By:

1. completing the online order form to make a purchase; or

2. making an offer to purchase Products or services  in-store; or

3. making an offer to purchase Products or services via phone or email; or

4. receiving any products or services; or

5. contacting and exchanging correspondence with Flex Fitness Equipment for the purpose of purchasing Products,

you are offering to enter into a contract to purchase Products from Ruby Distributors Pty Ltd ACN 163 627 174 trading as Flex Fitness Equipment ABN 24 163 627 174 (Flex Fitness Equipment).

If Flex Fitness Equipment accepts your order or offer, Products will be sold to you subject to these Terms of Trade, our [SITE TERMS AND CONDITIONS], our [INSTALLATION TERMS OF SERVICE], and our [PRIVACY POLICY].

1. PRODUCT INFORMATION AND SIZES

   1. All descriptions, illustrations, particulars of weights and dimensions contained on the Site, any catalogues, price lists and other promotional and advertising materials are intended merely to give an indication of the Products and none of these shall form part of the Agreement between the Customer and Flex Fitness Equipment, unless specifically agreed to in writing. You agree to undertake your own due diligence before you place an order with Flex Fitness Equipment.

   2. Weight ratings are provided as a guide only. You agree to undertake your own due diligence and test the Products to gauge the weight rating you are comfortable with. Weight loadings and specifications and supplied by the manufacturer or Flex Fitness Equipment and Flex Fitness Equipment is not liable for such for such information. We recommend that customers do not exceed the weight loadings.

   3. We note that while most Products are compact and may be folded for storage, you must assess your area and the relevant access requirements prior to placing an order with Flex Fitness Equipment.

2. PRICING

   1. All prices shall be shown in AUD exclusive of GST and any delivery charges.

   2. The prices displayed on the Site represent the recommended retail price for the Products provided by the manufacturer or Flex Fitness Equipment or estimated in accordance with standard industry practice. The prices are comparative estimates only and may or may not represent the prevailing retail price in every area on any particular day.

   3. Despite our best efforts, a small number of Products on the Site may be mispriced. If we discover an incorrect pricing, we will do one of the following:

      1. if the Product’s correct price is lower than the price stated on the Site, we will charge you the lower amount; or

      2. if the Product’s correct price is higher than the price stated on the Site, we will at our sole discretion either:

1. contact you for instructions prior to processing your order; or

2. cancel your order and notify you of such cancellation.

4. 4. Customers acknowledge and agree Product prices do not vary according to your location; however, delivery charges will vary depending on your location.

5. SPECIAL OFFERS

   1. All specials, promotions, clearances, offers, and discounted Products advertised on the Site are available only while stocks last unless otherwise stated.

   2. Free samples and promotional giveaways of Products are not covered by clause 9 (Product Warranty).

6. PRODUCT AVAILABILITY

   1. All Products offered for sale are subject to available stock.

   2. If a product is out of stock, Flex Fitness Equipment will contact you to offer a substitute Product of at least equal quality.

   3. If you do not accept a substitute Product and your credit card has been charged for Product that is out of stock, Flex Fitness Equipment will cancel your order and issue either:

      1. a credit to your credit card account in the amount charged; or

      2. a credit note to you in the amount chaged.

7. ACCEPTANCE OF ORDER

   1. You may request and Flex Fitness Equipment may provide you with a quotation of the price and delivery charges for Products, in which case the following terms apply:

      1. The quotation is valid for a period of seven (7) days from the date the quotation is issued to the customer. The quotation will expire at the end of that period if no order is received by Flex Fitness Equipment within that allotted time.

      2. The quotation is an estimate based on rates of delivery charges, insurance, customs duty, exchange rates, costs of materials purchased overseas, wage and material costs and other factors at the time the quotation was prepared.

      3. The Customer acknowledges and agrees that the Seller may consider it necessary to adjust the quotation in light of circumstances which, in its sole discretion, have affected the cost of supplying the Products to the Customer and the Customer agrees that such an adjustment will be binding on the Customer on receiving notice by the Seller.

   2. The contract for the purchase of Products is made when Flex Fitness Equipment accepts your order by giving notice to you by email or verbally, if purchasing in-store.

   3. The Customer shall pay Flex Fitness Equipment immediately. If the Customer fails to make a payment by the due date, Flex Fitness Equipment may, without notice, withhold delivery of Products to the Customer and may terminate, without liability to the Customer, any or all subsisting contracts between Flex Fitness Equipment and the Customer.

   4. If payment is not made on the due date, Flex Fitness Equipment may charge interest on the amount payable at the rate of 5% over the 90-day bank bill rate applicable on the day the payment is due.

   5. We will not accept your order until full payment is made for Product price and applicable delivery charges.

8. CANCELLATIONS

   1. An order may only be cancelled subject to:

      1. Flex Fitness Equipment’s written approval; and

      2. subject to the Customer paying an administrative charge to Flex Fitness Equipment calculated as the total of all costs associated with the work undertaken in relation to the order up to the proposed date of cancellation.

   2. If Flex Fitness Equipment, at any time including after the acceptance of an order, considers in its sole discretion the credit of the Customer unsatisfactory, Flex Fitness Equipment may:

      1. require security for payment of the order price; and/or

      2. withhold delivery of the order until such security is received; and/or

      3. cancel the order.

   3. These terms shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.

9. PAYMENT METHODS

   1. Any purchases may be paid for using a credit card, AfterPay, and various other methods through third party merchant facilities.

   2. Flex Fitness Equipment is not responsible or has any control over any third party merchant facilities. Customers acknowledge and agree that Flex Fitness Equipment will not be liable for any loss or damage arising out of their use of a third party payment gateway. Flex Fitness Equipment advises that Customers should read and understand the terms and conditions of the third party merchant facilities before using them.

10. DELIVERY ARRANGEMENTS

    1. Your shopping basket on the Site displays the Products you have chosen and details of delivery charges and packaging:

       1. If you require special packaging, you must contact Flex Fitness Equipment immediately to make suitable arrangements. The special packaging may incur additional costs depending on the arrangements you require.

       2. The delivery charges for each Product may vary according to the delivery methods available for that particular Product.

    2. Any delivery times quoted are in Business Days.

    3. Delivery times are estimated as follows:

       1. Perth Metro – 12 hours to two (2) days, with a 4-hour express delivery available at extra cost;

       2. Adelaide Metro – three (3) to five (5) days;

       3. Sydney Metro – five (5) to seven (7) days;

       4. Melbourne Metro – five (5) to seven (7) days;

       5. Brisbane Metro – seven (7) to ten (10) days; and

       6. for deliveries outside Metro areas, please allow two (2) to five (5) days in addition to the estimated delivery times above.

    4. Express delivery is only available on weekdays.

    5. For deliveries, you or your authorised agent must be present to accept deliveries between 9.00am to 5.30pm. You warrant that a person the at the nominated delivery address is your authorised agent.

    6. To comply with Occupational Health and Safety laws and regulations, Products heavier than 40 kilograms must be unloaded and moved by more than one (1) person:

       1. For bulky Products, the delivery agent may request for assistance to unload the Product from the delivery vehicle.

       2. You agree to assist the delivery agent to unload the item from the delivery vehicle.

       3. In the event that there is no one able to assist with unloading the Product, a tail gate must be arranged prior to delivery and may incur additional costs.

    7. You acknowledge and agree that Flex Fitness Equipment uses a number of delivery agents and they may have varying delivery procedures:

       1. Most delivery agents will deliver to your door.

       2. Internal delivery, i.e. if the nominated address is located in a block of flats or above ground floor, may incur additional costs. Please confirm with the delivery agent if this is the case.

       3. Occupational Health and Safety laws and regulations may restrict the method of deliveries for Products heavier than 30 kilograms at a nominated delivery address located on the second floor or higher of a building. Please confirm with the delivery agent how they propose to complete the delivery.

    8. Re-deliveries will cost $30.00 for each delivery attempt. If no one is present at the nominated delivery address to take the delivery, the Product will be returned to Flex Fitness Equipment and you may be charged with a 20% restocking fee along with the applicable delivery charges for returning the Product back to us.

    9. If you are not likely to be at the nominated delivery address, please complete an authority to leave the Products unattended and return the same to us.

    10. Delivery times are estimates only and Flex Fitness Equipment shall not be liable for late delivery or non-delivery, including any loss, damage or delay occasioned to the Customer arising from late or non-delivery.

    11. The Customer acknowledges and agrees that the Flex Fitness Equipment does not insure the Products and the Customer agrees that Flex Fitness Equipment is not liable for any theft, damage, or loss of any kind of the Products once the delivery agent has taken the Products from Flex Fitness Equipment’s warehouse. Any loss or damage in transit will be reported directly to the freight or delivery agent for investigation.

    12. The Products shall be deemed to have been accepted by the Customer on the date when delivery has been made to the Customer’s nominated delivery address on an ex-works basis.

    13. Customers acknowledge and agree that the Products offered for sale are directed solely at Australia residents. Flex Fitness Equipment makes no representation that any Products sold through the Site are appropriate or available for use outside Australia. Customers must comply with all applicable laws and regulations of the country for which the Products are destined. Please be advised that some Products may not be deliverable overseas due to local law and it shall be your responsibility for any failure to deliver the Products overseas due to local law. We will not be liable for any breach by you of any laws.

11. PRODUCT WARRANTY

    1. Flex Fitness Equipment warrants to the Customer that the Products at dispatch will be fit for purpose at the time the Products leave Flex Fitness Equipment’s warehouse, and will meet and be in accordance with the applicable standards and laws in Australia.

    2. On Delivery

       1. Subject to clause 8.11, the Customer may only return the Products if the Products do not materially comply with the order or if the Products are Dead on Arrival or if permitted by law, provided that:

1. the Customer inspects the Products within three (3) calendar days of receipt of their delivery;

2. the Customer has stored the Products in accordance with Flex Fitness Equipment’s and the manufacturer’s or supplier’s recommendations;

3. the Customer has not altered or tampered with the Products in any way, and

if the Customer notifies Flex Fitness Equipment immediately and provide a statement of how the Products are defective or not fit for purpose with photographic evidence (Notice), then:

4. if Flex Fitness Equipment is satisfied that the Products are not fit for purpose due to no fault of the Customer or the delivery agent, then Flex Fitness Equipment may:

1. either replace or repair the defective Products; or

2. provide a credit note to the customer for the defective Products; or

3. refund the Purchase Price of the defective Products; and

5. in the event that a:

   1. refund is offered to the Customer, a 20% administration and restocking fee will be charged on the Purchase Price; and

   2. replacement is offered to the Customer, the replacement Products can take up to 14 days to be processed and delivered to the Customer after the offer is accepted by the Customer; and

6. the Customer agrees that a refund may only be offered in the event that a replacement Product is not available;

7. the Customer acknowledges and agrees that Flex Fitness Equipment is unable to refund any delivery charges paid to delivery agents; and

8. where Products have been delivered to the Customer, a refund will only be processed on return of the Products to the Flex Fitness Equipment warehouse at the Customer’s cost.

2. 2. 2. If no Notice is given in the time stipulated in clause 9.2(a), the Products will be deemed to be fit for purpose except in respect to any relevant defects not reasonably apparent on inspection.

   3. Warranty

      1. Flex Fitness Equipment offers a warranty for Products on the terms and conditions of this clause 9.3.

      2. This warranty is only valid only with a completed warranty form is completed online at flexequipment.com.au. The warranty form must be completed within 14 days from the date of purchase. Please include the product serial number (where applicable) and details of purchase.

      3. This warranty only applies to the first owner of the Products. It will not apply to any Products on-sold to third parties.

      4. This warranty only applies to Products sold for consumer use and is void when Products are used for commercial, institutional, or hire use. A separate commercial warranty is issued for Products purchased specifically for commercial use.

      5. Our liability in respect of any defect in, or failure of, the Products for any loss, injury or damage attributable to such defect or failure, is limited to repairing the defect or failure or replacement of the Products at our own cost. Refunds may only be provided if there is no replacement Product available.

      6. Our warranty period is 12 months from the date of acceptance of the Products, and is only valid for defects or failure under proper use and which arise solely from faulty design, materials or workmanship.

      7. In the case of Products manufactured or supplied by third parties, the Customer is entitled only to such benefits as we may receive under any guarantee given to us in respect such Products by the manufacturer or supplier. Without limiting the generality of the forgoing, we shall be under no liability whatsoever for any consequential loss or damage suffered by the Customer.

      8. To lodge a warranty claim, you must contact Flex Fitness Equipment by telephone or email within the warranty period. Proof of purchase from Flex Fitness Equipment will be required when lodging a warranty claim.

      9. Products must be returned to Flex Fitness Equipment at the Customer’s cost. On-site service is only available in selected areas and will incur a call-out fee of $100.00 plus GST per hour.

      10. The warranty is void if:

          1. damage to the Products resulted from lack of proper maintenance or service;

          2. Products are not maintained per specifications in the maintenance or operations guide supplied by the manufacturer or supplier;

          3. Products are not stored indoors in a dry and dust-free environment (indoors dos not include a garage, shed, a patio or any semi-outdoor environment);

          4. damage occurred in transport, improper assembly or installation, abuse, neglect, misuse in any way that, in the opinion of Flex Fitness Equipment, would affect the reliability or detracts from the performance of any part of the Product;

          5. damaged as the result of use in a way or with equipment that had not been previously approved by Flex Fitness Equipment;

          6. evidence indicates that the above activities have contributed to component failure in the Products;

          7. the Product’s serial number or serial number of any of the Product’s parts have been altered, defaced or removed;

      11. The warranty does not cover the following:

          1. cosmetic components of the Product including but not limited to plastics, grips, seats, paintwork;

          2. correction of installation of the Products;

          3. instructions to Customers on the proper usage of the Products;

          4. normal wear and tear;

          5. cosmetic damage;

          6. any labour involved in the removal and or reinstallation of warranted Products or parts on-site, or any labour required to diagnose the necessity for repair or replacement; or

          7. incidental or consequential damages arising from the use of the Products, or for any inability to use them either separate from or in combination with any other Products.

3. TITLE AND RISK

   1. Title to the Products will only pass to you upon receipt by Flex Fitness Equipment of full payment of the order.  As long as the Customer owes Flex Fitness Equipment any amount for any Product, Flex Fitness Equipment will retain the legal and equitable title with the Customer holding the Products on trust for Flex Fitness Equipment.

   2. Risk to the Products passes to the Customer once the Products are collected from Flex Fitness Equipment’s warehouse by the delivery agent. The Customer will be responsible for insuring the Products from the time they leave Flex Fitness Equipment’s warehouse.

4. PPSA

   1. Until full payment of the order has been received by Flex Fitness Equipment, the following terms in this clause 11 applies. All capitalised words in this clause 11 have the same meaning as defined under the Personal Property Securities Act 2009.

   2. The Customer acknowledges and agrees that the terms of this Agreement creates a PMSI in the Products and their proceeds supplied presently and in the future by Flex Fitness Equipment to the Customer. As such, the Customer agrees to do all things necessary and execute all documents reasonably required to register the PMSI granted by the Customer under the terms of this Agreement and to ensure that Flex Fitness Equipment acquires a perfected Security Interest in the Products under the PPSA.

   3. The Customer further agrees that:

      1. the Products supplied by Flex Fitness Equipment secures the payment of the Purchase Price of the Products supplied by Flex Fitness Equipment;

      2. it will not register a Financing Change Statement in respect of a security interest contemplated or constituted by this Agreement without Flex Fitness Equipment’s prior written consent;

      3. it will not register or permit to be registered a Financing Statement or Financing Change Statement in relation to the Products in favour of a third party without Flex Fitness Equipment’s prior written consent;

      4. that the Products  provided under this Agreement is collateral for the purposes of the PPSA;

      5. that this Agreement is a Security Agreement for the purposes of the PPSA;

      6. it will do all the things necessary including providing all information Flex Fitness Equipment requires to register a Financing Statement or Financing Change Statement (as defined under the PPSA) on the PPS Register (PPSR) as a Security Interest pursuant to the PPSA;

      7. it will not change its name, ACN or ABN or other details required on the PPSR, without first notifying Flex Fitness Equipment;

      8. it waives its rights to receive a verification statement in respect of any Financing Statement or Financing Change Statement in respect of the Security Interest created pursuant to the terms of this Agreement;

      9. it must pay Flex Fitness Equipment’s costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement;

      10. unless otherwise agreed in writing the parties hereto agree not to disclose information of the kind referred to in section 275(1) of the PPSA to any interested person, or any other person requested by an interested person and the Customer waives any right it may have but for this clause under section 275(7)(c) of the PPSA to authorise the disclosure of the above information; and

      11. in the event that this Agreement is not executed by the Customer, the Delivery of the Products by Flex Fitness Equipment to the Customer shall constitute adoption or acceptance by the Customer of the terms and conditions set out in the this  Agreement.

   4. The Customer consents to Supplier affecting and maintaining a registration on the Register (in any manner it considers appropriate) in relation to any Security Interest contemplated or constituted by this Agreement in the Products and the proceeds arising in respect of any dealing in the Products.

   5. The Customer agrees to sign any documents and provide all assistance and information to Flex Fitness Equipment required to facilitate the registration and maintenance of any Security Interest.

   6. Section 115(1) of the PSSA allows for the contracting out of provisions of the PPSA and to the maximum extent permitted by law, the Customer agrees that the following sections of the PPSA will not apply: Sections 95, 96, 118, 121, 125, 130, 132, 135, 142 and 143.

   7. Section 115(7) of the PSSA allows for the contracting out of provisions of the PPSA and to the maximum extent permitted by law, the Customer waives any rights the Customer may have pursuant to, and hereby contract out of the following sections of the PPSA: Sections 127, 129(2) and (3), 130(1), 132, 134(2), 135, 136(3), (4) and (5) and 137.

5. INTELLECTUAL PROPERTY

   1. The Customer will not intentionally deface, obscure or remove from any of Flex Fitness Equipment’s Intellectual Property from Products (where applicable). In no circumstances shall the Customer repackage the Products under any other name or purport to sell the Products under any other name.

   2. Flex Fitness Equipment is the exclusive owner of all of its Intellectual Property. The Customer may not challenge or dispute Flex Fitness Equipment’s ownership of the Flex Fitness Equipment Intellectual Property. The Customer must not do anything or omit to do anything which could detrimentally affect the ownership of Flex Fitness Equipment’s Intellectual Property.

6. LIMITATION OF LIABILITY AND INDEMNITY

   1. The Customer will be solely responsible for all Loss or damage arising out of any acts or omissions by the Customer or any of its agents, servants or contractors in connection with the sale of the Products for all Claims for damage to property or for injury or death of any persons or animals directly or indirectly resulting therefrom and the Customer agrees to indemnify and hold harmless Flex Fitness Equipment from any and all such claims, losses and damages, including legal fees.

   2. To the fullest extent permitted by law, Flex Fitness Equipment’s liability to the Customer (whether such liability is in contract, tort, negligence or for breach of any warranty, representation or statute) for any Products provided by or on behalf of Flex Fitness Equipment, or for any act or omission done in connection with the subject matter of this Agreement, will be limited in aggregate to an amount equal to the Purchase Price for the Order in respect of which the liability arose.

   3. Notwithstanding the foregoing, in no circumstances will Flex Fitness Equipment be liable for any loss of interest, revenue, profit or any data, or for any consequential, indirect, incidental or special damages suffered by the Customer or any third party arising from or relating to the subject matter of this Agreement.

   4. The Customer indemnifies Flex Fitness Equipment, each of its directors, employees and agents (those indemnified) for any liability, cost, expense, Loss or damage suffered by any of those indemnified (including legal fees on a solicitor and own client cost basis) as a result of or in connection with:

      1. any infringement of Flex Fitness Equipment’s Intellectual Property rights; and

      2. any claim or statement made by the Customer in any advertisement or promotion or marketing material not provided by Flex Fitness Equipment.

7. FORCE MAJEURE

Notwithstanding any other provision of this Agreement no default or failure to perform on the part of their party will be considered a breach of this Agreement if such default, delay or failure to perform will be due entirely to causes beyond the reasonable control of the party charged with such default including but not limited to causes such as strikes, lock-outs or other labour disputes, rights, civil disturbance, actions or an action of government authorities or suppliers, or storms, floods, fires, earthquakes, acts of God, nuclear disasters or default of a common carrier.

15. ENTIRE AGREEMENT

    1. These Terms, and the documents expressly referred to in them, constitute the entire Agreement between you and Flex Fitness Equipment, and supersede all previous discussions, correspondence, negotiations, previous arrangements, understanding or agreement between us relating to the Services.

    2. We each acknowledge that, in entering into this Agreement, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in this Agreement.