Franchisee Terms and Conditions

These conditions apply to the Equipment Supply & Services provided by

 

RECON Strength & Fitness Pty Limited.

EQUIPMENT SALE TERMS AND CONDITIONS



1. In these terms, We, our and us refer to RECON, being RECON Strength & Fitness Pty Ltd (ABN 44 646 431 825).
You and your refer to the Purchaser specified as Air Locker Training Pty Ltd (ABN 14 631 622 449).


2. These terms are the basis for our Equipment Supply (combined with our Equipment Description / Price List & Warranty Annexures), pursuant to which we offer or agree to sell to you and install Equipment. These terms donot themselves contain any commitment to sell you Equipment.


3. No amendment, alteration, waiver or cancellation of any of these Terms is binding on us unless confirmed by us in writing. A Contract will be formed upon us accepting an order from you.


4. These terms prevail over any terms that you may seek to impose in relation to our supply of Equipment and/or related Services in any document issued by you (including any terms in your purchase order).


5. We will supply, in accordance with these terms, the Equipment for the Supply Price to the Delivery Location. The Supply Price is subject to change for each order. We will notify of any such changes in advance.


6. Any date for delivery of Equipment and/or Services that we specify is an estimate only. We are not liable to you for any damage, expense, loss or liability suffered or incurred by you arising from any late delivery. We may
deliver Equipment ordered by you in instalments and you will accept each instalment.


7. Equipment is deemed to be delivered to you when:

1. the Equipment is physically delivered to you; or
2. you or your Representative takes physical possession of the Equipment,
and we provide you with our Delivery Docket or similar document evidencing delivery. Our Delivery Docket is conclusive evidence as to the description and quantity of Equipment delivered, collected and/or returned (unless you notify us otherwise in writing within 3 days of receipt).

8. Risk in the Equipment will pass to you on delivery.


9. The cost of delivery will be borne by you.


10. For the Delivery Location specified, you will ensure that:

(a) there is safe and ready access to the delivery and/or collection point for a 12 tonne truck, on ground / street level only;
(b) you provide clear rite of passage to your premises, free of any obstacles or other labour / trades, allowing for the prompt unloading of all of the Equipment from us or our Representatives’ vehicles; and
(c) notwithstanding clause 8 (b), you only assist in such loading or unloading when and as directed by, and under the supervision of, us or our Representatives.
(d) The premises must be ready for us to immediately start installation of the flooring, followed by the Equipment, upon our arrival. Any delays in this process may incur an additional labour and delivery charge to you.
(e) any other delays caused to our delivery and / or access to the site, as a result of clauses 8(a), 8(b),
8(d), or other unforeseen circumstance caused by you, may incur additional delivery charges.


11. To the extent permissible by law, you indemnify us and our Representatives against any costs, loss or liability we or they may incur in respect of death or bodily injury to any person or loss or damage to any property (including
but not limited to consequential loss or damage) directly or indirectly caused by or resulting from your failure to observe clause 10.


12. Unless otherwise stated by us in writing, our Supply Price quoted does not include GST, delivery/collection costs, insurance or government taxes or duties.


13. You will pay or reimburse us for all GST, sales tax, stamp duty and other duties, taxes and fees which we may be liable to pay in connection with the supply of Equipment.


14. We will invoice the Supply Price for the Equipment in the following instalments;

(i) 30% deposit on confirmation of order;
(ii) 50% payment seven (7) business days prior to delivery;
(iii) the balance of 20% payment at the time of its delivery to you.
15. If you fail to pay our invoice by the due date, then:
(a) we may demand immediate return of unpaid Equipment at your cost;
(b) we may charge interest on the outstanding amount at the general interest charge (GIC) daily rate published on the website of the Australian Tax Office from time to time;
(c) we may take action to recover the unpaid monies and charge you for our reasonable administration and legal /debt recovery costs; and
(d) we may disclose the details of your default along with some or all of the information provided by you in connection with the sale.
(e) we, our agents or representatives at all reasonable times, without notice, may enter into the premises (with force if reasonably necessary), and at all necessary time(s), to remain in and on any premises where the Equipment is
located in order to collect the Equipment, without being guilty of any manner of trespass and without being liable for any reasonable loss or damage incurred in enforcing our rights.

16. Title to the Equipment supplied to you will only pass to you once we have received payment in full for all amounts owing to us under the invoice in cleared funds. In the meantime, subject to clause 15, you may use the Equipment in the ordinary course of your business.


17. No order may be cancelled, modified or deferred without the prior written consent of us (which is at our sole discretion), and if consent is given, then such consent will at our election, be subject to us being reimbursed for
all losses, including loss of profits and being paid an additional cancellation fee, being the 30% deposit.


18. We warrant to you that:

a. we have the right to sell the Equipment;
b. you will have and enjoy quiet possession of the Equipment;
c. the Equipment is free of encumbrances;
d. the Equipment complies with all applicable laws; and
e. the Equipment will conform on delivery to any technical specifications provided by us.
19. Where the Equipment sold to you by us is not manufactured by us nor are sold under a name, brand or mark under which we carry on business:
a. all specifications, drawings, and particulars of weights and dimensions submitted to you, whether contained in catalogues, price lists or other advertising matter, are approximate only and do not form part of the Supply or form part of the description applied to the Equipment;
b. we shall not be liable for any alteration or variation in the Equipment from any published specifications which are made available with respect to the Equipment;
c. we agree to assign to you, on its request, the benefit of any warranty that the manufacturer has granted to us under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
20. Our liability for loss suffered or incurred by you in connection with or arising out of our Supply to you of Equipment or Services is limited to (at our election):
a. in respect of Equipment supplied:
(i) replacing the Equipment or supplying equivalent Equipment;
(ii) repairing the Equipment;
(iii) paying the cost of replacing the Equipment or of acquiring equivalent Equipment;
(iv) paying the cost of having the Equipment repaired.
b. in respect of any Services supplied:

(i) resupplying the Services;
(ii) paying the cost of having the Services supplied again.
These warranties extend only to you and to no other person.

21. Where we are liable to you in circumstances which are not covered by clause

20, then our liability to you for all events and occurrences, whether in contract, tort, under statute or otherwise, is limited to the Supply Price.

22. In addition to clauses 20 and 21:

a. we will not be liable to you, your Representatives or any other person for any indirect, economic,
special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit in connection with the Supply of any Equipment or related Services to you; and
b. you will indemnify us against any damage, expense, loss or liability suffered or incurred by us or our Representatives:
i. to the extent caused by or contributed to by your negligence, breach of the Supply terms, fraud or willful default;
ii. arising in relation to any claim in relation to the ownership, possession or use of the Equipment by you or any other person; or
iii. in exercising any of our rights or remedies under the Supply terms or which are available to us at law, in equity or under statute, except to the extent it has been caused by or contributed to by our negligence, breach of the Supply terms or fraud or willful default.

 

23. Our obligations under the Supply terms are suspended for any period that we are prevented from performing
them by any Force Majeure Event.

24. Except to the extent we have otherwise agreed with you in writing, if:

a. you fail to make any payment due under the supply terms by the due date;
b. you breach any other of the supply terms; or
c. you are subject to an Insolvency Event,
d. then (regardless of whether or not we have formally notified you of the relevant failure, breach orcircumstance), we may immediately:
e. cease further supplies of the Equipment;
f. require the immediate return of any or all of our Equipment in which we retain title; and/or
g. terminate the Supply.

 

25. All intellectual property rights in or relating to our Equipment or related Services supplied by us to you, including in relation to the development, manufacture, use, operation, repair or maintenance of the Equipment, or in
relation to any tooling, materials, drawings, samples, reports, work results and other documents, we create, remains at all times the sole and exclusive property of us or our licensor.

26. The Supply terms constitute the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter. You acknowledge and represent
and warrant to us that no representations, warranties, promises, undertakings, statements or conduct (whether express or implied):

a. have induced or influenced you to enter into, or agree to any terms of the Supply;
b. have been relied on in any way as being accurate by you;
c. have been warranted to you as being true; or
d. have been taken into account by you as being important to your decision to enter into or to agree to the Supply (or any part thereof), except those expressly set out in these terms.

27. You represent and warrant that:
a. you have the authority, power and capability to enter into and to perform your obligations under the
Supply terms;
b. your obligations under the Supply terms are binding and enforceable; and
c. the Supply terms do not conflict with or result in the breach of any material term or provision of any agreement, deed, writ, order or injunction, judgment or law to which you are a party or a subject or by which you are bound.


28. Each term of the Supply will be interpreted so as to be effective and valid under applicable law. If any term of the
Supply is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Supply terms.

29. A term of the Supply may not be waived except in writing and signed by us. The waiver by a party of a breach by
another party of any term of the Supply does not operate as a waiver of another or continuing breach by that party of that term or any other term of the Supply.

30. We may request a related body corporate to perform any of our rights or obligations under this Agreement on our behalf.

31. You will not assign or novate any of your rights or obligations under the Supply terms without our prior written consent (which we may withhold in our absolute discretion). We may assign or novate any of our rights or
obligations under the Supply terms to any person by notice to you.

32. The parties acknowledge that nothing in the Supply terms constitutes a relationship of joint venture, employment or partnership between them.

33. The Supply terms may only be amended in writing.

34. The Supply terms are to be construed in accordance with the laws of New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, and the courts competent to
determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to the Supply terms.

35. All indemnities set out in the Supply terms and any clauses which expressly or impliedly have effect after
termination will continue to be enforceable notwithstanding termination of the Supply