1. AGREEMENT.
These terms and conditions constitute a continuing sale Agreement between EVOLGEAR Inc. (“Seller”) and Buyer (each, a “Party” and together, the “Parties”) for all products, parts and/or services of fitness equipment (“Products”) provided by Seller to Buyer in connection with Buyer’s order of Seller’s Products (“Purchase Order”). No other terms, conditions or modifications of this Agreement shall be binding upon the Parties unless agreed in writing by Seller. 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 any terms or conditions of this Agreement are null and void. Seller reserves the right to change this Agreement and terms and conditions at any time. BY VISITING OUR WEBSITE AND ACCESSING THE INFORMATION, PRODUCTS, SERVICES, AND RESOURCES, WE PROVIDE FOR YOU, EITHER DIRECTLY OR INDIRECTLY, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND THESE TERMS AND CONDITIONS FOR ANY AND ALL PRODUCTS YOU PURCHASE.
2. DELIVERY AND INSTALLATION.
2.1. Seller’s Delivery Responsibilities and Limitations.
Seller shall use its commercially reasonable best efforts in the ordinary course of business to effectuate delivery to Buyer as specified in the Purchase Order, if Buyer requests delivery by Seller and Seller confirms delivery service on Seller’s Order Acknowledgment form that it issues to Buyer after receiving the Purchase Order (“Order Acknowledgment”). Seller shall not be liable for any damages, consequential, incidental, liquidated or otherwise, arising from failure to meet a scheduled or requested delivery date (“Delivery Date”). If a delay in delivery is not due to Buyer’s actions or inactions, such as delays or Product holds at Buyer’s request or due to Buyer’s failure to make timely payment or take other necessary action, Buyer shall not be subject to price increases or fees as a result of Seller’s failure to meet a Delivery Date.
2.2. Installation.
Seller is not responsible for installation of Products, unless (a) Buyer requests installation by Seller, (b) Seller gives written confirmation of installation service, and (c) the Parties agree in writing on Seller’s installation fee. Absent such arrangements, Buyer is responsible for installation of Products and may retain a third-party installation company (“Third-Party Installer”) at Buyer’s discretion. If so retained, the installation schedule, services, fees, and other terms and conditions shall be by separate agreement between the Third-Party Installer and Buyer, for which Seller shall have no responsibility.
3. PARTIAL SHIPMENT.
Seller may offer partial shipments of Products to Buyer as such Products become available. Buyer’s agreement to partial shipments shall not be unreasonably withheld.
4. RISK OF LOSS.
If Seller delivers the Products but does not install them per Section 2.1 of this Agreement, title to and risk of loss of the Products passes to Buyer at the time they are shipped from Seller’s distribution center in Henderson, Nevada. Unless otherwise agreed upon, the F.O.B. point is such distribution center. If Buyer delays the Delivery Date after the Products leave the F.O.B. point, Buyer is responsible for any resulting storage or delivery costs associated with the delay.
If Seller delivers and installs the Products per Section 2.1 of this Agreement, title to and risk of loss of the Products passes to Buyer upon Seller’s completion of delivery and installation.
If Buyer picks up the Products from Seller’s distribution center or arranges for pickup and delivery by a third party, title to and risk of loss of the Products passes to Buyer at the time of pickup.
5. PAYMENT.
Seller will invoice Buyer for the price of each Product ordered. The invoice will be in US dollars and will include charges for delivery costs if Buyer requests delivery, installation fees if Buyer requests installation, taxes, surcharges, and other amounts payable to Seller under the terms of the Purchase Order and Order Acknowledgment.
At the time of the Purchase Order, Buyer must pay fifty percent (50%) of the invoice price (“Initial Payment”). Once the Purchase Order is ready to be shipped or picked up by Buyer (“Final Payment Date”), Buyer must pay the remaining balance (“Balance Payment”) prior to shipment or pickup. Payment terms and credit lines are subject to Seller’s credit approval in Seller’s sole discretion.
If other payment terms are agreed upon by Buyer and Seller in lieu of those set forth above, then until Seller receives payment in full, Buyer grants Seller a security interest in and a lien on all Products and Buyer consents to Seller’s filing of UCC financing statements evidencing Seller’s security interest/lien and Buyer agrees to assist Seller in doing so.
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 provides a valid exemption.
If Seller has reasonable grounds for insecurity regarding performance by Buyer of any obligation under this Agreement, Seller may, in addition to any other remedies available at law or in equity, require that Buyer provide adequate assurance of payment, including, but not limited to, full payment for Products prior to pickup or delivery.
If Buyer fails to make the Balance Payment by the Final Payment Date, the Balance Payment amount shall bear interest at six percent (6%) per annum or the maximum rate allowed by law, whichever is less. Such interest shall be in addition to, and without limitation, of any other rights or remedies which Seller may have under this Agreement or at law or in equity. If Buyer fails to make the Balance Payment within one hundred eighty (180) days after the Final Payment Date, Seller may cancel Buyer’s order and shall thereupon be entitled to the Initial Payment as liquidated damages as Seller’s sole remedy for Buyer’s breach of its payment obligations, and not as a penalty or forfeiture.
Buyer agrees to pay any attorney’s fees and costs incurred by Seller in enforcing its rights under this Agreement.
6. CANCELLATIONS.
A Purchase Order cannot be canceled, in whole or in part, later than ten (10) days after Seller’s issuance of the Order Acknowledgment (the “Grace Period”). After the Grace Period, the Purchase Order is final and the Initial Payment is non-refundable. A request for cancellation prior to the end of the Grace Period must be sent by email to: info@evolgear.us.
7. ACCEPTANCE BY BUYER.
Products shall be deemed accepted by Buyer on the date received by Buyer unless, within ten (10) days after receipt, Buyer gives Seller written notice stating (a) that the Products are not accepted due to nonconformity with the Purchase Order and (b) the details of the nonconformity and reason for rejection. Seller may then, at its discretion, proceed to make any necessary corrections, in which case such correction by Seller shall be Buyer’s sole remedy for the non-acceptance. Upon completion and acceptance of such corrections, the Products shall be deemed accepted by Buyer. Following acceptance of the Products, Buyer cannot revoke acceptance.
8. ALL SALES ARE FINAL.
EXCEPT IN THE EVENT OF CANCELLATION BEFORE THE END OF THE GRACE PERIOD, WHICH SHALL BE SUBJECT TO SECTION 6, NONCONFORMITY WITH A PURCHASE ORDER, WHICH SHALL BE SUBJECT TO SECTION 7, OR A PRODUCT DEFECT COVERED BY SELLER’S WARRANTY, WHICH SHALL BE SUBJECT TO SECTION 9, ALL SALES ARE FINAL, NON-REFUNDABLE, AND NON-RETURNABLE.
9. LIMITED WARRANTY.
Each Product has its own limited warranty, as described in Appendix 1 (“Limited Warranty”). During the Limited Warranty period, Buyer is entitled to replacement or repair of a defective or malfunctioning Product free-of-charge. The Limited Warranty is available only to the original Buyer, is non-transferable, and is the sole and exclusive right to service under warranty. The Limited Warranty is not available if:
(a)
the serial number on the Product cannot be confirmed due to defacement, peeling, or other damage;
(b)
after delivery, the Product was damaged or malfunctions due to an act or omission of Buyer or a Third-Party Installer, including, but not limited to, (i) misuse; (ii) improper installation, modification or repair by someone other than Seller; or (iii) dropping or damaging during installation or transportation;
(c)
the Product is damaged or malfunctions due to fire, earthquake, lightning, wind, flood, Act of God, or other external factors such as electrical malfunctions;
(d)
parts of the Product need replacement due to natural wear and tear or natural deterioration; or
(e)
the cause of the defect or malfunction is otherwise found to be due to Buyer’s or a third party’s action or inaction.
Warranty claims or warranty inquiries should be sent by email to: info@evolgear.us.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, SELLER DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF PROFIT, LOSS OF PRODUCT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, LIQUIDATED, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY MATTERS THAT ARE A SUBJECT OF THIS AGREEMENT.
11. INDEMNIFICATION.
11.1. Of Buyer by Seller.
Seller shall indemnify and hold harmless Buyer and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, and permitted successors and assigns from and against any and all damages, liabilities, costs, loss of use, bodily injury, damage to tangible property, expenses, claims, and judgments including, but not limited to, reasonable attorneys’ fees and disbursements (collectively, “Claims”), to the extent caused by gross negligence or willful misconduct by Seller, or Seller’s breach of any of its obligations, agreements or duties under this Agreement; and Seller’s indemnification and defense obligations, if any, apply only to Claims caused solely by a defect in design of the Product or the sole gross negligence or willful misconduct of Seller.
Buyer must notify Seller promptly in writing (a) of any discovered defect in the Product; or (b) when a user of the Product or other third party claims damages or files a lawsuit in connection with a defect in the Product.
11.2. Of Seller by Buyer.
Buyer shall indemnify and hold harmless Seller and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, and permitted successors and assigns from and against all Claims suffered or incurred and that arise or result from (a) Buyer’s (i) operation of its business; (ii) breach or alleged breach of, or failure or alleged failure to perform under, any agreement to which Buyer is a party; (iii) breach or alleged breach of duty owed to any third party; (iv) negligence; or (v) breach of any of its obligations, agreements, or duties under this Agreement; or (b) negligence or misuse of a Product by any user thereof or accidents or injuries involving anyone on Buyer’s premises if such accident or injury is not due to a Product defect.
12. FORCE MAJEURE.
A Party shall not be considered in breach or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, Act of God, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a)
notify the other Party of the Force Majure Event and its impact on performance under this Agreement; and
(b)
use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
13. PRICE ESCALATION.
If the term of this Agreement exceeds one (1) year, Seller may automatically adjust its pricing: (i) annually effective on each new Purchase Order after the price adjustment, and (ii) periodically, with five (5) working days’ prior written notice, during the Term of this Agreement if there is a significant increase in Seller’s input costs (“Material Cost Escalation”), and such adjustment will be effective on any Purchase Order placed after such notice. Material Cost Escalations include, but are not limited to, market fluctuations, shortages of raw materials, tariffs, Force Majeure Events, inflation, and other factors outside of Seller’s control.
14. WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. Any such waiver shall be effective only if in writing and signed by the Party waiving compliance. Any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent to, or waiver of, any other breach or default in the performance of the same or any other obligation.
15. ASSIGNMENT.
Neither Party may assign this Agreement without the prior written consent of the other Party. Any purported assignment without such prior written consent shall be null and void. Notwithstanding the foregoing, in the event of a merger, consolidation, acquisition, sale of all or substantially all of the equity interests or the assets of a Party, then this Agreement may be assigned by such Party without prior written notice to, or consent of, the other Party.
16. SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their successors and assigns, subject to Section 15. The provisions of this Agreement shall be binding and shall inure to the benefit of the successors and assigns of the Parties.
17. NOTICE.
Any notice or other communication provided for herein or given hereunder to Seller, other than warranty claims or inquiries (see Section 9) or cancellations before the end of the Grace Period (see Section 6), must be in writing and given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return receipt requested) to Seller as follows:
Contact:
Company: Evolgear, Inc.
Address: 170 S. Green Valley Pkwy. Suite 300, Office 309,Henderson, NV 89012
18. AUTHORITY OF AGENTS.
No agent, employee, or representative of either Party has the authority to bind either Party to any covenant, affirmation, representation, or warranty concerning the subject matter of this Agreement other than terms contained herein. Any covenant, affirmation, representation, or warranty not stated in this Agreement shall not be valid or enforceable.
19. GOVERNING LAW; VENUE.
This Agreement shall be governed by the internal laws of the State of Nevada, without regard to conflict of law principles. If litigation results from or arises out of this Agreement or performance hereunder, the prevailing Party shall be entitled to collect its reasonable attorneys’ fees from the non-prevailing Party.Exclusive jurisdiction and exclusive venue for any action brought with respect hereto shall lie in the state courts located in Clark County, Nevada, or, if applicable, the United States District Court for the District of Nevada.
20. COUNTERPARTS/ELECTRONIC SIGNATURES.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile transmission, email, or other electronic form of signature shall have the same force and effect as an original signature.
21. SEVERABILITY.
Whenever possible, each provision of this Agreement shall be interpreted so as to be effective and valid under applicable law, but if any provision is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement will be reformed, construed, and enforced in such jurisdictions as if such invalid, illegal, or unenforceable provision had not been contained herein. 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, EXCLUSION OF DAMAGES, OR LIQUIDATED 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 IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, EXCLUSIONS OF DAMAGES, AND OTHER REMEDIES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
22. ENTIRE AGREEMENT.
This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes and cancels any and all prior or contemporaneous agreements or understandings, written or oral, between the Parties, as well as any contribution, defense, indemnity or other obligations that otherwise may be imposed by law or equity. This Agreement provides the sole and exclusive remedies available from Seller, its owners and affiliates, and from any manufacturers or suppliers of Seller’s products (and their insurers) in the event of a claim or suit by Buyer or any of Buyer’s owners, agents, officers, affiliates, employees or insurers, and as to all other rights and obligations stated herein, including but not limited to those pertaining to pricing, payment terms, warranty or damages.