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Terms & Conditions

Gym Imports Direct Pty Ltd T/A Gym Equipment Direct

Terms and Conditions

 

These Terms and Conditions of Trade (“Terms and Conditions”) apply to all products and services supplied by Gym Imports Direct Pty Ltd (ABN 62 623 086 064) trading as Gym Equipment Direct (“the Company”, “Seller”, “we” or “us”) for you (“the Customer”, “Buyer” or “you”), unless otherwise agreed in writing. These Terms and Conditions (which can only be waived in writing by the Company) shall prevail over the Terms and Conditions of the Customer’s order to the extent of any inconsistency.

 

  1. DEFINITIONS

    1. Seller – Gym Imports Direct Pty Ltd T/A Gym Equipment Direct, its successors and any person acting on behalf of and with the authority of Gym Imports Direct Pty Ltd T/A Gym Equipment Direct.

    2. Buyer – Any person or company buying the Products and Services as specified in any quotation, order, invoice or document. If there is more than one Buyer, Buyer is a reference to each Buyer jointly and severally.

    3. Products & Services – All Products and Services supplied by the Seller to the Buyer at the Buyer’s request as specified in the quotation, order and/or invoice.

    4. Online Order – An order for Products and Services placed online via - www.gymequipmentdirect.com.au

    5. Custom Order – An order for Products and Services that have specific requirements for the Buyer.

    6. Wholesale Order – An order for Products and Services from a Buyer that is a business or retail shop.

    7. Order Confirmation – Buyer has placed an order online, via phone or email for products and services required.

    8. Product Price – Price payable for Products and Services as agreed between the Seller and the Buyer, including any costs payable in connection with the delivery of the Products and Services.

    9. Installation Price - Price of assembling and installing the Products per the order, including the removal of packaging.

    10. Delivery – The delivery of Products to the Buyer’s requested Delivery Address. Delivery does not include unloading or installation of such Products.

    11. Delivery Address – The specified location, by the Buyer, in which the Products are to be delivered.

    12. Delivery Date – The date the Products are expected to arrive at the Delivery Address.

    13. Delivery Time – The time Products are expected to arrive at the Delivery Address.

    14. Trademarks - Any trademark which the Seller authorises the Buyer, in writing, to use in connection with the Buyer’s marketing, sale and distribution of Products.

 

  1. INTERPRETATION

In these Terms and Conditions, unless the context requires otherwise, the headings are used for convenience only and do not affect the interpretation of these Terms; the word “person” includes a natural person and any body or entity whether incorporated or not; the singular includes the plural and vice versa; and the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.

 

  1. ACCEPTANCE

    1. This document sets out the Terms and Conditions on which the Seller will supply Products and/or Services to the Buyer. All Products and Services purchased by the Buyer are supplied by the Seller under these Terms and Conditions.

    2. The Buyer is taken to have accepted and is immediately bound, jointly and severally, by these Terms and Conditions if the Buyer places an order for Products and/or Services.

    3. These Terms and Conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Buyer and the Seller.

 

  1. TITLE

    1. The Seller and the Buyer agree that ownership of the Products shall not pass until:

  1. the Buyer has paid the Seller all amounts owing to the Seller; and

  2. the Buyer has met all of its obligations to the Seller.

    1. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized.

 

  1. RISK

    1. Risk of damage to or loss of the Products passes to the Buyer on Delivery.

    2. The Seller shall insure the Products against theft or any damage until such Products have been delivered in full.

    3. If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Products. The production of these Terms and Conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

    4. If the Buyer requests the Seller to leave the Products at an unattended location, then such Products shall be left at the Buyer’s sole risk.

    5. The Seller is not liable for any loss of or damage caused once the Products have arrived at the Delivery Address.

    6. The Seller does not accept responsibility for Products lost in transit.

 

  1. CHANGE IN CONTROL

    1. Where the Buyer is a Company or Corporation:

      1. The Buyer shall give the Seller no less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone number/s, or business practice).

      2. The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.

    2. Where the Buyer is a Trustee:

  1. the Buyer agrees to produce a stamped copy of the trust deed (including all amendments) at any time requested by the Seller in writing;

  2. the Buyer warrants that it has the full power and authority to enter into this agreement on behalf of the trust and that it shall be bound by the terms and conditions hereunder.

 

  1. PRODUCTS

The Buyer acknowledges that many manufacturers brand an identical product with more than one name. The Buyer acknowledges that the Seller or the manufacturers may deliver the exact item the Buyer ordered except that it may have a brand that differs from the image on the website. The Seller advises the Buyer to undertake further research into products the Buyer intends to purchase, and is not responsible for variations between product description on the website and those of the actual product.

 

  1. ONLINE ORDER

When placing an Online Order, if an item is out of stock, a notification will appear on the product page and again on the checkout page advising Product/Products are out of stock and the expected date that stock will be replenished. By submitting your Online Order you are acknowledging and accepting that the delivery of the Product/Products will be delayed.

 

  1. CUSTOM AND WHOLESALE ORDERS

    1. When placing a Custom Order or Wholesale Order, the Seller may provide the Buyer with a written quote.

    2. If the Buyer signs the quote or otherwise gives the Seller instructions, in writing, to proceed with the supply of Products per the Order, the Buyer will be deemed to have accepted the Terms and Conditions set out in the Order. It is the Buyer’s responsibility to read the Order carefully to ensure it accurately reflects the Buyer’s instructions and Products ordered.

    3. Each Order that is accepted by the Seller will create a separate contract between the parties for the supply by the Seller of the Products specified in the Order. The contract will incorporate these Terms and Conditions and those items contained in the Order (for example details of the Products being supplied, Product Price and Delivery Date).

    4. Custom Orders can not be cancelled. The Buyer acknowledges that cancellation of custom products ordered or variations to an Order after confirming an Order may result in loss of deposit or any monies paid to the Seller by the Buyer unless otherwise agreed to by the Seller.

 

  1. DELIVERY ADDRESS

Products will be delivered to the Delivery Address specified by the Buyer and must be accessible by a delivery vehicle or truck.

 

  1. DELIVERY DATE

    1. Any Delivery Date given by the Seller to the Buyer is an estimate only.

    2. The Buyer must accept Delivery of the Products even if delivered after the Delivery Date or Delivery Time notified by the Seller. The Seller will not be liable for any loss or damage incurred by the Buyer as a result of the Products being delivered after the Delivery Date or Delivery time notified by the Seller.

 

  1. DELIVERY TIME

    1. The Seller is unable to provide an exact Delivery Time on a nominated day as all Products are delivered by a third party.

    2. Any Delivery Time range specified in the Order is indicative only and the Seller will not be liable for any failure to observe these Delivery Times.

    3. Order Cancellation due to delayed delivery will not be allowed unless agreed to by the Seller.

 

  1. DELIVERY

    1. Delivery of Products is taken to occur at the time that the Seller or the Seller’s nominated carrier delivers the Products to the Buyer’s nominated Delivery Address.

    2. The Buyer must take Delivery by receipt of the Products whenever they are tendered for Delivery. In the event that the Buyer is unable to take Delivery of the Products as arranged, the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.

    3. Delivery of the Products to a third party nominated by the Buyer shall be deemed to be Delivery to the Buyer for the purposes of this agreement.

    4. The Seller may deliver the Products in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions of these Terms and Conditions.

    5. Delivery of Products does not include unloading or the installation of Products.

    6. Standard Delivery refers to deliveries that do not require a Tailgate Delivery. Parcels less than 25kg will be delivered to the front door of the Delivery Address nominated. For orders over 25kg, it is the Buyer’s responsibility to unload products from the delivery vehicle, not the nominated carrier’s responsibility.

    7. Tailgate Delivery refers to delivery of heavy products that require the nominated carrier to unload the products from a delivery truck. Once products are unloaded from the truck, it is the Buyer’s responsibility to move their Products to their desired location. Tailgate deliveries will incur an additional charge.

    8. It is the Buyer’s responsibility to ensure the Products ordered can fit through doorways and easy access is provided. Please Note - Second Hand Cardio Equipment will be delivered fully assembled therefore may not fit through single doorways.

 

  1. INSTALLATION, SERVICING AND MAINTENANCE

    1. The Buyer acknowledges that the Seller may sub-contract some or all of their obligations to a third party for installation, servicing and maintenance. The nominated third party will be required to comply with these Terms and Conditions.

    2. Installation Price includes assembling and installing the Products per the Order and the removal of packaging and debris.

    3. In the event where access is difficult (for example, stairs, single doorways or lifts), additional charges may apply.

 

  1. CANCELLATIONS AND VARIATIONS

    1. The Buyer acknowledges that Cancellation of Products ordered or variations to an Order after confirming an Order may result in loss of deposit or any monies paid to the Seller by the Buyer unless otherwise agreed to by the Seller.

    2. Notwithstanding any other provision of these Terms and Conditions or any Order, the Seller reserves the right not to proceed to supply Products to the Buyer at their absolute discretion at any time. If the Buyer has made any payment to the Seller prior to the date upon which the Seller provides notice of their decision not to supply Products, the Seller will refund the payment to the Buyer in full.

    3. Custom Orders and Used/Second Hand Gym Equipment cannot be cancelled. The Buyer acknowledges that cancellation of Custom Products and Used/Second Hand Gym Equipment ordered or variations to an Order after confirming an Order may result in loss of deposit or any monies paid to the Seller by the Buyer unless otherwise agreed to by the Seller.

 

  1. PRICE

    1. At the Seller’s sole discretion, the Price shall be either:

  1. as indicated on the website – www.gymequipmentdirect.com.au; or

  2. as indicated on any invoice provided by the Seller to the Buyer; or

  3. the Seller’s quoted price which will be valid for a period of seven (7) days.

    1. The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested.

    2. The Price quoted is based on all items listed in that quotation. If any items are removed from the Order, pricing may change.

    3. Unless otherwise stated, the price includes GST.

 

  1. PAYMENT

    1. All Products remain the property of the Seller until the Products and Services are paid for in full.

    2. Online Orders must be paid upfront and in full.

    3. Custom and Wholesale Orders will be invoiced upfront and in full at Order Confirmation, with payment requirements of:

  1. 100% upfront for Orders with a total value of $5,000 or less;

  2. 70% as a deposit for Orders with a total value of $5,001 or more. Payment of deposits must be made within 5 business days of the invoice date without any deduction or set off; and

  3. 30% balance prior to Products being dispatched and delivered.

    1. The Seller reserves the right to adjust pricing and not to dispatch and deliver any Products until payment is received in full.

    2. For Custom and Wholesale Orders, where Products are ordered outside of Australia, the Buyer must strictly adhere to the Seller’s payment terms. If the Buyer fails to pay monies on due dates, the Buyer is responsible for any foreign currency fluctuations (losses), and any charges relating to wharf detention, cartage and/or warehousing costs incurred by the Seller due to non-payment. These charges will be invoiced separately and will require payment before dispatch and delivery of Products.

 

  1. ADDITIONAL CHARGES

    1. Additional charges will be payable prior to the release of Products, in the event of:

  1. Redelivery – the freight carrier’s redelivery fee will be passed on to the Buyer if access is difficult or not granted on the specified Delivery Date and Time.

  2. Wharf Detention – for Custom and Wholesale Orders, if imported Products have arrived to an Australian Port and payment from the Buyer has not been received in full or by the due date, wharf charges may apply.

  3. Third Party Logistics and Storage - $10+ GST per standard pallet per week if Products have not been paid for at the time of delivery and must be warehoused on the Buyer’s behalf until payment is received.

  4. Devanning - for Custom and Wholesale Orders, if imported Products have arrived to an Australian Port and the Buyer cannot accept full container delivery, Products can be unpacked from the container, palletised and delivered via a smaller truck. These ‘Devanning’ costs will be the responsibility of the Buyer.

  5. Tailgate Delivery – if Products ordered weigh in excess of 25kgs and cannot be hand unloaded from the delivery vehicle, a Tailgate Delivery is required. If the Buyer has not requested or paid for a Tailgate Delivery, this fee will be passed on to the Buyer and must be paid before delivery can occur.

    1. Additional charges will apply for Difficult Access (for example, single door access, steps/stairs, confined spaces etc.) upon installation of Products and will be charged on a case by case basis.

    2. All charges quoted here are subject to change at any time.

 

  1. DEFAULT

    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate)

    2. If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonor fees).

    3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these Terms and Conditions the Seller may suspend or terminate the supply of Products to the Buyer. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.

    4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

  1. any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;

  2. the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

 

  1.  

  2. DEFECTS AND RETURNS

    1. The Buyer must inspect the Products on Delivery and must within three (3) days of Delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Products as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Seller to inspect the Products if required. The Buyer acknowledges that no claims outside this period will be made. For any minor issues, the Seller will assist the Buyer over the phone.

    2. The Seller makes no warranties or other representations under these Terms and Conditions including but not limited to the quality or suitability of the Products. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.

    3. If the Seller agrees to accept return of Products, Products must be wrapped securely for transit and labeled. Returns will be sent at the Buyer’s own expense unless agreed otherwise.

    4. If the Seller is required to replace the Products, but is unable to do so, the Seller may refund any money the Buyer has paid for the Products.

    5. The Buyer is liable for the payment of products until the Seller has received the products back and in new, re-sellable condition. Only then will a refund of the product (and cost of reasonable postage in the event of a faulty product) be issued as agreed.



  1. INTELLECTUAL PROPERTY

    1. Nothing in these Terms and Conditions transfers or assigns to the Buyer any Intellectual Property Right owned or used under license by the Seller.

    2. The Buyer acknowledges that:
      (a) all Intellectual Property Rights remain with the Seller; and
      (b) all goodwill and other rights and interests arising from the Buyer’s use of any Trademarks vests in the Seller.

    3. The Buyer must not during the term or after termination of these Terms and Conditions:
      (a) infringe any Intellectual Property Rights owned or used under license by the Seller; or
      (b) apply for registration as a trademark, domain name, business or company name any word or logo that is the same as, substantially identical with or deceptively similar to any of the Trademarks or any other Intellectual Property Rights of the Seller.

    4. The Seller will have the right, but not the obligation, to commence proceedings or take other actions for possible infringement of the Trademarks or any Intellectual Property Right associated with the Seller or the Products. Any money paid or damages or costs awarded as a result of those proceedings or actions, is for the Seller’s benefit.

    5. Where the Seller has designed, drawn or developed Products for the Buyer, then any Intellectual Property Rights in any designs and drawings and documents shall remain the property of the Seller.

    6. The Buyer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe the Intellectual Property Rights of any person in the execution of the Buyer’s order and the Buyer agrees to indemnify the Seller and its officers, employees, contractors and agents against any action taken by a third party against the Seller in respect of any such infringement.

    7. The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products, which the Seller has created for the Buyer.

 

  1.  

  2. TERMINATION

    1. Without prejudice to the Seller’s rights under any other provision of these Terms and Conditions or at law, on the occurrence of any of the following events the Seller will be entitled to immediately stop supply of Products and terminate these Terms and Conditions:

  1. if in our reasonable opinion you bring the Seller’s reputation into disrepute;

  2. if you commit an act of dishonesty or fraud;

  3. if you cease to carry on business;

  4. where you become insolvent or placed under administration, have a controller appointed, go into receivership, enter liquidation, are ‘wound up’, or otherwise become unable to pay debts when they fall due;

  5. where you fail to rectify to our reasonable satisfaction any material breach of these Terms and Conditions committed by you within thirty (30) days of receiving the written notice identifying the breach and requiring rectification;

  6. where for any reason these Terms and Conditions are or become wholly or partially void, voidable, ineffective or unenforceable and that event has or could have a substantial material impact on the relationship between the parties.

    1. In the event of termination pursuant to clause 25.1, you will be liable to pay to us all outstanding monies and any other substantiated costs that we have incurred in accordance with these Terms and Conditions up to the date of termination as a debt immediately due and owing to us.

 

  1. INDEMNITY

    1. The Buyer agrees to indemnify the Seller, and to keep the Seller and all related entities indemnified at all times, from and against any and all loss (including consequential loss and loss of profit), damage or liability, legal fees and all other costs and expenses incurred by the Seller or any of our related entities as a result of a breach by the Buyer of any of these Terms and Conditions or the neglect or default of, or any act, matter or thing permitted or omitted by you or your employees, agents or permitted assigns arising from or in connection with these Terms and Conditions.

 

  1. LIMITATION OF LIABILITY

    1. To the fullest extent permitted by law and except as specifically provided in these terms and conditions, all express and implied warranties and conditions under statute or general law as to merchant ability, description, quality, suitability or fitness for any purpose or otherwise, are expressly excluded.

    2. In the event that we are liable to you under these Terms and Conditions, to the maximum extent permitted by section 64A of the Australian Consumer Law (as set out in set out in Schedule 2 to the Competition and Consumer Act 2010), if the products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Seller limits its liability, at its discretion to (a) the replacement of the Products or the supply of equivalent products, (b) the repair of the products, (c) the payment of the cost of replacing the Products or of acquiring equivalent Products, or (d) the payment of the cost of having the goods repaired.

    3. To the fullest extent permitted by law, the company shall not be responsible or liable for any special, indirect or consequential loss or damage.

 

  1. PRIVACY AND MARKETING

    1. By entering into these Terms and Conditions, you agree to:

  1. be bound by the terms of our Privacy Policy which can be found at www.gymequipmentdirect.com.au; and

  2. receive relevant information and materials regarding our product offerings (“the Information”). The Information will be sent to you via electronic message as defined pursuant to the Spam Act 2003 (Vic) from us or our permitted agents.

 

  1. FORCE MAJEURE

    1. We shall not be liable to you or to any third party for any failure to supply or delay in supplying the products caused (in whole or in part) by an event beyond our control including (without limitation) labor shortages, labor disputes, data-communication delays, inability to obtain products or supplies, fires, civil disobedience, mechanical breakdown, weather, acts of God, government action or regulation, computer software error or any similar event. In those circumstances we can delay supply of relevant types of products without any liability.

 

  1. GOVERNING LAW

    1. The construction, validity and performance of these Terms and Conditions are governed by the laws of the State of Victoria and the Commonwealth of Australia.

 

  1. WAIVER

    1. If a party fails to or delays in exercising any right or power under these Terms and Conditions, this will not be a waiver of that right or power. Any failure or delay will not prevent a party from exercising that right or power in the future.

 

  1. ENTIRE AGREEMENT

    1. These terms and conditions supersede and replace any arrangements, representations, understandings or agreements made or existing between the Customer and the Company and (except as otherwise may be agreed in writing) constitute the entire agreement relating to the supply of the Products.

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