Effective Date: 2021/03/26 - 2021/12/31
1. General provisions
1.1. The following terms in these general terms and conditions are
understood to mean:
a. Life Fitness: Life Fitness
(Atlantic) BV, a private company with limited liability established in
Rotterdam and having its registered office at the address of (2992 LB)
Bijdorpplein 25-31 in Barendrecht, registered with the Chamber of Commerce
under number 24254910;
b. Customer: every natural or legal
person or company to whom an offer is made or with whom an agreement is
concluded by Life Fitness;
c. Third
party(ies): every party that is involved in the realisation of the agreement,
not being Life Fitness (Atlantic) BV or Customer. A third party(ies) is also
understood to mean any (legal) persons and entities affiliated with Life
Fitness (Atlantic) BV, whether or not it/they belong to the firm of which Life
Fitness (Atlantic) BV is a part;
d. Brands of Life Fitness: the products
branded by Life Fitness, Cybex, Indoor Cycling Group (ICG) or Hammer Strength, which
we are to supply to you in accordance with this agreement as confirmed on our order
confirmation.
e. Subscription Services: the
products and services that are ordered by Customer online through a link or via
an order confirmation referencing Life Fitness’ Subscription
Agreement, whether on a trial or paid basis, and made available online by Life
Fitness, via the applicable subscriber login link and other web pages
designated by Life Fitness.
1.2. These general
terms and conditions apply to all offers from and agreements with Life Fitness.
1.3. Any deviations
to these general terms and conditions only apply if these have been explicitly
confirmed with Customer by Life Fitness in writing.
1.4. In the event of a contradiction between a provision in these general
terms and conditions and a provision in the agreement concluded with Life
Fitness, then that stated in the agreement will prevail.
1.5. Any reference on the part of Customer to conditions other than these
general terms and conditions will have no effect. The applicability of any
other terms and conditions is explicitly rejected.
1.6. In the event that a provision in these general terms and conditions is
void or annulled, all of the other provisions of these general terms and
conditions will remain in full force.
2. Offers
2.1. An offer is understood to mean any quotation on the part of Life
Fitness.
2.2. Any offer is
free of obligation and becomes void two months after its date, unless otherwise
specified in the offer concerned.
2.3. Concerning any
particulars provided in an offer, Customer is to take into account the usual
tolerances and (minor) changes and adjustments, insofar as these are necessary
for the purpose of adequately realising the agreement.
2.4. Insofar as
drawings, samples, specimens, models and so on are provided by Life Fitness
prior to or when proposing an offer, these serve to illustrate only and no
rights can be derived from these products.
2.5. All of the
drawings, samples, specimens, models and so on provided by Life Fitness for the
benefit of Customer are to be immediately returned to Life Fitness upon
request.
3. Formation of the agreement
3.1. Life Fitness is to draw up an order confirmation following the written
acceptance of Customer of the offer.
3.2. The order
confirmation as drawn up by Life Fitness and signed by Customer is deemed effected
and represents the contents of the agreement completely and correctly.
4. Change to the agreement
4.1. Any desired
changes the agreement are to be timely communicated by Customer to Life Fitness
in writing. Any risk of changes communicated verbally is at the expense of Customer.
4.2. Life Fitness
is only bound by changes if and insofar as it has explicitly confirmed the
changes with Customer in writing. Changes to the agreement may result in a
change to the prices and time periods agreed upon.
4.3. Changes to the
agreement that result in less being purchased than originally agreed upon will
entail a premature termination of that part of the agreement. That stated in
article 15.3 of these general terms and conditions applies in that case.
5. Prices
5.1. All of the prices are in U.S. Dollars, excluding VAT, postage, costs of
transport and installation and are based on the cost factors that applied at
the time that the agreement was concluded.
5.2. Life Fitness
is at all times entitled to change its prices as a result of a change in the
agreement, an increase in cost factors and/or changing market circumstances, a
correction for inflation or further to an obligation on the part of Life
Fitness by virtue of the law.
6. Payment
6.1. The purchase price is owed in full as soon as the agreement is
effected.
6.2. Payment is to take place in a lump sum and prior to the delivery.
6.3. Payment will
take place in instalments, in which the first instalment will amount to at
least 50% of the purchase price, only if this has been laid down in the
agreement. The first instalment is to be paid prior to delivery. The last
instalment is to be paid following the delivery.
6.4. Payments will in any case take place without any discount or
settlement.
6.5. The term of
payment is eight days. Life Fitness may opt to observe a shorter term of
payment if such is necessary in view of the scheduled delivery.
6.6. In the event
of an overdue payment, Life Fitness is authorised to immediately suspend the
delivery, without being liable for damages. Any additional costs further to the
suspension will be at the expense of Customer.
6.7. In the event
of an overdue payment, Customer will owe statutory commercial interest within
the meaning of article 6:119a of the Civil Code, without further notice of
default, as well as compensation for the collection costs within the meaning of
article 6:96, section 2 paragraph c of the Civil Code, with a minimum of € 40.
6.8. In the event of non-payment and/or repeated financial difficulties on
the part of Customer, Life Fitness is authorised to completely or partially
terminate the agreement and to reclaim any products already delivered but not
yet paid, without being liable for damages and without prejudice to the other rights of
Life Fitness. Any costs resulting from the termination will be at the expense
of Customer.
7. Security
7.1. Life Fitness
is at all times authorised to require security prior to the realisation of the
agreement.
7.2. Customer is
obligated to furnish adequate security for the fulfilment of its obligations on
first demand of Life Fitness.
7.3. The security
offered by Customer must be such that all of the receivables of Life Fitness
and the corresponding interest and costs are duly covered. The security offered
is to furthermore be such that Life Fitness can easily recover costs.
7.4. In the event
that Customer fails to comply with the obligations further to this article,
then Life Fitness is authorised to completely or partially terminate the
agreement and to reclaim the products already delivered but not yet paid,
without being liable for damages and without prejudice to the other rights of
Life Fitness. Any costs resulting from the termination will be at the expense
of Customer.
8. Retention of title
8.1. The ownership
of the products delivered is retained by Life Fitness for as long as the
payment obligations have not been completely met by Customer, which is also
understood to mean the payment of costs, interests and compensation for damages
due to non-compliance on the part of Customer.
8.2. As long as the
ownership has not been transferred, Customer will refrain from alienating the products,
letting these out, granting in use or removing the products from its company,
pledging these or encumbering these in any other way.
8.3. Customer is
obligated on first demand of Life Fitness to make the products available to
Life Fitness and to lend its cooperation to returning the products to Life
Fitness or to persons as indicated by Life Fitness.
8.4. Customer grants
Life Fitness, or persons to be designated by Life Fitness, the irrevocable
authority to enter the location where the products can be found for the purpose
of reclaiming the products.
9.
Right of retention
9.1. In the event
that Life Fitness has products in its possession that belong to Customer, then
Life Fitness will be entitled to suspend the surrender of these for as long as
it has not yet received the payments owed by Customer.
10. Realisation of the agreement
10.1. The realisation of the agreements commences after the agreement has
been effected.
10.2. In realising
the agreement, Life Fitness may opt to make use of the products/services of
third parties. The costs involved will be at the expense of Customer. A delay
in the realisation of the agreement as a result of a delay in the supply of
products and/or services of third parties is not at the expense and risk of
Life Fitness. Life Fitness is not liable for any defects or shortcomings in the
products and/or services of third parties.
10.3. The realisation of the agreement depends upon the information and data
to be supplied by Customer. It is the responsibility of Customer to
ensure the accuracy, completeness and consistency of the information and data
provided. Life Fitness is not liable for any errors or damages resulting from
the data provided by Customer.
10.4. In the event that Life Fitness ascertains inaccuracies, incompleteness
or inconsistencies in the information and data supplied by Customer in the
course of realising the agreement, then it will inform Customer accordingly and
will suspend the realisation until Customer has corrected the errors found.
Life Fitness will not examine the information and data provided by Customer for
errors..
10.5. Customer is obligated to:
a. provide all of
the relevant, necessary and desired information and data relating to this
matter;
b. grant Life
Fitness, or third parties called in by or on behalf of Life Fitness, access to
all locations and spaces insofar as such is necessary for the realisation of
the agreement;
c. lend its
cooperation and to make every necessary effort to enable Life Fitness and the
third parties referred to to realise the agreement.
10.6. Any delay in the realisation of the agreement as a result of
non-compliance or the non-timely compliance with the obligations as referred to
above are entirely at the expense and risk of Customer.
10.7. The time periods as specified by Life Fitness with respect to the
realisation of the agreement, including the delivery terms, are determined as
accurately as possible, but are not under any circumstances considered
deadlines.
10.8. If the
realisation of the agreement is to take place in parts or stages, then Life
Fitness has the right to suspend a subsequent part or stage until the previous
part or stage has been accepted and paid by Customer. Any additional costs
further to the suspension will be at the expense of Customer.
11. Delivery, transport and installation
11.1. Delivery is to
take place by means of delivering the products to the address as specified on
the order confirmation on working days
during office hours. Customer is obligated to accept the products at the
location agreed upon and at the time that these are offered at the location.
11.2. A third party that is to be called in by Life Fitness will see to the
transport and installation. The costs involved are at the expense of Customer.
11.3. Customer will ensure that the delivery location meets the following
criteria:
a. the space is reachable and well accessible;
b. the
space can be properly secured;
c. the
floor is clean and level;
d. the
space has electricity, lighting, heating, water and sufficient ventilation.
11.4. In the event that the space does not meet the criteria as described
above, then Customer will inform Life Fitness accordingly as soon as possible,
yet not later than fourteen days prior to the delivery.
11.5. In the event that circumstances render the use of a lift, hoist, crane
or other aids necessary, then Customer is to inform Life Fitness accordingly as
soon as possible, yet not later than fourteen days prior to delivery. The costs
involved in using such aids are at the expense of Customer.
11.6. In the event that the delivery cannot take place as a result of
non-compliance with the criteria laid down in this article, Customer delays the
delivery date or fails to accept delivery of the products, then Life Fitness
will keep the products in storage for a period of a maximum of thirty days. The
storage costs plus the additional costs of insurance, transport and re-arranging
the delivery of the products will be at the expense of Customer. If the
delivery cannot be made after this period has passed, then Life Fitness will be
authorised to terminate the agreement, either completely or partially, and to
reclaim the products already delivered but not yet paid, without being liable
for damages and without prejudice to the other rights of Life Fitness. Any
costs resulting from the termination will be at the expense of Customer.
12. Transfer of
the risk
12.1. The risk is transferred at the time of delivery or as soon as the products
are placed under the control of Customer.
12.2. In the event that the delivery cannot take place as a result of the
non-compliance of Customer with the conditions as described in article 11, then
the risk will be transferred at the time that the delivery would have taken
place had Customer complied with the conditions. The confirmation of the
delivery date is decisive in this respect.
13. Inspection
13.1. Customer obligated to inspect the products following their installation
and to record any defects found on the delivery note. If the
delivery takes place without the subsequent installation, then Customer is to
state this on the delivery note. Customer is in either case obligated to
inspect Life Fitness for defects within two working days after receiving the products
and to provide Life Fitness within this term with an adequate description in
writing of any defects found. Once this term has lapsed, the products will be
deemed to have been delivered in accordance with the specifications of the
agreement.
13.2. In the event that Life Fitness finds a defect to be valid, then Life
Fitness may at its discretion:
a.
revise the invoice and alter the invoice amount accordingly;
b.
replace the item supplied with an item that has the same specifications or
repair the item, in which the replaced products or parts are to be returned to
Life Fitness;
c.
take back the item(s) supplied and to (partially) dissolve the agreement, such
subject to the repayment of the invoice amount paid by Customer and without
being liable for any damages.
13.3. As the
occasion arises, Customer is to immediately give Life Fitness, or the third
parties engaged by Life Fitness, every opportunity and lend its cooperation
towards correcting any defects.
13.4. A
shortcoming, such as documentation not being (completely) available as promised,
that does not severely hinder the use of the item supplied, is not considered a
defect within the meaning of this article.
13.5. Any
changes made by Customer to the products are at the expense and risk of Customer.
Life Fitness is not responsible nor liable for any defects or damages that may
result from such changes.
14. Warranty
14.1. Any Warranty offered by Life Fitness solely concerns products of the brands of Life Fitness.
14.2. Different
specific Warranty periods apply to the products of the brands of Life Fitness
and commences at the time of delivery. The delivery note is decisive in
this respect.
14.3. Any
claims under a Warranty are to be made known to Life Fitness in writing in the
form of an adequate description immediately upon ascertaining a defect and not
later than within one week after the discovery. Customer is obligated to take
any necessary measures in order to prevent any damages as a result of or
relating to the defect ascertained.
14.4. If Life
Fitness finds a claim under the Warranty to be valid, then Life Fitness has the
right to replace or to repair the product or part of the product, at its sole discretion,
in which the replaced products or parts are to be returned to Life Fitness.
14.5. As the
occasion arises, Customer is to immediately give Life Fitness, or the third
parties engaged by Life Fitness, every opportunity and lend its cooperation
towards correcting any defects.
14.6. No
Warranty is issued or extended for a repaired or replaced part.
14.7.
A claim under the Warranty is not possible if:
a. there are defects or damages as a result of fire,
explosion, flooding, characteristics of the building such as power failure,
failure to provide a power supply, weather conditions, natural disaster, water
exposure, corrosion, discoloration of paint or plastic, rust, adverse
environmental conditions, abuse, misuse, vandalism, neglect or human violence
and so on;
b. it is a matter of customary wear and tear;
c. the improper or negligent use of the products or
parts;
d. safety regulations have not been observed;
e. the product or part has not been used or stored in the
customary fashion and/or in the way as described in the directions for use;
f. the product or part is used with inappropriate or the
wrong accessories, or does not meet manufacturer’s specifications;
g. changes have been made to the products or parts, which
is also understood to mean modifications, alterations, maintenance or repair
work that is not carried out by or on behalf of Life Fitness;
h. the industrial trademarks or brand names, or the type
or identification numbers or signs, present on the products supplied by Life
Fitness, have been removed, damaged or changed;
i. the products or parts have been handled without due
care and attention in some other way; or
j. any other cause beyond Life Fitness’ direct control.
15. Subscription Services
15.1. For any Subscription Services purchased pursuant to the order
confirmation, Customer agrees (a) to be
bound by the terms hereof and Life Fitness' Subscription Agreement found at
https://www.lifefitness.nl/en-nl/legal/subscriptions; and (b) the
Subscription Term set forth in the order confirmation shall be non-cancelable from activation and will
automatically renew for a Subscription Term equivalent in length to the then
expiring Subscription Term at Life Fitness' then current Subscription charges.
Either Life Fitness or Customer may elect to terminate any Subscription
Services at the end of Customer's then current Subscription Term by providing
notice in compliance with the Subscription Agreement, on or prior to the date
thirty (30) days preceding the end of such Subscription Term.
16. Termination
16.1. The agreement ends once each party has met all of its obligations
towards the other party.
16.2. The premature termination of the agreement on the part of Customer is
only permissible with the consent of Life Fitness and only insofar as Customer
compensates Life Fitness for damages. Compensation for damages is understood to
mean the reimbursement of all costs incurred by Life Fitness within the scope
of the agreement and payment of an amount equalling the part of the agreement
that has already been realised by Life Fitness.
16.3. That stated in article 16.2 is applies by analogy if the termination
provides for part of the agreement.
16.4. In the event
that Customer is declared bankrupt, file for a (preliminary) moratorium on
payments, and/or is dissolved or liquidated, then Life Fitness will have the
right to terminate the agreement, effective immediately, without observing a
term of notice and without being obligated to compensate for any damages. Any
claim that Life Fitness has or acquires towards Customer is then due and
payable without any notice of default being required.
17. Circumstances beyond one's control
17.1. Non-compliance on the part of Life Fitness with respect to any
obligation pursuant to the agreement as a result of, directly or indirectly:
a. calamities;
theft, fire, flooding, power failure, natural disaster, unavoidable casualties,
concealed conditions, human violence, riot, insurrection, civil disturbances
war, invasion, act of foreign enemies, hostilities (regardless of whether or
not war is declared), rebellion, revolution, terrorist activities, pandemic or
epidemic, diseases, quarantines, strikes, lockouts or other labor disputes;
b. government
measures whether in the Netherlands or elsewhere, import and export
restrictions, quota schemes, embargoes; laws, statutes, regulations, and other
legal requirements, orders or judgments; acts or order of any government or
agency or official thereof;
c. shortage or
unavailability of labor, supplies, materials, equipment or systems;
transportation contingencies;
d. acts or
omissions on the part of manufacturers and/or suppliers, transport companies
and/or installer and faults in auxiliary materials or means of transport; and
e. other catastrophes, disruptions, or similar occurrences that cannot
reasonably be insured by Life Fitness; qualify as
circumstances beyond one's control within the meaning of article 6:75 of the Civil
Code. Life Fitness is not liable for any damages as a result of the above.
17.2. Customer cannot demand compliance for as long as the circumstances
beyond the control of Life Fitness continue.
17.3. In the event of circumstances beyond its control, Life Fitness will at
all times be entitled to end the agreement, either partially or entirely,
and/or to alter the agreement such that the realisation of (part of) the
agreement remains possible, without being liable for damages.
17.4. If the circumstances beyond the control of Life Fitness continues for a
period longer than six months, then the agreement can be terminated by Customer
without Customer being entitled to compensation for damages.
17.5. Customer will in any case remain obligated to pay all of the costs incurred
by Life Fitness within the scope of the agreement and to pay an amount
equalling the part of the agreement that has already been realised by Life
Fitness prior to the force majeure having occurred.
18. Liability
18.1. Life Fitness
is not liable for damages unless these are the result of intent or deliberate
recklessness of persons that make up the board or the management of Life
Fitness.
18.2. Damages as a result of acts or omissions on the part of Customer and
third parties, including but not limited to transport companies,
installers and/or servicemen are explicitly excluded.
18.3. Damages as a
result of changes implemented in the products or parts thereof, or the
inappropriate or negligent use of the products or parts are explicitly
excluded.
18.4. The damages to be compensated for by Life Fitness will in any case be
limited to the payment of the reasonable costs within the meaning of article
6:96, section 2 of the Civil Code and only insofar as these are directly
related to the incident that the liability concerns. Life Fitness will not
under any circumstances be obligated to compensate for losses suffered or a
loss of profit. Compensation for consequential loss is excluded.
18.5. The amount in damages to be paid by Life Fitness will not in any case
exceed the maximum that is paid out under its liability insurance should the
occasion arise or, if no payment is made or if the case in hand is not insured,
the amount that Customer owes on the basis of the agreement. The maximum amount
of damages is in any case fixed at € 5,000.
19. Safety measures
19.1. It is the
responsibility of Customer to take all of the necessary safety measures in
order to warrant the safety of third parties in relation to the use of the products
supplied, irrespective of whether Customer is obligated to do so by law or on
the basis of the agreement.
19.2. If, in the course of time, new technologies, insights or other
circumstances render a higher safety level desirable or necessary, then Customer
is to take all of the necessary measures in this respect in order to Warranty
the safety of third parties in relation to the use of the products supplied.
19.3. Life Fitness is not liable for damages that result from Customer failing
to take necessary safety measures or failing to see to the implementation of
adjustments. Customer indemnifies Life Fitness with respect to any damages or
claims on the part of third parties.
20. Indemnification
20.1. Life Fitness is not responsible for the use of the products supplied
and is not liable for any damages that may result from the use.
20.2. Customer indemnifies Life Fitness against any damages or liability
relating to the use of the products supplied, including any damages and
liability as a result of incompetent or improper use on the part of Customer or
third parties, including the users of the products supplied.
20.3. It is the responsibility of Customer to comply with the conditions that
apply to the use of the products supplied.
20.4.Customer indemnifies Life Fitness against any damages or liability
resulting from the non-compliance referred to above.
21. Intellectual property rights
21.1. All of the intellectual property rights with respect to the products
belong to Life Fitness, or to one of the entities of the firm of which Life
Fitness is part, unless it concerns products from some other manufacturer or
supplier.
21.2. Customer will refrain from any actions that violate the intellectual property
rights to the products.
21.3. Customer will not remove any indications of intellectual property rights
to the products, documents, files, software and so on, or any copies of these.
The indications referred to above are to be shown on copies in the same manner
as shown on the original.
21.4. Life Fitness has the right to take all measures necessary in order to
protect the rights referred to in this article.
22. Contract takeover
22.1. Life Fitness is authorised to transfer its rights and obligations
pursuant to the agreement to a third party. Customer lends its cooperation to a
transfer of this kind in advance.
23.Applicable law and settlement of disputes
23.1.All of the offers made and agreements concluded by Life Fitness are
solely subject to Dutch law. The applicability of the Vienna Sales Convention
is excluded.
23.2. Any and all disputes, irrespective of their nature, relating to or
resulting from offers made by and agreements concluded by Life Fitness are to
be referred to the competent court in Rotterdam, Netherlands.
Valid as of March 26, 2021