Total Gym Commercial Standard Terms and Conditions of Sale

  1. SELLER AND BUYER. “Seller” shall mean TOTAL GYM COMMERCIAL, “Buyer” shall mean the person indicated under “SOLD TO:” on the face of Sales Quotation, Order, or order confirmation.

  2. RISK OF LOSS. Delivery of goods to common carrier or licensed trucker shall constitute delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. It is Buyer’s specific obligation to thoroughly inspect all merchandise upon delivery, and prior to signing receiving paperwork.  All damage must be noted on receiving paperwork.  Any damage discovered subsequent to receiving, not noted on receiving paperwork, is the specific responsibility of the buyer.

  3. DELIVERY IN INSTALLMENTS. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein.  All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries.  Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.

  4. EXTENSION OF CREDIT BY SELLER. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any goods or services when due or any other reason, as determined by Seller acting in its sole discretion, and in such event all subsequent shipments shall be paid for prior to delivery.

  5. FORCE MAJEURE. Seller shall not be liable for failure to deliver or delays in delivery occasioned by strikes, lockouts, fires, inability to obtain materials or shipping space, breakdowns, delays of carriers or suppliers, governmental acts and regulations, and other causes beyond Seller’s control.

  6. LIMITATION OF REMEDIES. Seller’s liability shall be limited to its warranty, and shall in no event include Buyer’s costs, lost profits or good will, or any other direct, indirect, special or consequential damages.

  7. COMPLIANCE WITH APPLICABLE LAWS. Buyer agrees to use or make use of any goods delivered hereunder in compliance with all applicable laws (including, without limitation, all applicable patent laws), statutes, rules, regulation or orders of the United States government or of any state or political subdivision thereof.  Buyer further agrees to save Seller harmless from (i) any and all judgments and decrees that may be entered against Seller or Seller’s vendors, immediate or remote, and (ii) any and all costs and expenses that Seller may incur by virtue of Buyer’s violation of any such laws (including any claims for infringement, whether such infringement be direct or indirect).  Buyer agrees that it will, at Seller’s request, and at Buyer’s sole cost and expense, defend or assist in the defense of any suit or action that may be brought against Seller or Seller’s vendors, immediate or remote, with respect to any such violation or infringement.

  8. TAXES AND SHIPPING CHARGES. Unless otherwise stated on the front of this Sales Order, the prices do not include (i) sales, use, or similar taxes applicable to the goods and services furnished hereunder, or (ii) any shipping charges required to deliver any goods furnished hereunder to Buyer’s place of business. In the event an audit by any governmental agency requires the payment of any such taxes with respect to the good or services furnished under this Sales Order, Seller shall invoice Buyer for such taxes and Buyer shall make payment with respect to such taxes within ten (10) days after receipt of Seller’s invoice.

  9. COSTS OF COLLECTION. Buyer shall pay all expenses of Seller incurred or paid in protecting, enforcing or exercising Seller’s interests rights or remedies created by connect with or provided herein.  Such expenses shall include, without limitation, legal fees and other costs of collection of Seller.

  10. GOVERNING LAW. This contract shall be governed by and shall be construed according to the laws of the State of California.

  11. Should any dispute arise concerning the terms hereof or any action filed to collect any amounts due hereunder, the sole and exclusive jurisdiction and venue for such action shall be the District Court of San Diego, California, or the United States District Court for Southern California, whichever is applicable. 

  12. TERMINATION OR WAIVER IN WRITING This contract may not be changed or terminated orally, and no change, termination or waiver of any of its provisions shall be valid unless in writing and signed by the party against whom such claimed change, termination or waiver is sought to be enforced.

  13. CONSTRUCTION. Every provision hereof shall be construed simply according to its fair meaning and not strictly for or against either party.

  14. SOFTWARE. If an order includes computer software, such computer software is transferred by Seller to Buyer pursuant to a single user license.

  15. TERMS OF PAYMENT. (a) Payment is net thirty (30) days from date of invoice, unless otherwise acknowledged by Seller. Orders are subject to credit approval by Seller, which may in its sole discretion at any time change the terms of Buyer credit or require advance payment or payment by official bank check.  If Seller reasonably believes that Buyer’s ability to make payments is impaired, Seller may cancel any order or remaining balance thereof, and Buyer will remain liable to pay Seller for Products already shipped.  Buyer will submit such financial information as Seller may reasonably require for determination of credit terms. (b) Checks are accepted subject to collection and the date of collection will be deemed the date of payment.  Any check received from Buyer may be applied by Seller against any obligation owing by Buyer to Seller under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Buyer liability for any additional amounts owing by Buyer to Seller.  The acceptance by Seller of such check will not constitute a waiver of Seller right to pursue the collection of any remaining balance.  (c) Buyer will pay the entire net amount of each invoice from Seller pursuant to the terms of such invoice without offset or deduction.  Invoices not paid when due will bear interest to date of payment at the rate of two (2%) per month or any part thereof or such lower rate as may be the maximum permitted by law.  If Buyer fails to make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller will be entitled to reimbursement for costs of collection and reasonable attorneys’ fees.

  16. WARRANTY. Seller warrants new products, once paid for, against defective workmanship and/or materials under normal and proper use in accordance with Seller statement of warranty policy and subject to the following limitations: (a) Seller obligation shall be limited to repairing or replacing defective parts.  No allowance shall be granted for repairs made by Buyer without Seller prior written approval.  The decision to replace or repair shall be solely at Seller election. (b) Seller warranty does not apply to parts requiring replacement or repair due to abnormal wear and tear, improper use, corrosion (perspiration), improper maintenance, improper rated, grounded or dedicated electrical circuits or improper storage, nor does it apply where all or part of the product has been altered from its original state by Buyer or a third party. (c) THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE INCLUDING WARRANTY OR MERCHANTABILITY OF FITNESS FOR PARTICULAR PURPOSE, AND IS IN LIEU OF ALL OTHER LIABILITIES OF TOTAL GYM COMMERCIAL INCLUDING DIRECT, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES OR PENALTIES EXPRESSED OR IMPLIED WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE OR OTHER TORT.

  17. CANCELLATION/PRODUCT RETURNS. No return of Products will be accepted by Seller without a return material authorization number (RMA No), which will be issued in Seller’s sole discretion.  Returned Products must be in original shipping cartons and must be complete with all packing materials.  If returned Products are claimed to be defective, a complete written description of the nature of the defect must accompany all returned Products.  All items not eligible for return will be returned to Buyer, transportation collect.  In the event of order cancellation or return, seller has the right to charge a 25% restocking fee.