Terms and Conditions of Sale
All pricing for Fitness Ventures International, LLC ‘FVI’ dba Advantage Fitness Products and Aktiv Solutions, is valid for 30 days from date indicated on quotation. Volume discounts are based on equipment quantities included on a quotation for equipment sales. Changes to final equipment selection and quantities may impact available discounts for equipment sales. All equipment prices are exclusive of all federal, state, municipal, and local excise, sales, use, and similar taxes, and freight, insurance and foreign exchange risk. Sales tax will be added to Customer’s invoice where applicable, unless a valid California resale number of Customer is on file at FVI.
(a) Delivery of any equipment to Customer shall be F.O.B. FVI contracted warehouse facility. Title and risk of loss shall pass to Customer upon FVI’s delivery of such equipment to a common carrier or to Customer, in either case, from the warehouse facility. Unless otherwise requested by Customer, delivery will be made by a common carrier selected by FVI.
(b) Customer agrees to accept delivery of equipment on or within ten (10) business days from the date FVI has received equipment necessary to fulfill Customer’s order. In the event Customer is unable or unwilling to accept delivery of such equipment sold, within the time frame specified above, customer agrees to arrange to store such equipment and to pay any balance due immediately regardless of the final delivery date. If FVI is willing to provide assistance in storage of such equipment, such equipment shall be stored at prevailing market rates. If Customer defers the delivery date of such equipment and does not pay FVI in full at the time of the deferral, FVI will use its best effort to accommodate Customer’s needs once a new timetable for a delivery date is established, but cannot guarantee labor rates or availability and/or equipment availability.
(c) FVI will endeavor to deliver such equipment purchased by customer on the desired delivery date, but does not guarantee time of delivery, and shall not be liable for any loss, damage or expense arising out of, or in connection with, any delay in delivery however caused. In the event of any delay in delivery, non-delivery or any other obligation of FVI’s due to causes beyond FVI’s control, including, without limitation, acts of God, acts of Customer, acts of civil or military authority, war, riots, civil unrest, floods, earthquakes, strikes, lockouts, delays in or lack of transportation, and failure of suppliers for similar reasons, the time for FVI’s performance shall be automatically extended for a period equal to the time lost by reason of such delay. FVI’s failure to deliver any equipment on the desired delivery date shall not be grounds for Customer’s cancellation of its order.
Should any equipment arrive at Customer’s destination in a damaged condition or should a shortage occur, Customer must report the nature and extent of the damage or shortage to FVI within 5 business days of delivery. In no case is any equipment to be returned to FVI’s prior written authorization. Returned equipment must be securely packed and shipped prepaid to FVI. Customer acknowledges that charges for equipment removal or freight incurred to return any equipment is the sole responsibility of Customer.
All orders are treated as custom and made to order and may not be cancelled. Customer acknowledges that there is no “Cooling Off” period with regard to the purchase of the equipment and Customer has no legal right to cancel the order. FVI may (but is not required to) accept the cancellation of an order upon Customer’s payment of a fee equal to 25% of the order and the payment of any delivery charges and restocking fees of the manufacturer of the equipment.
(a) Payment for equipment is due and payable 50% upon placement of the order and the balance is due upon delivery of such equipment, unless otherwise specified on the invoice. FVI may impose a late charge and/or service charge equal to the lesser of 18% per annum (1-1/2% per month) or the maximum rate allowed by law upon any unpaid balance past due by more than 30 days. Customer shall be liable for costs of collections (including attorneys’ fees) incurred by FVI to collect payment due. Customer agrees and authorizes FVI to charge Customer’s credit card, to be provided to FVI upon FVI’s request, for any amount not paid when due for any receivable outstanding by Customer to FVI.
(b) Until the purchase price for equipment is fully paid, FVI will have a purchase money security interest in such equipment and all additions or replacements thereto or proceeds thereof. FVI may file financing statements under applicable law to evidence or perfect such security interest. Customer agrees to execute and deliver any such financing statements or other documents FVI deems appropriate in order to perfect or otherwise obtain the benefits of such security interest.
ASSUMPTION OF RISK/LIMITATION OF LIABILITY/HOLD HARMLESS
Customer and each user of equipment sold by FVI are solely responsible for the proper use thereof. Use of such equipment may result in personal injury or death. The purchase of such equipment constitutes Customer’s acceptance of all responsibility and liability for monitoring usage of such equipment. In no event will FVI be liable for any direct, special, punitive, indirect, or consequential damages (including lost profits) resulting from the use or loss of use of such equipment, even if it has been advised of the possibility of such damage. The maximum liability of FVI to Customer or any other person arising out of or in connection with the delivery, non-delivery, installation, sale, use or other employment of such equipment shall in no case exceed the actual cost of such equipment delivered to and paid for by Customer.
Fitness Ventures installs its equipment in reliance upon Customer’s representations set forth in the contract. Customer expressly agrees to indemnify and hold Fitness Ventures harmless against any and all claims asserted by an end user or invitee of Customer who sustains damage as a result of use of the equipment installed where the claim arises from the breach of Customer’s representations to Fitness Ventures. This grant of indemnify includes reasonable attorney fees incurred by Fitness Ventures through service of counsel selected by Fitness Ventures.
FVI MAKES NO WARRANTY AS TO THE FITNESS, MERCHANTABILITY, DESIGN, CONDITION, VALUE, CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ONLY WARRANTY APPLICABLE WITH RESPECT TO THE EQUIPMENT IS THE MANUFACTURER’S ORIGINAL WARRANTY. SERVICE WARRANTY IS 30 DAYS ON LABOR AND 90 DAYS ON THE PARTS. FVI SHALL NOT BE LIABLE FOR LOSS, DAMAGE, INJURY OR DEATH TO CUSTOMER OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, OF THE EQUIPMENT. IF THE EQUIPMENT IS UNSATISFACTORY FOR ANY REASON, CUSTOMER SHALL MAKE CLAIM SOLELY AGAINST THE MANUFACTURER AND SHALL NEVERTHELESS PAY FVI ALL AMOUNTS DUE HEREUNDER.
Customer acknowledges and agrees that FVI may disclose Customer’s name on FVI’s client lists and on other promotional materials.
Customer will hold in strict confidence the terms of this Agreement. All notices between the parties shall be in writing and shall be sent by personal delivery or certified or registered mail. The laws of the State of California, other than choice of law rules, will govern this Agreement. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the courts in Los Angeles County, California. If any provision of this Agreement is held to be illegal, unenforceable or void, then each other provision will remain in effect. No failure of either party to enforce any provision of this Agreement shall be construed as a waiver of that or any other provision. This Agreement sets forth the entire agreement between the parties on the subject matter hereof and supersedes all prior quotes, purchase orders, proposals, agreements and representations, whether written or oral. This Agreement may be changed only in writing signed by both parties. Customer represents that the person signing this Agreement is duly authorized to sign this Agreement on behalf of Customer and that no further approvals are required.
Last updated: 2/21/18