate from time to time (both before and after any judgment) or part thereof on monies overdue, not to carry out any repair or replacement pursuant to these terms, to suspend any further deliveries or suspend completion of the provision of the Services, and to recover from you all of our legal or other costs incurred as a result.
6.12 We may at any time or times, without notice to you, set off any of your liabilities to us against any of our liabilities to you, whether any such liability is present or future (whensoever arising), liquidated or unliquidated, arising under the Contract or otherwise. Our rights under this clause are without prejudice to any other rights or remedies available to us under the Contract or otherwise.
7. PROPERTY AND RISK
7.1 The risk of loss or damage to the Equipment at the Site, except when caused by wilful default of the Supplier, rests with the Client who should insure the risks at his expense.
7.2 Risk of damage or loss shall pass to the Client at the time of delivery.
7.3 Claims for loss or damage to Goods in transit must be made by the Client directly to the Supplier within 3 days of receipt of the goods.
7.4 If a claim is made pursuant to clause 7.3 and the Goods following inspection by the Supplier are not found to be defective, the Client shall be liable for the costs of inspection.
7.5 If the Goods are found to be defective, the Supplier shall at their sole discretion replace them or credit the Client with the Good’s invoiced value or part thereof and this shall be the limit of the Supplier’s liability in this regard.
7.6 Title to the Goods shall not pass to the Client until payment has been made in full in cleared funds for the goods pursuant to an applicable invoice.
7.7 Pending transfer of title pursuant to clause 7.6, the Client shall keep the Goods separate from the Client’s own property and that of any third party, properly stored protected insured and identified as the property of the Supplier.
7.8 If the invoiced sum is not settled within 7 days of the invoice date the Supplier shall have the right to re-enter the Clients premises to repossess and remove the Goods.
8. INSURANCE & LIABILITY
8.1 Unless otherwise stated in the Quotation, the Supplier shall be responsible for insurance of the Services to their full value
8.2 The Supplier shall take out and maintain the following insurances:
Public Liability Insurance for £5,000,000.
8.3 Each party shall provide the other upon request during the Contract period evidence that the insurances for which it is responsible are in place.
8.4 Our entire financial liability in respect of;
8.4.1 Any breach by us of the agreement; and
8.4.2 Any representation, statement or tortuous act or omission including negligence arising from the supply of the Goods and/or the Services;
Shall be limited to the amount paid by you for the Goods and/or the Services.
8.5 We shall not be liable to you in any circumstances for any loss of profit, loss of business, depletion of goodwill or for any indirect, special or consequential loss.
8.6 We give no representation or warranty as to any health benefits of use of the Goods or that use of the Goods is a suitable treatment for any medical condition. If your customers or persons who you allow to use the Goods are suffering from any medical condition they must consult a doctor prior to use of the Goods. We shall have no liability to you, your customers or persons who you allow to use the Goods, for death or personal injury caused by use of the Goods otherwise than in accordance with instructions or for the purpose for which the Goods were not designed.
8.7 We shall have no liability to you for damage to your property caused during installation unless you notify us of such damage within 7 days of installation.
8.8 Nothing in this agreement limits or excludes the Supplier’s liability for:
8.8.1 death or personal injury caused by its negligence;
8.8.2 fraud or fraudulent misrepresentation;
8.8.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
8.8.4 any other liability which cannot be limited or excluded by applicable law.
9. DURATION, HANDOVER & DEFECTS LIABILITY
9.1 The Supplier shall notify the Client within 5 working days of becoming aware of any event beyond his control which may prevent or delay completion of the Services. The notice shall specify the cause of the delay, the likely effect on the completion date and the Supplier’s proposals for dealing with the matter. The completion date shall then be extended as agreed by the parties or, failing agreement, decided under clause 13. The Supplier acknowledges that he must take reasonable steps to mitigate or reduce any delay.
9.2 The Supplier shall give the Client notice of his intention to hand over the Services and give the Client the opportunity to inspect the Services prior to handover. The Supplier shall then confirm the date of handover to the Client.
9.3 When the Contract provides for Equipment to be tested on completion, unless otherwise agreed in writing, the Client shall perform the tests under the supervision of the Supplier.
9.4 Any defect must be notified promptly and in any event within 7 days of the Client becoming aware of the defect. When the Supplier accepts that the defect is the Supplier’s responsibility, the Supplier shall have the option either to repair or replace the defective Services.
9.5 The Supplier shall be responsible for remedying defects in the Services which appear within 6 months from the date of handover and which are promptly notified to the Supplier by the Client who shall give the Supplier full access to carry out any remedial Services. Defects in design or materials supplied by the Client, and defects attributable to fair wear and tear, accidental damage, or to misuse or failure by the Client to comply with any operating or maintenance manuals shall not be the responsibility of the Supplier.
9.6 Where any of the Equipment supplied by the Supplier has the benefit of a manufacturer’s warranty, the Supplier shall take steps to procure that the Client has the benefit of that warranty. The Supplier shall not be liable for any defect in the Equipment and the Client’s remedy will be with the manufacturer (except to the extent that a defect is due to the Supplier’s proven negligence).
9.7 Except for his liability to remedy any defect for which he is responsible and which is notified to him within 6 months of the handover date, the Supplier shall have no liability to the Client (whether in contract or in tort or for breach of statutory duty) save as specified in clause 8.
9.8 All terms, conditions and warranties implied by law, trade use or otherwise (including but not limited to any warranties as to quality or fitness for purpose) are excluded to the extent permitted by law. The Client acknowledges that the only warranties are those given expressly by the Supplier in these Terms & Conditions.
9.9 Carriage and/or installation on deliveries within mainland UK may be payable. It is your responsibility to ensure that we have access to and that your premises are suitable for delivery and installation of the Goods.
9.10 We shall arrange for the delivery and installation of the Goods unless otherwise specified in the Order Acknowledgment.
9.11 Goods may be collected by you from the premises notified to you for those purposes, provided payment of the Price is made by you before or at the time of collection or the Price has been charged to an approved credit account beforehand.
9.12 The Goods will be delivered to you and installed (if required) and/or the Services will be provided at the address stated in the Order Acknowledgment.
9.13 Whilst we shall make every reasonable effort to deliver and install the Goods and/or commence provision of the Services by the Delivery Date, the Delivery Date is given as an estimate only and we shall not be liable to make good any damage or loss arising directly or indirectly from delay or advance in delivery.
9.14 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these Conditions shall not entitle you to treat the Contract as a whole as repudiated.
9.15 At least two weeks written notice must be given by you to us of any change likely to affect delivery or installation of the Goods or commencement of provision of the Services.
9.16 We reserve the right to charge storage where you delay delivery or installation of the Goods more than three months after the date of delivery or installation stated in the Order Acknowledgment. This rate will be 3% above the current bank base rate, multiplied by the sales contract value of the goods in storage.
9.17 You will be liable for any charges incurred during the delivery and installation of the Goods if any mechanical devices are required to make the physical delivery and installation.
9.18 Our liability under this Condition 9 in respect of Goods is limited to the replacement of parts that in our opinion are defective. Such defective parts will be repaired or replaced with new parts, new or reconditioned units, as we may deem reasonable in the circumstances.
9.19 This Clause 9 does not cover:
9.19.1 Any equipment repairs resulting from the installation of parts or accessories that have been carried out by a technician that has not been approved by us;
9.19.2 Goods that have not been maintained periodically as detailed in any instruction or operation manual relating to the Goods at the intervals specified;
9.19.3 Modifications or alterations that have been carried out which have neither been provided for nor authorised by us or which have been carried out without complying with the technical instructions specified by us;
9.19.4 Equipment that has been vandalised, abused, including overloading, or cases where you or the user has not complied with the instructions given in any instruction or operation manual;
9.19.5 Routine maintenance, periodical checks and adjustments;
9.19.6 The replacement of parts subject to normal wear and tear taking into account the usage of the Goods;
9.19.7 Damage by natural elements (e.g. ﬂoods) or resulting from accidents;
9.20 Repairs carried out under this Clause do not extend the period of validity of any guarantee. Parts or units removed for replacement under this clause become our property. In the case of a change of ownership, subsequent owners will benefit from the remaining period of the guarantee provided that the conditions of application have been continuously followed by each of the owners
10.1 The Supplier may give notice to terminate the Contract if the Client fails to make any payment to the Supplier within 7 days of the payment date or commits any other material breach of the Contract.
10.2 The Client may give notice to terminate the Contract if the Supplier commits a material breach 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.
10.3 Either party may terminate the Contract if the other party becomes insolvent or has a receiver, manager or administrative receiver or liquidator appointed.
10.4 Termination shall not affect the accrued rights and liabilities of the parties at the termination date.
10.5 If you are a consumer for the purposes of the Regulations you may cancel any order for Goods at any time up to 7 days from delivery of the Goods by written notice to us provided that;
10.5.1 You return the Goods and pay for the cost of return; and
10.5.2 You retain possession of the Goods and take reasonable care of the Goods until return.
10.6 Subject to the Client complying with clause 10.5 We shall refund to you the price paid for the Goods (less any deductions which we are legally entitled to make) within a period not exceeding 30 days beginning with the day on which the notice of cancellation was given by you.
10.7 If you fail to return the Goods in accordance with clause 10.5 then we may charge you for the direct costs of recovering the Goods.
10.8 If you, if a natural person, die or be subject of an order under the Mental Health Act 1959, of if any distress or execution is levied upon your property or assets, or if you shall offer to make a scheme or arrangement with creditors or commit any act of bankruptcy or, being a company, have a receiver, manager or administrative receiver appointed over any part of your undertaking or assets, or if a resolution for the winding up of the company be passed then we 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 terminated but without prejudice to any other rights which we may have.
11. INTELLECTUAL PROPERTY
All copyright and other intellectual property rights in designs and documents prepared by the Supplier shall remain the sole property of the Supplier. The Client shall have a licence to use them, but only for the purposes for which they were prepared. The Supplier shall have a similar licence in respect of drawings and documents issued to him by the Client.
12. FORCE MAJEURE
The Supplier shall not have any liability to the Client if prevented from performing the Contract on account of force majeure which includes, but is not limited to severe weather conditions, fire, flood, epidemic, war, terrorism, strikes or difficulty in obtaining materials or labour. In any of these circumstances, the Supplier shall promptly notify the Client and has the right to cancel or suspend the Services.
13.1 The parties will endeavour to settle any dispute or difference amicably by direct negotiation.
13.2 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 shall 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.
13.3 Any dispute that is not resolved by negotiation or adjudication shall be finally settled by the courts of England and Wales.
13.4 The Contract is governed by the laws of England and Wales.
Every notice shall be in writing and delivered by hand or sent by first class post to the address of the recipient. A notice sent by post shall be treated as having been received two working days after posting. A notice delivered by hand shall be treated as having been received at the time of delivery unless this is after the normal working hours of the recipient, in which case delivery shall be treated as occurring at 9.00 a.m. on the next working day.
Neither party shall assign any of its rights or obligations under the Contract without the prior written consent of the other.
The Supplier shall be entitled to subcontract any and/or all of the Services. Subcontracting shall not relieve the Supplier of his obligations under the Contract and the Supplier shall procure that any subcontractor operates with due regard to the obligations of the Supplier under this Agreement as if the subcontractor was a party to this agreement.
14.4 Entire Agreement.
The Contract is the only agreement between the parties and supersedes any previous arrangements, agreements or understandings relating to the Services and Goods.
Any amendment to the terms of the Contract shall only be effective if in writing and signed by an authorised signatory of the Client and the Supplier.
14.6 No Reliance on Warranties.
The Client acknowledges that he has not relied on and shall 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.
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 which is legally enforceable.
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 any default constitute a waiver of that default by the other party nor shall it be considered a waiver of any subsequent breach of that or any other provision.