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Terms and Conditions

FITNESS-IN-COMPANY LIMITED TERMS AND CONDITIONS OF SALE 1. INTERPRETATION 1.1 In these Conditions: “Business Day” means any day other than a Saturday, Sunday or bank holiday; "Buyer" means the person who agrees to purchase Goods from the Seller; "Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in writing between the Buyer and the Seller; "Contract" means the contract for the purchase and sale of the Goods under these Conditions; “Delivery Date” means the date on which the Goods are to be delivered as stipulated by the Seller; “Deposit” means a non-refundable deposit payable when the Order Form is accepted by the Seller; "Goods" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions; “Month” means a calendar month; "Seller" means FITNESS-IN-COMPANY LIMITED registered in England under (company number 04810506) and whose registered office is at Cranley, Hardwick Hill, Chepstow NP16 5PN; “Website” means www.fitco.co.uk; "Writing" includes electrical mail, facsimile transmission and any comparable means of communication; 1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. 1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation. 2. BASIS OF THE SALE 2.1 The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions contained or referred to in any documentation submitted by the Buyer, or in correspondence or elsewhere or implied by trade, custom, practice or course of dealing. 2.2 No variation to these Conditions shall be binding, unless agreed in writing between the authorised representatives of the Buyer and the Seller. 2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods, unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed. 2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. 2.5 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. 2.6 Any typographical clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller on the Website shall be subject to correction without any liability on the part of the Seller. 3. ORDERS AND SPECIFICATIONS 3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing (by email or otherwise) by the Seller's authorised representative. 3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms set out in any Order (including any applicable specifications) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. 3.3 The quantity, quality and description of and any specification for the Goods shall be those set out on the Seller’s Website (if accepted by the Buyer) or the Buyer's Order (if accepted by the Seller). 3.4 The Goods will only be supplied in the minimum units (or multiples) stated in the Seller’s price list. Orders received for quantities other than those will be adjusted accordingly. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists, on the Website or otherwise are issued by the Seller as a guide only and shall not be binding on the Seller. 3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or where the Goods are to be supplied to the Seller's specification which do not materially affect their quality or performance. 3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. 3.7 All intellectual property rights and, without prejudice to the generality of the foregoing to include copyright, design right, patents, trade marks and know-how, whether registered or not, in drawing designs, specifications, samples and the Goods remain the absolute property of the Seller and the Buyer hereby assigns to the Seller any said intellectual property rights in the Goods or the designs for those Goods which arise as a result of the performance of this Contract. 4. PRICE OF THE GOODS 4.1 The price of the Goods shall be the Seller's quoted price on the Seller’s Website provided it is still current. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer. 4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange, fluctuation, currency, regulation, alteration of duties, significant increase in the costs of labour materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. 4.3 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller. 4.4 The Seller reserves the right to invoice and also require payment of the price and quote for orders in Pounds Sterling, Euros or such other currency as it may, from time to time, decide. 4.5 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, or by agreement in writing by the Seller, all prices are inclusive of the Seller’s charges for packaging and transport, however, the Buyer shall meet the cost of any special packaging which it may request or which may be necessitated by delivery by any means other than the Sellers normal means of delivery. The Buyer shall, unless otherwise agreed, be solely responsible for the disposal of all packaging in accordance with all regulations, whether statutory or otherwise, relating to protection over the environment. 5. ORDER OF EVENTS AND TERMS OF PAYMENT 5.1 The Buyer shall order the required Goods through the ordering system on the Seller’s Website and payment shall be required in full. 5.2 The Seller shall send the Buyer confirmation in writing of acceptance of the Buyer’s Order which may be in electronic format. 5.3 No Order of the Buyer shall be deemed to be accepted by the Seller until confirmation in writing has been received. 5.4 The Seller shall issue to the Buyer a Delivery Date which is subject to the conditions set out at condition 6. 5.5 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection, or (as the case may be) the Seller has tendered delivery of the Goods. 5.6.1 The Buyer shall pay the price of the Goods within thirty days of the end of the month of the Seller's invoice and the Seller shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. 5.6.2 If, in the Seller’s opinion, the Buyer’s creditworthiness deteriorates before delivery of the Goods, the Seller may require full or partial payment of the price prior to delivery or the provision of security by the Buyer in a form acceptable to the Seller. 5.7 The Seller can in its absolute discretion from time to time require full or partial payment of the price of the Goods prior to delivery. 5.8 If the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: 5.8.1 cancel the contract or suspend any further deliveries to the Buyer; 5.8.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and 5.8.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 3% per cent per annum above National Westminster Bank Plc base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purposes of calculating interest). 6. DELIVERY 6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place in the United Kingdom specified in the Buyer's order and/or the Seller's acceptance as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection. 6.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer. 6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. 6.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon given written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 9.1 of these Conditions risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure. 7. NON-DELIVERY 7.1 If the Seller fails to deliver the Goods or any of them on the Delivery Date other than for reasons outside the Seller's reasonable control or the Buyer's or its carrier's fault:- 7.1.1 if the Seller delivers the Goods at any time thereafter the Seller shall have no liability in respect of such late delivery; 7.1.2 if the Buyer gives written notice to the Seller within three Business Days after the Delivery Date and the Seller fails to deliver the Goods within five Business Days after receiving such notice the Buyer may cancel the order and the Seller's liability shall be limited to the excess (if any) of the cost of the Buyer (in the cheapest available market) of similar goods to those not delivered over the price of the Goods not delivered. 8. INSPECTION/SHORTAGE 8.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be. 8.2 Where the Goods cannot be examined the carriers note or such other note as appropriate shall be marked “not examined”. 8.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Seller within three days of delivery detailing the alleged damage or shortage. 8.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer. 8.5 Subject to condition 8.3 and condition 8.4, the Seller shall make good any shortage in the Goods and where appropriate replace any goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage. 9. RISK AND PROPERTY 9.1 Risk of damage to or loss of the Goods shall pass to the Buyer: 9.1.1 in the case of Goods to be delivered at the Seller's premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or 9.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods. 9.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due. 9.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property but shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and in the case of tangible proceeds properly stored, protected and insured. 9.4 The Buyer agrees with the Seller that the Buyer shall immediately notify the Seller of any matter from time to time affecting the Seller’s title to the Goods and the Buyer shall provide the Seller with any information relating to the Goods as the Seller may require from time to time. 9.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. 9.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. 9.7 The Buyer herein irrevocably appoints the Seller and its servants as its duly authorised agent for the purpose of entering upon any premises where the Goods are stored for the purpose of examination and/or recovery of the same at any time without notice. 10. ASSIGNMENT 10.1 The Seller may assign the Contract or any part of it to any person, firm or company. 10.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller. 11. DEFECTIVE GOODS 11.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery "condition and contents unknown" the Buyer gives written notice of such defect to the Seller within three business days of such delivery, the Seller shall at its option:- 11.1.1 replace the defective Goods within five days of receiving the Buyer's notice; or 11.1.2 refund to the Buyer the price for the goods which are defective; but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice give by the Buyer as aforesaid. 11.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller's sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer. 11.3 The Buyer shall be responsible for all and any packaging and transportation costs incurred in returning any Goods which the Seller agrees can be returned by the Buyer. 11.4 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller's approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party. 11.5 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 11.6 Where the Goods are sold under a consumer sale the statutory rights of the Buyer are not affected by these Conditions. 11.7 Except in respect of death or personal injury caused by the Seller's negligence, or as expressly provided in these Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer. 11.8 The Buyer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer's failure to comply with this condition. 12. BUYER'S DEFAULT 12.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:- 12.1.1 cancel the order or suspend any further deliveries to the Buyer; 12.1.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and 12.1.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above National Westminster Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). 12.2 This condition applies if:- 12.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or 12.2.2 the Buyer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or 12.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or 12.2.4 the Buyer ceases, or threatens to cease, to carry on business; or 12.2.5 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. 12.3 If Condition 12.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 13. LIMITATION OF LIABILITY 13.1 Subject to condition 6, condition 7 and condition 12, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: 13.1.1 any breach of these conditions; 13.1.2 any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and 13.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract. 13.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. 13.3 Nothing in these conditions excludes or limits the liability of the Seller: 13.3.1 for death or personal injury caused by the Seller's negligence; or 13.3.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or 13.3.3 for fraud or fraudulent misrepresentation. 13.4 Subject to condition 13.2 and condition 13.3: 13.4.1 the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and 13.4.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract. 14. CONFIDENTIALITY, PUBLICATIONS AND ENDORSEMENTS 14.1 The Buyer undertakes to the Seller that:- 14.1.1 the Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default; 14.1.2 the Buyer will not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises note paper visiting cards advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its Licensor; 14.1.3 the Buyer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents. 14.2 This Condition shall survive the termination of the Contract. 15. COMMUNICATIONS 15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail: 15.1.1 (in the case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or 15.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer. 15.2 Communications shall be deemed to have been received: 15.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or 15.2.2 if delivered by hand, on the day of delivery; or 15.2.3 if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day. 15.3 Communications addressed to the Seller shall be marked for the attention of Nigel Barratt at the Seller’s address.. 16. FORCE MAJEURE 16.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations. 16.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated. 16.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement. 16.4 If and when the period of such incapacity exceeds 6 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing. 17. WAIVER No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. 18. SEVERANCE If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. 19. THIRD PARTY RIGHTS A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999. 20. GOVERNING LAW AND JURISDICTION The Contract shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.
 
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