Commercial Terms & Conditions of Sale
Effective Date: 08/01/2023
1. AGREEMENT: These terms and conditions constitute a continuing sale Agreement between Life Fitness, including Hammer Strength, (hereinafter collectively referred to as “LF”) and Buyer for all products, parts and/or services (“Products”) provided by LF to Buyer in connection with Buyer’s order of LF Products (“Order”). No other terms and conditions nor modifications hereof shall be binding upon the parties unless accepted in writing by LF. If Buyer uses its own purchase order form to place orders for Products, any terms and conditions on its form which are in addition to or inconsistent with the terms and conditions of this Agreement are null and void.
2. DELIVERY:
(A) LF shall use its best efforts in the ordinary course of business to affect deliveries to Buyer as specified. In no event shall LF be liable for any damages, consequential, incidental, liquidated or otherwise, arising from LF’s failure to meet any delivery date/installation date requested and confirmed by Buyer (“Requested Delivery Date”) [and confirmed by LF on the LF Order Acknowledgment form (“Order Acknowledgement”]. In the absence of a Buyer’s factor, i.e., delays or Product Holds made at Buyer’s request or due to Buyer’s failure to take requested action, as more specifically defined in Section 19 (“Buyer’s Factors”), Buyer shall not be subject to price increases or fees as a result of LF’s failure to meet Buyer’s original Requested Delivery Date.
(B) Delays or Product Holds made at Buyer’s request or due to Buyer’s failure to take requested action (“Buyer’s Factors”), as more specifically defined in Section 19, may result in delivery delay fees and/or price adjustments in accordance with Sections 2 and 19. If Buyer seeks to extend the Requested Delivery Date by more than thirty (30) days from the Buyer’s original Requested Delivery Date, (i) Buyer will pay LF 50% of the total invoice price for the Products at the time of providing notice to LF of the extended delivery date, with the balance due in accordance with Buyer’s previously agreed-upon payment terms with LF, and (ii) Buyer will pay monthly “delivery delay fees” equal to 1% of the total invoice price for the Products, calculated from Buyer’s original Requested Delivery Date until Products are delivered. The payment and fees pursuant to sections 2(B)(i) and 2(B)(ii) will not apply if Buyer requests extension of the delivery date at least sixty (60) days prior to the original Requested Delivery Date.
3. PARTIAL SHIPMENT: As Products ordered by Buyer become available, LF may offer partial shipments to Buyer. If Buyer agrees to accept partial shipments, which agreement shall not be unreasonably withheld, then LF shall submit an invoice for Products that it has shipped. Partial shipments shall not relieve Buyer from its obligation to accept shipment of the remainder of the Order.
4. RISK OF LOSS: Title to and risk of loss of the Products passes to Buyer at the time the Products leave LF’s designated plant, distribution center or warehouse. The F.O.B. point is LF’s designated plant, distribution center, or warehouse unless otherwise specified. If Buyer subsequently delays the delivery and installation date after the Products leave the F.O.B. point, Buyer will be responsible for any associated storage costs.
5. PAYMENT: LF shall invoice Buyer for the purchase price of each of the Products shipped and/or services rendered pursuant to this Agreement. The invoice shall be in [the currency that is set forth in the LF Quote] and shall include charges (as applicable) for freight, handling, taxes, surcharges, and other amounts payable to LF. All amounts specified on the invoice shall be paid by Buyer to LF within thirty (30) days from the date of the invoice or pursuant to such other terms as LF may agree. LF may require payment in advance of all or any part of the purchase price of any Products. Payment terms and credit lines are subject to LF’s credit approval. Until LF receives payment in full for the Products, or unless otherwise agreed in writing by the parties, Buyer grants LF a security interest in and a lien on all Products and, upon request, Buyer may be required to execute UCC statements evidencing LF’s security interest/lien. Payments not made by Buyer on or before the due date shall bear interest at three percent (3%) per month or the maximum rate permitted by law, whichever is less. Such interest shall be in addition to and without limitation of any other rights or remedies which LF may have under this Agreement or at law or in equity. Buyer agrees to pay any attorney’s fees and costs incurred by LF in enforcing its rights under this Agreement. Buyer is responsible for all applicable sales, use and/or excise taxes for the purchase of Products. Taxes are in addition to the sales price unless Buyer presents a valid tax exemption certificate. In the event that either: (a) Buyer is determined to be insolvent; (b) Buyer is placed in receivership; (c) Buyer becomes the subject of any voluntary or involuntary bankruptcy petition; or (d) in the opinion of Seller, a material adverse deterioration in Buyer’s financial condition has occurred, Seller may, in addition to any other remedies available at law or in equity, elect to require that Buyer provide adequate assurance of payment, including, without limitation, full or partial prepayment of the cost of any Products for which Buyer has submitted a purchase order.
6. GOVERNING LAW & VENUE: Unless otherwise required by applicable law, this Agreement shall be governed by the laws of the State of Illinois. The exclusive jurisdiction for dispute resolution shall be in Circuit Court, Cook County, Illinois, or the U.S. District Court for the Northern District of Illinois.
7. RETURNS: Within ten (10) days of delivery, Buyer may contact LF to discuss return options, which may include, at LF’s sole discretion, (A) return of new, unused Products for credit; or (B) return of non-stocked or used Products for a fair market repurchase price, as determined by LF, which shall be issued in the form of a product credit. (C) All custom, (“Built-to-Order”) Products, which are defined as any Products ordered in optional or custom frame colors, as defined on the [LF Quote and Purchase Order], are final sale and not eligible for return. Approved credits or repurchase prices will not include freight, fuel and installation charges incurred by LF. Authorized returns require a Return Material Authorization (RMA) Number. To obtain an RMA number contact LF at 1.800.735.3867. The returned Product must be returned in its original packaging, as applicable with the RMA number boldly written on the outside of the package. LF assumes no responsibility for damage caused by shipping or improper packaging. Each returned Product is subject to a re-stocking fee of twenty percent (20%) of the Product’s purchase price, plus all expenses incurred by LF in connection with facilitating the return, including but not limited to costs related to third party installers, and shipping and handling.
8. CANCELED AND CHANGED ORDERS: Orders modified, changed, or canceled by Buyer (including, but not limited to, failure to timely collect or pick up a Will Call Order) within 60 days prior to the Buyer’s original Requested Delivery Date or within 90 days prior to the Requested Delivery Date for Built-to-Order Products are subject to a restocking fee of twenty percent (20%) of the Products’ purchase price.
9. ACCEPTANCE BY BUYER: Products shall be deemed accepted by Buyer on the date they are received by Buyer unless, within ten (10) days after receipt, Buyer gives LF written notice that the Products are not accepted and specifies in detail the reasons for rejection. LF may then, at its sole discretion, proceed to make any necessary corrections, in which case such corrective action by LF shall be Buyer’s sole remedy for non-acceptance of a Product. Upon completion and acceptance of such corrections, the Products shall be deemed accepted by Buyer. Under no circumstances shall Buyer be entitled to revoke Buyer’s acceptance of the Product.
10. LIMITED WARRANTY: (A) Products – Standard Limited Warranty: Each Product has its own limited manufacturer’s warranty (see www.lifefitness.com). Such limited warranty shall be the original Buyer’s sole and exclusive remedy for any breach of warranty. (B) Products – Extended Limited Warranty: Each Product has its own limited manufacturer’s warranty (see www.lifefitness.com). Such limited warranty shall be the original Buyer’s sole and exclusive remedy for any breach of warranty, [and any extended limited warranty coverage is conditioned upon the Buyer registering the Product in accordance with LF’s guidelines, i.e., using the HALO program to register all “connectable” Products.] (C) Parts: Parts shall have the following limited warranty: Parts are warranted to the original Buyer for ninety (90) days from the date they are received. Such limited warranty shall be Buyer’s exclusive remedy for any breach of warranty. To make a claim (parts only) during the limited warranty period, Buyer must contact LF for an RMA Number (see Section 7). For Non-Consumable (NC) part claims, Buyer will be subject to an “Unreturned Equipment Charge” which may be the price of the replacement part, if the replaced NC part is not returned within thirty (30) days of opening the claim. If, in LF’s sole discretion, the part is damaged due to accident, misuse, abuse, fire, flood, Force Majeure Events, or other contingencies beyond LF’s control, LF may deny the claim, in which case Buyer shall not be entitled to a credit, and any replacement parts must be purchased pursuant to LF’s credit terms. THE WARRANTY STATEMENTS SET FORTH IN THIS SECTION 10 ARE THE SOLE LIMITED WARRANTIES MADE BY LF WITH RESPECT TO THE PRODUCTS PURCHASED BY OR PROVIDED TO BUYER PURSUANT TO THIS AGREEMENT AND ARE IN LIEU OF ALL OTHER WARRANTIES BY LF, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. CONSEQUENTIAL DAMAGES: NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LF SHALL HAVE NO LIABILITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOSS OF CAPITAL, LOSS OF PRODUCT, LOSS OF PROFIT, LOSS OF USE, LOSS OF POWER, POWER OUTAGES, COST OF REPLACEMENT POWER, OR ANY INDIRECT, SPECIAL, LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
12. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL LF’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO THE SALE OF ANY PRODUCTS PURSUANT TO THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID BY BUYER TO LF FOR SUCH PRODUCTS.
13. INSURANCE: LF’s standard certificate of insurance shall be deemed to satisfy any and all insurance requirements of Buyer.
14. INDEMNITY: LF will indemnify and hold Buyer harmless for claims, damages, losses or expenses, but excluding loss of use, due to bodily injury to person or damage to tangible property (“Claims”) to the extent solely caused by LF’s negligent acts or omissions; and LF’s indemnification and defense obligation, if any, applies only to Claims caused solely by a defect in design or manufacturing of the equipment or the sole negligence of LF. For the sake of clarity and avoidance of doubt, any indemnification and defense obligations by LF are conditioned upon Buyer’s/end-use customer’s adherence to and compliance with LF’s specifications regarding the Product, including but not limited to Product’s inspection and maintenance schedule, cleaning procedures, electricity and circuit requirements, and environmental conditions.
15. FORCE MAJEURE: Delay in or failure to carry out the duties imposed upon either party (except Buyer’s duty to make invoiced payments to LF) under this Agreement shall not constitute default hereunder or give rise to any claim for damages if such delay or failure results directly or indirectly from acts of God, pandemic or epidemic, diseases, quarantines, unavoidable casualties, concealed conditions, acts of any civil or military authority; riot, insurrections, and civil disturbances; war, invasion, act of foreign enemies, hostilities (regardless of whether or not war is declared), rebellion, revolution, terrorist activities; strikes, lockouts or other labor disputes; government sanction; embargoes and importation delays; shortage or unavailability of labor, supplies, materials, equipment or systems; fire, transportation contingencies; laws, statutes, regulations, and other legal requirements, orders or judgments; acts or order of any government or agency or official thereof, other catastrophes or any other similar occurrences beyond such party’s reasonable control, all of the aforesaid being herein for convenience referred to as “Force Majeure Events.” In the event that LF’s work is delayed, impeded or rendered costlier by a Force Majeure Event, LF shall provide Buyer with at least ten (10) days’ prior written notice advising Buyer of any price increase. Force Majeure Event delays shall also extend the estimated delivery date on a day-by-day basis.
16. TERMINATION: (A) Products: See above, CANCELED ORDERS. (B) Subscription Services: For any Subscription Services purchased by Buyer, Buyer agrees: (a) to be bound by the terms herein and by LF’s Master Subscription Agreement, found at https://www.lifefitness.com/enus/legal/subscriptions. Either party may elect to terminate any Subscription Services at the end of Buyer’s then-current Subscription Term by providing notice in compliance with the Master Subscription Agreement on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless the Subscription Service(s) is so terminated, the Subscription Term will automatically renew for a Subscription Term equivalent in length to the then expiring Subscription Term at LF’s then current Subscription Charges unless otherwise provided by LF in writing. (C) Financial Distress: Either party may terminate the Agreement with immediate effect by written notice if the other party enters into administration, liquidation, arrangement with its creditors (except for a solvent restructuring), has a receiver appointed, or ceases to carry on business (or any analogous procedure in the relevant jurisdiction).
17. WAIVER; PRIORITY OF AGREEMENTS: No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective or a continuing waiver, except pursuant to a written instrument signed by the party or parties waiving compliance. Any such waiver shall be effective only in the specific instance and the specific purpose stated in such writing. This Agreement constitutes the sole and complete agreement of the parties, and it provides the sole and exclusive remedies available from LF, its owners and affiliates, and from any manufacturers and suppliers of LF products (and their insurers) in the event of a claim or suit against Buyer or any of Buyer’s owners, agents, affiliates, employees or insurers, and as to all other rights and obligations stated in these Terms and Conditions, including but not limited to those pertaining to pricing, payment terms, warranty or liquidated damages. This Agreement is specifically intended by the parties to supersede any other agreement or obligation, (including those stated or referenced in Buyer’s purchase orders, policies, vendor guidelines and any other documents that pre-date or post-date this Agreement), as well as any contribution, defense, indemnity or other obligations that otherwise may be imposed by law or equity.
18. SEVERABILITY OF PROVISIONS: In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of the Agreement shall remain valid and enforceable according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
19. PRICE ADJUSTMENT:
(A) External Factors. Buyer acknowledges that the Products’ price and associated costs and taxes are subject to external factors unknown to LF at the Agreement date (“External Factors”), including, but not limited to: (a) fluctuations in prices for raw materials, fuel, transportation; (b) fluctuations in foreign exchange; (c) changes to applicable law, duties, tariffs and tolls; and (d) Force Majeure Events. LF may notify Buyer of a change to a price caused by an External Factor 30 days after Order is placed, or whatever notice period may be required by applicable law. Buyer may suggest ways for LF to mitigate the External Factor, which LF will consider in good faith. If LF and Buyer cannot agree on the price change caused by an External Factor within 10 business days of notification, LF may at its option: (a) proceed on the basis of the unchanged price; or (b) terminate the Order on 1 business days’ prior written notice.
(B) Buyer’s Factors. Buyer acknowledges that if the price and associated costs and taxes increase, and are dependent on Buyer’s Factors, which are within the control of Buyer, including: (a) failure or delay to give LF information or instructions; or (b) request by Buyer: (i) to schedule the Requested Delivery Date; or (ii) to extend the Requested Delivery Date, to a date more than nine (9) months from the Order Acknowledgement date; then LF may, after giving the Buyer 5 business days’ written notice, adjust the Products price to reflect current pricing as of the new Requested Delivery Date and/or to take account of Buyer’s Factors.
(C) Inability to Reach Agreement. If Buyer seeks to extend the Requested Delivery Date to a date more than nine (9) months from the Order Acknowledgement Date, and Buyer does not agree to LF’s proposed adjusted price, reflecting updated pricing as of the new Requested Delivery Date, LF has the right to cancel the Order and Buyer agrees to pay a 20% restocking fee in connection with the Order.
(D) Fuel Surcharge. The Fuel Surcharge Program, attached hereto as Schedule A and incorporated by reference, will apply to all delivered prices and Terms with DDP Incoterms for 2023 and beyond.
20. PRICE ESCALATION: If the term of the Agreement exceeds one (1) year, LF may automatically adjust the LF MSRP Price List(s): (i) annually effective on each new Order after the adjusted Price List(s)’ effective date, and (ii) periodically, with five (5) days prior written notice, during the Term of the Agreement if subsections (a) through (d) herein cause a significant increase in LF’s input costs, and will be effective on any Orders placed after the notification. The price adjustment shall be based on: (a) changes to the cost of raw materials and/or labor costs related to personnel responsible for manufacturing and/assembling the Products, (b) macroeconomic conditions, such as taxes, tariffs or duties, inflation, increased logistics/transportation costs, fluctuations in foreign exchange rates, natural disasters, labor shortages/strikes, etc., (c) applicable market trends, or (d) other events not within LF’s control that impact the cost of manufacturing or selling the Products. The variation in the cost of the Products shall be consistent with applicable market indexes, where available, third-party sources or other evidence. LF reserves the right to add periodic surcharges to Orders, including without limitation, adjustments for the then-current price of fuel, such surcharges to be specified and invoiced by LF.
21. BOLT DOWN: LF RECOMMENDS that all strength training equipment be secured to the floor to prevent tipping, rocking or displacement which might occur in the event of unanticipated use of the equipment. LF also REQUIRES that certain pieces of strength training equipment be secured to the floor. Please contact our Customer Service Department or your account representative for specific details.
22. ASSIGNMENT: This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either party without prior written notice to or consent of the other party in connection with a merger, consolidation, acquisition, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates.
23. AUTHORITY OF AGENTS: Buyer acknowledges that LF distributors and sales representatives have not been granted any authority from Seller to modify any of these terms and conditions on behalf of the Seller, to make additional representations or offer additional warranties concerning the Products which are not otherwise expressly provided herein, or to otherwise legally bind the Seller.
24. ETHICS AND COMPLIANCE: Each party will: (a) comply with applicable anti-bribery and anti- corruption laws; (b) not engage in any activity which would be an offence under anti-bribery and anti-corruption laws; and (c) promptly report to the other’s ethics, legal or compliance department any request for undue financial or other advantage received connected with the Agreement. Each party will comply with applicable anti-slavery and human trafficking laws. Each party will: (a) not engage in any activity which would be a tax evasion facilitation offense; (b) maintain policies and procedures to prevent the facilitation of tax evasion by another person; and (c) report to the other any request received to facilitate the evasion of tax connected with the Agreement.