Terms and Conditions
1 Interpretation
1.1 In these Conditions:
"CLIENT" means the person named on the Specification Sheet for whom the Supplier has agreed to provide the Services in accordance with these Terms;
"CONTRACT" means the contract for the provision of the Services;
"DOCUMENT" includes, in addition to a document in Writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form;
"INPUT MATERIAL" means any Documents or other materials, and any data or other information provided by the Client relating to the Services;
"OUTPUT MATERIAL" means any Documents or other materials, and any data or other information provided by the Supplier relating to the Services;
"SPECIFICATION SHEET" means the sheet to which these Terms are appended (on website);
"SERVICES" means the services to be provided by the Supplier for the Client and referred to in the Specification Sheet;
"SUPPLIER" means GymHunter Ltd (registered in England under number 5948769);
"SUPPLIER'S STANDARD CHARGES" means the charges shown in the Supplier's brochure or other published literature (including its website) relating to the Services from time to time.
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Supply of the Services
2.1 The Supplier shall provide the Services to the Client subject to these Terms. Any changes or additions to the Services or these Terms must be agreed in writing by the Supplier and the Client.
2.2 The Client shall at its own expense supply the Supplier with all necessary documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Supplier to provide the Services in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
2.3 The Client shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.
2.4 The Services shall be provided in accordance with the Specification Sheet and otherwise in accordance with the Supplier's current brochure or other published literature (including its website) relating to the Services from time to time, subject to these Terms.
2.5 Further details about the Services, and advice or recommendations about its provision or utilisation, which are not given in the Supplier's brochure or other promotional literature (including its website), may be made available on written request.
2.6 The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the Client.
2.7 The Supplier may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
3 Charges
3.1 Subject to any special terms agreed, the Client shall pay the Supplier's Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Services or which, in the Supplier's sole discretion, are required as a result of the Client's instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
3.2 The Supplier shall be entitled to vary the Supplier's Standard Charges from time to time by giving not less than one months' notice to the Client. Such notice shall be deemed properly given if published on its website.
3.3 All charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.4 The Supplier shall receive payment for the Services on an annual basis prior to the service commencing, or at other times agreed with the Client.
3.5 Any additional sums payable to the Supplier shall be paid by the Client (together with any applicable Value Added Tax, and without any set off or other deduction) within 30 days of the date of the Supplier's invoice.
4 Provision of the Services
4.1 During the Term the Supplier shall provide the Client with the Services.
4.2 The Services shall be provided by the Supplier on a yearly basis.
4.3 The Supplier shall:
4.3.1 provide all such materials and facilities as are necessary for the proper and efficient provision of the Services; and
4.3.2 co-operate with any other contractor or service provider of the Client for any purposes connected with this agreement, as necessary from time to time or as expressly requested to do so in writing by the Client.
4.4 The Client shall provide the Supplier with such information as the Supplier may reasonably request in order to enable the Supplier to provide the Services.
5 Rights in Input Material and Output Material
5.1 The property and any copyright or other intellectual property rights in:
5.1.1 any Input Material shall belong to the Client
5.1.2 any Output Material shall, unless otherwise agreed in writing between the Client and the Supplier, belong to the Supplier.
5.2 Any Input Material or other information provided by the Client which is so designated by the Client and any Output Material shall be kept confidential by the Supplier, and all Output Material or other information provided by the Supplier which is so designated by the Supplier shall be kept confidential by the Client; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
5.3 The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
5.4 Subject to paragraph 5.3, the Supplier warrants that any Output Material and its use by the Client for the purposes of utilising the Services will not infringe the copyright or other rights of any third party, and the Supplier shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
6 Warranties and Liability
6.1 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the Specification Sheet.
6.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Client.
6.3 Except in respect of death or personal injury caused by the Supplier's negligence, or as expressly provided in these Terms, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier's charges for the provision of the Services, except as expressly provided in these Terms.
6.4 The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations in relation to the Services, if the delay or failure was due to any cause beyond the Supplier's reasonable control.
7 Duration of agreement
7.1 This agreement shall commence on the Commencement Date and, subject to the following provisions, shall continue for a period of 1 year.
7.2 The Customer may forthwith terminate this agreement by giving written notice to the Supplier if the Supplier:
7.2.1 commits a material breach of this agreement and, if the breach is capable of being remedied, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
7.2.2 goes into liquidation or administration, has a receiver appointed over any of its assets or makes a voluntary arrangement or composition with its creditors (in each case, within the meaning of the Insolvency Act 1986).
7.3 The Supplier may forthwith terminate this agreement by giving written notice to the Customer if the Customer:
7.3.1 fails to pay any sum payable by it under this agreement within 30 days of the due date for payment;
7.3.2 commits a material breach of this agreement (other than one to which clause 8.3.1 applies) and, if the breach is capable of remedy, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
7.3.3 goes into liquidation or administration, has a receiver appointed over any of its assets or makes a voluntary arrangement or composition with its creditors (in each case, within the meaning of the Insolvency Act 1986).
7.4 For the purposes of clauses 7.2.1 and 7.3.2, a breach of any provision of this agreement shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
7.5 No time or indulgence granted by either party shall be considered a waiver of any provision by that party, and no waiver by either party of a breach of this agreement shall be considered a waiver of any subsequent breach of the same or any other provision.
7.6 The termination of this agreement for any reason shall not affect any accrued right or liability of either party arising under this agreement and shall not affect any other right or remedy of either party.
7.7 The expiry of this agreement shall not affect:
7.7.1 any payment which is owing by either party to the other;
7.7.2 any other accrued rights of either party; or
7.7.3 any provision of this agreement which is expressed to come into force or continue in force on or after termination.
8 Confidentiality
8.1 Except as provided by paragraph 9.2 or as authorised in writing by the other party, each party shall at all times during the Term and for 3 years after the termination of this agreement:
8.1.1 keep secure all Confidential Information of the other party;
8.1.2 not disclose any Confidential Information of the other party to any other person;
8.1.3 not use any Confidential Information of the other party for any purpose other than as contemplated by and subject to the terms of this agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Document containing or recording any Confidential Information of the other party; and
8.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of this clause 8.1.
8.2 Either party may:
8.2.1 disclose any Confidential Information of the other party to:
(a) a sub-contractor, supplier or customer of that party or any of its professional advisers;
(b) a regulatory authority to which it is required to disclose the Confidential Information in question; or
(c) any employee or officer of that party or any of the persons mentioned in (a) or (b) above;
to the extent only that the disclosure is necessary for the purposes of performing its obligations or exercising or enforcing its rights under this agreement, and in each case subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to a Regulatory Authority or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made;
8.2.2 disclose any Confidential Information to the extent that the party in question is required by law to do so; and
8.2.3 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that:
(a) it is at the date of this agreement, or at any time after that date through no fault of that party becomes, public knowledge; or
(b) it was, before being disclosed to or obtained by that party, known to that party; or
(c) it is, after being disclosed to or obtained by that party, disclosed to that party by a third party otherwise than in breach of an obligation of confidentiality.
8.3 Upon the termination of this agreement for any reason, each party shall (except to the extent referred to in paragraphs 8.2.2 and 8.2.3) cease to use, and shall forthwith deliver up to the other party or destroy, any Document in its possession or control containing or recording any Confidential Information in respect of which that party has any continuing obligation under paragraph 8.1.
8.4 The provisions of this clause 8 shall continue in force, notwithstanding the termination of this agreement for any reason.
9 Warranties and indemnities
9.1 Each party warrants to the other that:
9.1.1 it has the necessary authority to enter into this agreement;
9.1.2 the entry into and performance of this agreement by that party will not breach any contractual or other obligation owed by that party to any other person, any rights of any other person or any other legal provision; and
10 Liability
10.1 neither party shall have any liability to the other party arising out of or in connection with this agreement for any indirect, special or consequential loss of the other party; and
10.2 the terms of this agreement do not limit or affect the Client's statutory rights.
11 Applicable law and jurisdiction
11.1 English law shall apply to the whole of this agreement.
11.2 Any dispute arising out of or in connection with this agreement shall be subject to the non-exclusive jurisdiction of the English courts, to which the parties agree to submit.
12 General
12.1 These Conditions (together with the terms, if any, set out in the Specification Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
12.2 A notice required or permitted to be given by either party to the other under these terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4 If any provision of these terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and the remainder of the provision in question shall not be affected.
12.5 Any dispute arising under or in connection with these terms or the provision of the Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President.