THIS AGREEMENT (“Agreement”) entered into by and between FIT2order (“Company”) and the customer (“Customer”) is effective on the date the written proposal is accepted by Customer in writing or in payment (“Effective Date”)
Subject to the terms and conditions of this Agreement, during the term of this Agreement, FIT2order shall provide to Customer the services and products described in the Service/Product Order, which includes, but is not limited to, band2FIT resistance bands, Healthy @ Work Kits, and Cookbooks. From time to time, the parties may add new Service/Product Orders, which, upon execution by both parties, will be the subject to the terms and conditions of this Agreement.
Customer shall pay all fees according to the Service/Product Order.
BILLING AND PAYMENT TERMS
Unless otherwise indicated in the applicable Service/Product Order, once the final proposal is accepted, Customer shall pay 50% deposit on the date of acceptance of the written or oral proposal. At the time of delivery, Customer shall pay the 50% balance and any delivery or shipping fees incurred net 30 days. All payments must be made in U.S. dollars. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.
CANCELLATION POLICY AND CHANGE ORDER
Unless otherwise indicated in the applicable Service/Product Order, if Customer needs to cancel the order after FIT2order has received the 50% deposit, FIT2order will refund the deposit less all purchased items and design time incurred for the project up to receiving the cancellation request. No changes to the order/proposal may be made upon approval by Customer of final design. If Customer requests to increase or decrease the quantity of units after unit items have been ordered, Customer agrees to pay the adjusted prices.
All FIT2order Product orders are final sales and non-refundable.
In the event an item is unavailable at the time order is placed, FIT2order reserves the right to substitute an item of the same type and function of equal or greater value, and as close to Customer’s original item as possible.
Shipping is calculated based on size, weight and location. All shipping supplies and handling fees will be applied to the shipping invoice. It is the Customer’s responsibility to provide FIT2order with complete and accurate names and addresses to insure on-time delivery of Products. FIT2order is not responsible for late delivery and reshipping fees for returned packages due to an incorrect address provided by the client.
All payments required by this Agreement exclude all sales, value-added, use, on other taxes and obligations all of which Customer will be responsible for and will pay in full, except for taxes based on Company’s net income.
COMPLIANCE WITH LAW
Customer acknowledges that Company exercises no control over the content of the information passing through the Customer’s websites and that it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations.
The Service/Products are for use by Customer only and not for resale to any third party.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products including the terms and conditions of this Agreement. Confidential information will include, but not be limited to, each party’s proprietary software, vendor information, and customer information. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, not disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary) any of the other party’s Confidential information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential information if such information: (1.) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (2.) becomes known (independently or disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (3.) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (4.) is independently developed by the receiving party.
WARRANTIES BY CUSTOMER
Customer represents and warrants that Customer’s Service/Products, products, materials, data and information used by Customer in connection with this Agreement as well as Customer’s and its permitted customers’ and users’ use of Service/Products does not as of the Purchase Date, and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation.
In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, in addition to any other remedies available at law or in equity, FIT2order will have the right to immediately, in Company’s sole discretion, suspend any related Service/Products if deemed reasonably necessary by FIT2order to prevent any harm to FIT2order’s business.
WARRANTIES AND DISCLAIMERS BY FIT2ORDER
The Services/Products are provided on an “AS IS” basis, and Customer and its agents’ use of the Service/Products is at its own risk. Company does not make, and hereby disclaims, any and all other express or implied warranties to Products, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage or trade practice. Company does not warrant that the Service/Products will be uninterrupted, error-free or completely secure.
For any and all Service/Products requiring the physical use of Customer, FIT2order hereby disclaims any and all responsibility for any injuries that may result from using and participating in the activities shown or indicated on the Service/Product. Customer expressly waives and releases any claim at any time for injury of any kind against FIT2order.
The Services/Products of FIT2order do not provide medical advice. Any information contained in FIT2order’s websites, brochures or marketing materials is NOT intended to substitute or act as medical advice. Customer will not use this information to diagnose or treat a health problem. Customer will consult with his/her physician prior to starting a fitness regime. It is advised that Customer seeks the advice of a physician before participating in any activities shown on the Service/Product, including the use of any suggested equipment. Customer agrees to inspect all equipment, including but not limited the band2FIT resistance bands and Healthy Habits Kit items, prior to use and should not engage with defective equipment.
FIT2order will not be liable to Customer for any lost revenue, lost profits, replacement goods, loss of technology, rights or Service/Products, incidental, punitive, indirect or consequential damages, loss of data, or interruption of FIT2order’s Business, even if Company is advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
FIT2order’s maximum aggregate liability to customer related to or in connection with this Agreement will be limited to the total amount paid by Customer to FIT2order hereunder for the prior 12-month period.
BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE
Customer acknowledges that FIT2order has set its prices and entered into this Agreement I reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
FIT2ORDER’S INDEMNIFICATION OF CUSTOMER
FIT2order shall indemnify, defend and hold Customer harmless from and against any and all costs, liabilities losses and expenses, including but not limited to, reasonable attorneys’ fees (collectively, “Losses”) resulting from any claim, suit, action or proceeding (each, an “Action”) brought against Customer alleging the infringement of any third party registered U.S> copyright or issued U.S. patent resulting from the provision of Service/Products pursuant to this Agreement (but excluding any infringement contributory caused by Customer’s Business); or within 30 days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
This Agreement will be effective commencing on the Effective Date and continuing indefinitely thereafter unless and until terminated according to the provisions of this section. This Agreement will automatically renew for additional terms of one year each.
Either party may terminate this Agreement for convenience upon written notice at any time during which no Service/Product Order is in effect.
Either party will have the right to terminate this Agreement or the applicable Service/Product Order, if the other party breaches any material term of condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five days after receipt of written notice from FIT2order. Either party may agree to terminate this Agreement if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors or the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
LIABILITY FOR TERMINATION
Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
EFFECT OF TERMINATION
Upon the Effective date of expiration or termination of this Agreement: (1) FIT2order may immediately cease providing Services/Products hereunder; (2) any and all payment obligations of Customer under this Agreement will become due immediately; (3) within 30 days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, government act or failure of the Internet, provided that the delayed party: (1) gives the other party prompt notice of such cause, and (2) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
Customer shall not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization or nations within whose jurisdiction Customer operates or does business.
GOVERNING LAW; DISPUTE RESOLUTION, SEVERABILITY; WAIVER
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Maryland and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either party through binding arbitration. Arbitration will be conducted in Baltimore County, Maryland. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waive of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.