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1. Applicability: These Terms and Conditions of Sale are the only terms that govern the sale of Goods by Seller to the Buyer. These Terms and Conditions of Sale comprise the entire agreement between the parties except as hereinafter modified by Seller in writing and signed by Seller’s authorized representative(s). As a condition of Seller’s acceptance of (i) any offer from Buyer to purchase Goods from Seller, (ii) by Buyer sending a quote, proposal or PO to Seller, (iii) by Buyer submitting instructions to Seller to ship Goods (defined below), or (iv) by Buyer accepting or paying for Goods, and as a condition of any sale of Goods to Buyer, Buyer agrees that such sale shall be governed by and expressly limited to the terms and conditions in this Agreement, as defined herein. No additional or different terms, conditions, or warranties, and no agreement or understanding, oral or written, in any way purporting to modify this Agreement, whether contained in Buyer’s PO or elsewhere, shall be binding on Seller unless hereafter made in writing, signed by Seller’s authorized representative(s), and specifically referencing this Agreement stating that it modifies such. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with this Agreement or any other terms proposed by Buyer. Buyer cannot unilaterally change or modify this Agreement by referencing a prior offer or by including any counteroffer and/or any additional or conflicting terms in Buyer’s PO or any other unilaterally issued Buyer document. Any unilateral changes added to any PO, order request, order confirmation, or similar purchasing document are hereby expressly objected to and rejected by Seller and shall not be deemed to modify this Agreement or be a part of any resulting order. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Goods, shall constitute an agreement by Seller to any such terms. Trade custom, trade usage, and past performance are superseded by this Agreement and shall not be used to interpret this Agreement.
2. Definitions: The following definitions apply unless otherwise indicated: (a) “Buyer” means the legal entity contracting with Seller; (b) “Seller” means the legal entity contracting with Buyer, which may include iFIT Inc. or Free Motion Fitness, Inc. or any other subsidiary or affiliate of the aforementioned entities; (c) “Agreement” means these Terms & Conditions of Sale, any accepted POs, any related written and signed distribution, dealer or other sales agreements including addenda, amendments, attachments or exhibits thereto; (d) “Goods” is defined by the uniform commercial code (“UCC”) and also includes the products, supplies, parts, assemblies, services or other items furnished by Seller to Buyer including raw materials, components, and intermediate assemblies of such items, if applicable; (e) “PO” means a purchase order or other document issued by Buyer reflecting a request to purchase certain Goods from Seller; and (f) “Intellectual Property” means inventions, patents, patent applications, works of authorship, copyrights, trademarks, service marks, trade names, trade dress, trade secrets, design rights, logos, commercial symbols, registrations, applications, domain names, and any other intellectual property and proprietary rights anywhere in the world. If these Terms and Conditions are provided with or incorporated as part of Seller’s quote, such quote shall remain valid for thirty (30) days from the date of issuance, unless otherwise stated in writing by Seller.
3. Acceptance of Purchase Orders: Seller will accept and fill POs for Goods at its discretion and based on product availability (both quantity and delivery schedule). Submitting a PO to Seller does not guarantee, nor does it commit Seller to deliver Goods in the requested quantity or on the requested delivery date. Seller will accept Buyer’s POs and sell Goods only under the terms and conditions reflected in this Agreement. In addition, Seller may partially accept a PO if only certain Goods are available. Seller shall accept Buyer’s PO by (1) providing Seller’s written “acceptance” indicating that it will fulfill the PO, either in part or in full (e.g., identifying the specific Goods, quantity and delivery schedule), as executed by Seller’s authorized representative, or (2) by delivering some or all of the Goods requested, with the exception that partial performance of a PO is not deemed to be acceptance of the entire PO. Seller will only be deemed to have accepted that portion of the PO that is delivered. Seller’s order acknowledgment is not an acceptance of a PO. Seller reserves the right to discontinue part numbers, to modify the designs and specifications of Goods, to change pricing, and to otherwise modify, alter, or discontinue the Goods at any time without advance notice to Buyer. Seller shall not be liable for any damages resulting from a delay in Delivery. Unless otherwise agreed, Delivery dates are targets. Buyer’s sole remedy for a delay in the Delivery of Goods is termination of that part of the accepted PO that was not delivered within thirty (30) days of the last stated Delivery date. If Delivery of the Goods is delayed at the request or due to the fault of Buyer, and if the Goods are required to be stored by a third-party or stored at Seller’s location longer than thirty (30) days, then Buyer shall bear the expense and risk of loss of such Goods, and to the extent Services are required after such delay, the performance of such Services will be subject to Seller’s availability and may be subject to a price increase.
4. Inspection and Acceptance of Goods: No Goods will be taken back and credited or replaced unless prior written authorization for such has been given by Seller as provided in Section 5. Buyer shall immediately inspect the delivered Goods for shortages, conformity with order(s), defects or damages and report any claims as follows:
Any claims not submitted in accordance with this Section 4 shall result in the Goods being deemed irrevocably accepted and any claims shall be deemed waived except as provided in Section 12 of this Agreement. Buyer shall be deemed to have accepted all Goods if Buyer fails to reject and return the Goods as set forth in Sections 4 and 5.
5. Returns: Prior authorization from Seller is required for any returns, for any reason. Contact Seller for prior authorization and for any forms or procedure that must be followed. The following terms apply:
For any returns of Goods, Seller, when appropriate, will credit Buyer’s account. Buyer is not entitled to unilaterally offset the value of any returned Goods against any amounts due to Seller, without Seller’s express written consent.
6. Payment and Price: Unless otherwise agreed in writing by Seller’s finance/credit department, all sales are cash in advance and shall be paid in U.S. dollars. Seller has the right to change the price of Goods. Prices exclude all applicable taxes. Prices shall also exclude any amounts due for import and export licenses and permits, customs charges and duties, and penalties. Buyer is responsible for all taxes, excises, assessments, or duties of any nature whatsoever now or hereafter which may be imposed upon the Goods, either directly or indirectly, including for any shipment, installation, or sale. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller. Any change in price shall apply going forward to all POs issued after the effective date of the price change and to all Goods from POs, or any portion thereof, previously issued but not accepted or not delivered. If the Buyer chooses to pay by credit card, where permitted by law, a 2% surcharge may be added to the total amount due. This surcharge is applied to cover the Seller’s fees incurred by processing credit card transactions. By providing credit card details for payment, the Buyer acknowledges and agrees to the applicable surcharge.
7. Extension of Credit: In the event Seller extends credit to Buyer, Buyer shall pay invoices on time, when due per the terms of the invoice. If Buyer fails to make payments when due, Seller may, within its discretion, take any of the following actions: (a) assess a late payment charge on all outstanding balances, at a rate equal to one and half percent (1.5%) per month on all past due balances, or at the highest rate permitted by law, from the date due until paid in full; (b) change the payment terms to cash-in-advance and change or eliminate any credit, in Seller’s sole discretion; (c) recover Seller’s cost of collection, including all costs, expenses and reasonable attorneys' fees (including, without limitation, at trial and on appeal) incurred to collect past due payments; (d) remove temporarily or eliminate entitlements to any discounts, rebates or special pricing programs if any amount is past due or remains unpaid; discounts, rebates and special pricing programs are void if any amounts due are not paid in full; (e) require immediate payment, upon demand, of any past due amounts; and/or (f) place Buyer’s account on hold and exercise its right to not ship or delay shipping any Goods on order, regardless if Seller has or has not accepted the PO, until Buyer’s account is brought current or Buyer and Seller expressly agree otherwise in writing.In the event of any refused, returned, or dishonored check, electronic funds transfer, or any payment made without sufficient available funds, on a closed or restricted account, or for which a stop payment order is issued, Buyer shall pay Seller any charges imposed on Seller by its bank in respect thereof, plus an additional fee of one and half percent (1.5%) of such check or payment or the equivalent of Fifty U.S. Dollars and No Cents ($50.00), whichever is greater. Further, at any time when Seller deems Buyer’s financial condition, prospects, or other circumstances to be unacceptable in Seller’s sole and absolute credit judgment, Seller may revoke, alter, or suspend any credit already extended to Buyer, or require Buyer to make full or partial payments in advance of any shipment or other performance, defer or decline to make shipments to Buyer, and/or terminate any agreement to extend credit to Buyer or any purchase order. In such case, Seller shall not be liable in any way to Buyer if it exercises its right to stop or delay delivery of goods due to Buyer’s failure to make timely payment in full or based on Seller’s evaluation of Buyer’s financial condition or prospects.
8. Delivery Terms / Risk of Loss / Title: Unless otherwise agreed to in writing by Seller, Seller shall deliver the Goods to Buyer: (A) for international shipments, FOB Origin (named port) or FCA Origin (named place of delivery); or (B) for US Domestic shipments, FOB Origin freight collect (“Delivery”). Risk of loss and damage passes to the Buyer at the Delivery point. Title to Goods passes to Buyer upon Delivery, subject to any security interest granted to Seller under this Agreement. Seller will strive to meet the requirements of Buyer’s delivery schedule. Seller reserves the right to make partial or early deliveries. At Buyer’s request, Seller may assist in securing transportation to the ultimate destination, but such assistance shall not modify the above or any specifically quoted delivery terms or transfer risk of loss during transportation to Seller. If Seller is requested to arrange or is involved in the selection of the freight carriers and the routing of shipments, then such decisions are within Seller’s discretion, unless otherwise instructed or agreed.
9. Purchase Money Security Interest: In the event Seller extends credit, or if the goods are delivered to Buyer without full payment, then Buyer grants a purchase money security interest in all Goods, all additions thereto, all replacement Goods, and all proceeds thereof to secure payment of Buyer’s obligations. Buyer authorizes Seller to file financing statements pursuant to the Utah Uniform Commercial Code to perfect the Seller’s security interest in the Goods. Seller shall be entitled to all the remedies of a secured party under the Utah Uniform Commercial Code. Additionally, Seller shall be authorized, and Buyer hereby grants Seller permission to enter upon any premises, leased or owned by Buyer, to recover possession of any goods received by Buyer from Seller for which Seller has not received payment.
10. Force Majeure: Seller shall not be liable for any failure to meet its obligations hereunder, due in whole or in part, directly or indirectly, to a Force Majeure Event. A Force Majeure Event includes, but is not limited to: fire, forest fire, flood, weather, explosion, or other catastrophe; accident; riot, strike, lockout, or other labor stoppage, slowdown, or dispute; war (declared or undeclared); epidemic; pandemic; serious illness or plague; disease, outbreak or quarantine restriction; government interference or regulations including but not limited to those that may impact Seller’s suppliers (e.g., loss of facility use privileges at government-owned facilities); rationing, allocations or embargoes; strikes or shortage of labor; delays in delivery or inability to deliver by Seller’s suppliers; equipment breakages, failures or other limitations; sovereign acts; national, regional, or local emergency; transportation delays and other causes beyond the control of Seller. If applicable, with respect to Seller’s sales of any Goods outside of the United States under the terms of this Agreement, Seller will use commercially reasonable efforts to obtain any necessary export licenses or approvals from the United States Government to export the Goods. If, however, Seller is unable to secure the legally required export licenses or approvals, then such will be treated as an event of Force Majeure Event and either Buyer and/or Seller may terminate the PO without any liability. In such case, Seller shall refund Buyer for any amounts pre-paid in advance.
11. Indemnification: Seller shall defend, indemnify and hold Buyer harmless from damages, expenses, costs, post-notification attorneys’ fees and other losses arising out of any third-party claim, but only for a claim, and only to the extent that the claim alleges a defect in the Goods or arises out of Seller’s sole failure to comply with Laws. Seller shall not indemnify Buyer for any claim that, in whole or in part, arises out of or relates to Buyer’s act (negligent, intentional or willful) or omission. Buyer shall defend, indemnify and hold harmless Seller from all damages, expenses, costs, post-notification attorneys’ fees and other losses arising out of any third-party claim that, in whole or in part, arises out of or relates to Buyer’s act (negligent, intentional or willful) or omission as it relates to the Goods, Buyer’s incorporation of the Goods into another product or Buyer’s failure to comply with Laws. Either party seeking indemnification under this paragraph shall promptly notify the other party of the claim, but any delayed notification shall not affect the indemnifying party’s obligations except to the extent that the delay causes prejudice to the indemnifying party. Buyer acknowledges that fitness equipment requires regular maintenance in accordance with the manufacturer’s guidelines to ensure safe and proper operation. Buyer is solely responsible for performing such maintenance with respect to any Goods Buyer purchases from Seller. Any damage, injury, or loss arising out of or relating to Buyer’s failure to properly maintain the equipment shall be Buyer’s sole responsibility and shall not be subject to Seller’s indemnification obligations under this Agreement.
12. Limited Warranty and Exclusive Remedy:
13. Limitation on Liability: EXCEPT AS PROVIDED FOR HEREIN, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EXPECTATION OR GOODWILL) WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER, AS A RESULT OF, OR ASSOCIATED WITH, THIS AGREEMENT, ANY PO, THE PERFORMANCE UNDER ANY PO, OR THE GOODS AND/OR SERVICES PROVIDED, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND IN NO EVENT SHALL THE TOTAL LIABILITY OF SELLER EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY BUYER FOR THE GOODS PURCHASED UNDER THIS AGREEMENT OR $100,000.00 WHICHEVER IS LESS.
14. Termination: Except as provided in this Agreement, Buyer cannot cancel, revoke or terminate a PO accepted by Seller. Seller may cancel any accepted PO, and the sole and exclusive remedy will be a refund of any cash paid in advance, or any payments made against the PO, provided Buyer is not indebted to Seller.
15. Confidential and Proprietary Information: All information including, but not limited to price lists, Goods-related strategy, drawings, prints, publications, specifications, processes, manufacturing techniques, software products and programs (in object code or any other form) and other intellectual property, obtained by Buyer from Seller prior to and during the performance of this Agreement which is identified as proprietary or confidential by Seller shall be received in confidence by Buyer and shall remain the property of Seller. Seller’s price lists or agreed pricing for Goods is considered confidential. Such information shall not be reproduced, used, or disclosed to any third party by Buyer without the prior written consent of Seller.
16. Export Control: Goods sold by Seller to Buyer under this Agreement may be subject to U.S. export control laws such as ITAR and EAR (“Export Control Laws”). In addition, the sale or transfer of Goods, and its related technology, to certain individuals, businesses or entities may be subject to U.S. and international Trade Sanctions laws (“Trade Sanctions”). Buyer represents that it shall comply with all applicable Export Control Laws and Trade Sanctions. Buyer represents and warrants it is responsible for, and does in fact, understand that it shall only use, export, re-export, resale, release or transfer Goods and data or technology related to export-controlled Goods in compliance with such laws. Buyer shall notify Seller and secure the appropriate licenses, if legally required, prior to exporting, re-exporting, reselling, releasing or otherwise transferring such Goods and/or technology. Seller may terminate any PO, or any sale hereunder, immediately for cause if it knows or, in its unilateral discretion, has reason to believe that Buyer has or may have violated any Export Control Laws or Trade Sanctions. Buyer shall defend, indemnify and hold Seller harmless from any liability resulting from Buyer’s breach of this Section and/or its violation of any Export Control laws and Trade Sanctions laws.
17. Choice of Law: This Agreement, any PO between the parties and any dispute arising out of either will be governed by and construed in accordance with the laws of the state of Utah, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the state of Utah. The parties expressly waive application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. Any action at law, suit in equity, or judicial proceeding of any kind arising directly, indirectly, out of, related to or from this Agreement, PO or the relationship between the parties shall be litigated exclusively in the state or federal courts located in Logan, Utah.
18. Waiver: The failure of Seller to enforce any applicable provision of these terms and conditions, or to require Buyer’s performance of any provision or obligation hereof, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of this Agreement or any part hereof, or the right of Seller thereafter to enforce each provision.
19. Assignment: Buyer may not assign, in whole or in part, its rights, duties or obligations under this Agreement without the prior written consent of Seller. Any attempted assignment or delegation without such consent shall be void.
20. Severability: If any provision of these terms and conditions is found to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected.
21. Buyer’s Compliance with Applicable Laws: Buyer represents and warrants that its purchase, possession, distribution and resale of the Goods shall comply with, and Buyer will otherwise comply with all applicable laws, including, but not limited to, applicable laws related to the collection, transfer and use of personal information and payment card data and the US Foreign Corrupt Practices Act.
22. Intellectual Property Rights: Seller owns the exclusive right, title and interest in and to any and all Intellectual Property pertaining to the Goods, its products, packaging, labeling, advertising and promotional materials used for and/or relating to the Goods (“Seller Intellectual Property”). In consideration of Buyer’s agreement to comply with the terms of this Agreement (and during any agreed term that may apply), Buyer agrees that it shall not impair any such right, title and interest, and that all use of Seller Intellectual Property by Buyer, and all goodwill resulting from any use of Seller Intellectual Property, shall inure solely to the benefit of, and be on behalf of, Seller. Except for the express, limited trademark license granted below, Buyer shall acquire no rights whatsoever in or to Seller Intellectual Property. If Buyer does acquire any right, title, or interest in or to any Seller Intellectual Property, Buyer hereby assigns, transfers, and conveys all such rights, title, and interest, free of charge to Seller.
23. Entire Agreement; No Third-Party Beneficiaries: This Agreement represents the entire agreement between Buyer and Seller pertaining to the subject matter herein and shall supersede all prior oral and/or written agreements, proposals, communications and documents. This Agreement may only be modified or amended by a written agreement that specifically references this Agreement and is signed by an authorized representative of Seller. This Agreement is for the sole benefit of Buyer and Seller, and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature, whatsoever.
24. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
25. Notices: All notices shall be in writing and addressed to the parties at the address set forth on the face of the PO or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
26. Material Breach: Seller considers Buyer’s compliance with the following paragraphs to be material to its decision and agreement to sell Goods to Buyer: Sections 6, 7, 9, 15, 16, 21 and 22. In the event that Buyer fails to comply with any of these terms, and fails to provide a response or cure satisfactory to Seller within fifteen (15) days of receiving notice that Buyer is in breach, then Seller shall have the right to terminate any pending PO(s), terminate any related agreement, close or put Buyer’s account on hold – all without liability to Seller — and pursue any other remedy available to it at law, in any court of competent jurisdiction.
27. Severability: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.