FINANCE

GENERAL TERMS AND CONDITIONS

for the purchase of the products offered by XBody

General Terms & Conditions of XBODY Australia Pty Ltd

for the purchase orders of the products offered by XBODY Australia Pty Ltd (hereinafter: XBODY), the following general terms shall be applicable:

  1. PARTIES:     X BODY AUSTRALIA PTY LTD ACN 631 504 044                         (Vendor)

    AND:

                            (Purchaser)

    RECITALS

    1. The Vendor is the owner of the Chattels described in item 1 of the Schedule (Chattels).
    2. The Purchaser wishes to buy the Chattels from the Vendor.
    3. The Vendor has agreed to sell and the Purchaser has agreed to buy Chattels on the terms and conditions set out in this agreement.

     

    THE PARTIES AGREE:

    1. Agreement to buy and sell

    In consideration of payment of the amount specified in relation to each of the Chattels in item 2 of the Schedule (Price) by the Purchaser to the Vendor, the Vendor sells and the Purchaser buys the Chattels on the terms and conditions of this agreement.

    1. Payment

    Unless stated otherwise the Price is exclusive of GST. The Purchaser must pay the Price, plus the requisite GST if applicable. 2.   The Purchaser will pay the consideration by way of ### weekly instalments, the first of which shall be paid on ### and weekly thereafter. Any late payments shall become recoverable as a debt by the Vendor.

    1. Passing of title

    Title to the Chattels passes to the Purchaser free of encumbrances and all other adverse interests upon final payment in full by the Purchaser being received by the Vendor.

    1. Rights in relation to Chattels
      • The Vendor reserves the following rights in relation to the Chattels until the Price and any other money owed by the Purchaser to the Vendor are fully paid:
        • ownership of the Chattels;
        • to enter the Purchaser’s premises (or the premises of any associated company or agent where the Chattels are located) without liability for trespass or any resulting damage and retake possession of the Chattels.
    1. Passing of risk
      • The Purchaser accepts the risk for the chattels from the date the Purchaser takes possession of the chattels (the ‘date of possession”) and will keep in place a policy of insurance to cover the replacement value of each chattel noting the Vendor as an interested party until all of the Purchaser’s obligations under this agreement are fulfilled.
      • The Vendor shall forward the Chattels to the Purchaser via a professional carrier and the Purchaser agrees that the time of delivery may vary. The Vendor assumes no responsibility for any damage to the chattels during shipment.
      • The Purchaser will from the date of possession be responsible for all maintenance, upkeep, registration, insurance and any other cost or liability directly associated with or arising from the chattels.
      • The Purchaser from the date of possession:
        • warrants that:
          • that all persons operating the chattels have successfully completed the EMS Trainer Course offered by the Vendor;
          • that all persons participating in EMS sessions have completed an appropriate medical consent form;
          • that all persons participating in EMS sessions have no contraindications; and
          • that all persons participating in EMS sessions are medically fit to train;
        • warrants they understand and will abide by the X Body Australia Safety Protocols;
        • shall install the chattels in accordance with the user’s manual of those chattels and agrees that the Vendor shall not be liable for any damages arising from or related to the improper use of the chattels or the breach of the provisions set forth in the user’s manual. In this case the rules on warranty shall not apply;
        • shall cause any further purchaser of the chattels to be bound by the terms substantially identical to the terms of this agreement.
    1. Warranty

    The Vendor offers the Purchaser a warranty on the chattels subject to the detailed terms contained in the chattel user’s manual on general terms as follows:

    • The Vendor shall offer full replacement, refund, repair or other appropriate solution on the following devices within the following time periods commencing on the date of possession:
      • electronic muscle stimulator device (head unit): 24 months;
      • electronic stimulation unit: 12 months;
      • electrodes: 60 months;
      • cables: 6 months;
    • The above warranty is conditional upon the Purchaser:
      • notifying the Vendor of the full details of the defects of the chattels within 7 days of the date of possession;
      • returning the warranty sheet and invoice to the Vendor within 21 days of the date of possession; and
      • returning the chattel/s in the same condition and packaging as at the date of possession within 21 days of the date of possession;
      • at all relevant times, with regards to any repairs during the warranty period, acting in a reasonable and businesslike manner and not causing the Vendor to incur unreasonable costs. The Vendor reserves the right at their discretion to reasonably suspend or retract the warranty if the Purchaser acts in a defamatory, harassing or otherwise unlawful or unreasonable manner towards the Vendor and its employees or contractors.
    • The purchaser shall bear any costs associated with returning the chattels to the Vendor;
    • This warranty applies for defects in the manufacture of the chattels and does not apply for defects arising from or related to improper use of the chattels, transport of the chattels, or the natural attrition of such. In case of repairs stemming from warranty claims, the warranty period shall be extended with the time of repair. In case of head unit-replacements, the warranty period is restarted for the new unit;
    • This warranty shall immediately cease if the Purchaser does not use or utilise the chattels in a proper manner including as per the terms of this agreement and any user manual, if the Purchaser defaults on payments under this agreement, or if during the Warranty anyone other than an employee or contractor of the Vendor accesses the chattels for repair or maintenance;
    • The Purchaser agrees to the Vendor registering, storing and processing the personal data of the Purchaser for warranty claims and other purposes associated with the supply of the chattels and the Vendor shall not use the Purchaser’s personal data for any other reason except as required by law.
    • The Purchaser agrees to the enter a Service Agreement with the Vendor for the period of commercial operation to maintain and service the equipment. The Vendor offers a device backup guarantee to be sent within 24 hours, service and support (up to three hours per month) and software updates.
    1. Termination
      • The Vendor party may terminate this agreement if the Purchaser is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 7 days after sending of a written notice by the Vendor requiring rectification of the breach.
      • Exercise of the right of termination afforded to the Vendor under this clause will not prejudice the legal rights or remedies which the Vendor may have against the Purchaser in respect of a breach of any term, condition or warranty of this agreement.
      • The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
    2. Amendment

    This agreement is not to be amended except in writing signed by each of the parties.

    1. No Representations or Warranties
      • The Purchaser acknowledges and agrees:
        • the Chattels are purchased in its present state and condition.
        • The Purchaser relies entirely upon his own skill and judgement and no warranty whatever is given as to the quality or fitness for any particular purpose of the Chattels, nor is there any conditional warranty that they shall be merchantable;
        • The Chattels are sold with all faults, flaws, imperfections and errors whether discoverable by inspection or not.
        • Any representation or warranties arising by operation of law is expressly negatived to the fullest extent possible;
        • no promise, representation, warranty, undertaking or condition shall be deemed to be implied in this agreement or to arise between the parties by way of collateral or other agreement or by reason of any promise, representation, warranty or undertaking given or made by the Vendor to the Purchaser on or prior to the making of this agreement;
        • the existence of any such implication or collateral or other agreement is expressly negated.
      • The Purchaser has not been induced to enter into this agreement by any statement made or given by or on behalf of the Vendor.
      • This agreement constitutes the whole of any promises, representations, warranties or undertakings made in relation to the sale of the Chattels by the Vendor.
      • It is the intention of the parties that this clause shall not merge on completion.
    2. Costs
      • Each party will pay their own costs in relation to this Agreement.
    3. Guarantee
      • In consideration of the Vendor entering into this Contract where the Purchaser is a company limited by shares or guarantee (“the Company”), the Company Directors signing this Contract (“the Directors”) agree that regardless of whether the Directors sign in their personal capacity the Directors jointly and severally covenant and agree with the Vendor that the Directors will personally perform and observe the terms and conditions of this Contract in the event of default of such performance by the Company and that the Directors will indemnify and keep the Vendor and his estate and effects indemnified from and against all losses, damages, costs, charges and expenses by reason of any breach, non‑performance or non‑observance of any of the conditions on the part of the Company contained or implied in this contract.
      • The Directors obligations under this Guarantee are not affected by the parties failing to complete the Contract when due, or the Vendor giving the Purchaser extra time to comply with an obligation under this Contract or the Vendor failing to insist on strict compliance with the terms of this Contract.
    4. Proper law

    This agreement is made subject to the law of New South Wales.

    1. Counterparts

    This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which the counterparts are exchanged. This Agreement is binding on the parties on the exchange of counterparts. A copy of the counterpart sent by email must be treated as an original counterpart, is sufficient evidence of the execution of the original, and may be produced in evidence for all purposes in place of the original.

     

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