Terms of Sale
These terms of sale (“Terms”) govern any quote, quotation, or other offer (“Quote”) by National Fitness Campaign, LLC (“NFC”) to sell and supply the Fitness Court System described in any Quote (“Fitness Court System”) to a purchaser (“Purchaser”). The Fitness Court System includes the equipment (“Equipment”) specified in the Quote. These terms are incorporated into the Quote either by reference in the Quote, attachment to the Quote, or by delivery of a copy to the Purchaser. These Terms are available on our website at: www.nationalfitnesscampaign.com.
Purchaser’s acceptance of the Quote is expressly limited to the terms and conditions contained in the Quote and these Terms. No additional or different terms or conditions, whether proposed by Purchaser in its purchase order or otherwise, will be binding on NFC unless expressly agreed to by NFC in writing. Commencement of any work or of any deliveries pursuant to a Quote will be deemed an unconditional acceptance by Purchaser of these Terms unless NFC has agreed in writing to any changes. In case of conflict between the provisions contained in the accompanying Quote and these Terms, the particular provisions in the Quote shall prevail. Purchaser and NFC are each a “Party” and collectively, the “Parties.” References to these Terms herein includes the Quote and any related exhibit, attachment, or modification.
Purchase Price and Payment
The price of the Fitness Court System will be specified in the Quote (“Purchase Price”). Purchaser is responsible for paying the shipping costs, including insurance, and NFC will notify Purchaser of the costs prior to the shipping date. Purchaser is solely responsible for, and will pay and hold NFC harmless from all taxes, with respect to the sale, shipment or use of the Fitness Court System; provided that Purchaser will not be responsible for any taxes imposed on or relating to NFC’s income, revenues, gross receipts, or employees.
Shipment and Delivery
Unless the Parties agree in writing, NFC will select the method of shipment of the Fitness Court System and will deliver the Fitness Court System to the agreed delivery location using NFC’s standard method for packaging and shipping. Delivery periods in the Quote are estimates only. NFC will use commercially reasonable efforts to deliver the Fitness Court System promptly, however, NFC will not be liable for any delay or for any incidental or consequential damages arising from delay. Purchaser is not entitled to rescind its obligations to NFC for any delay unless expressly provided in the Quote.
Delivery shall be made to areas readily accessible by truck. NFC will schedule delivery with Purchaser, and NFC and Purchaser will make the necessary arrangements for delivery in accordance with such schedule. If delivery is canceled or delayed for reasons outside of NFC’s control, including the Purchaser not being available or prepared to accept delivery when scheduled, NFC may (i) take away the Equipment and redeliver at a later date, charging the Purchaser for any additional expense thereby incurred (including temporary storage, demurrage, and remobilization).
Purchaser is responsible for unloading the Equipment from the truck of NFC’s carrier. Purchaser will provide a forklift and forklift operator to unload the Equipment at its own risk and own expense.
Purchaser will inspect the Fitness Court System upon receipt, including inspection for damage to cartons and shortages. Purchaser will be deemed to have accepted the Fitness Court System unless it notifies NFC in writing that the Fitness Court System does not conform to the specifications provided by NFC, including any missing items of Equipment or any concealed damage, within 14 days of delivery. If Purchaser timely notifies NFC that any nonconforming elements of the Fitness Court System, NFC will ship replacements at NFC’s expense to the Delivery Location.
NFC will provide Purchaser with a Certificate of Warranty which sets out NFC’s exclusive warranty regarding the Fitness Court System (“Warranty”).
Purchaser Obligations Regarding Installation, Use, and Maintenance
Purchaser is solely responsible for the proper installation, maintenance, inspection, and monitoring of use of the Equipment. Purchaser will comply with the instructions for installation and maintenance contained in the National Fitness Campaign Installation and Maintenance Guide.
Purchaser acknowledges that the Equipment is intended for use by individuals at least 14 years of age and that use by persons under this age may be dangerous and is not recommend by NFC. Purchaser will take reasonable steps to ensure that the Equipment is not used by individuals under the age of 14.
Purchaser acknowledges that: (i) all sporting activities carry the risk of injury to the participants, and (ii) improperly maintained equipment and inadequate supervision contribute to the risk of injury. Purchaser agrees that that it will inspect and maintain the Equipment to reduce the risk of injury to users.
Applicable Safety Standards
The Fitness Court is an outdoor adult fitness court and not intended for use by individuals who are younger than 14 years of age.
Many states require the construction and installation of playgrounds to comply with American Society for Testing and Materials (ASTM) and Consumer Product Safety Commission (CSPC) guidelines. Although ASTM has adopted ASTM F3101-15 Standard Specification for Unsupervised Public Use Outdoor Fitness Equipment (there are no CPSC guidelines), no states currently require compliance with the ASTM outdoor fitness guidelines.
It is common for public bodies to require that playground equipment be certified by the International Playground Equipment Manufacturers Association (IPEMA) as compliant with ASTM standards. No certification is available for the Fitness Court because IPEMA does not currently certify compliance of outdoor fitness equipment.
Compliance with the standards in ASTM F3101-15 is voluntary absent a legal requirement. Although NFC looks to the safety standards of ASTM F3101-15 in its design and manufacture of the Fitness Court, it is not able to certify compliance with these voluntary guidelines.
Limitation of Liability
Purchaser acknowledges that NFC exercises no control over Purchaser’s selection, installation, or construction of the Fitness Court System and Purchaser therefor assumes all risk of liability for the result obtained from or the safety of the Fitness Court System. To the extent permitted by law, NFC will not be liable for any indirect, special, incidental, consequential, or punitive damages of any nature whatsoever, or any lost profits or revenues or diminution in value, including without limitation personal injury or property damage to any person whether based on warranty, contract, negligence, or any other applicable legal theory, arising out of the selection, installation, inability to use, or the use of the Fitness Court System, regardless of whether such damages were foreseeable, whether NFC was advised of the possibility of such damages, or the legal or equitable theory upon which the claim is based. Except for its Warranty replacement obligations, NFC’s aggregate liability to Purchaser under this Agreement will not exceed the Purchase Price. Without limiting the generality of the foregoing, Purchaser assumes all risk and liability for the use of the Fitness Court System.
Installation and Assembly
Assembly, installation, or erection is the responsibility of the Purchaser, and NFC accepts no liability whatsoever for defects or damages resulting from the Purchaser’s assembly, installation or erection of the Fitness Court System or any claims for death or personal injury resulting from any use of the Fitness Court System to the extent caused, in whole or in part, by such improper assembly or the resulting defects or damages to the Fitness Court System. In such circumstances, Purchaser shall indemnify and hold NFC harmless for any liability, damages or costs arising out of or relating to Purchaser’s acts or omissions in accordance with the section entitled “Indemnification and Attorneys’ Fees.”
Indemnification and Attorneys’ Fees
Purchaser hereby agrees to indemnify and hold NFC harmless for any liability, claims, damages or costs (including reasonable attorneys’ fees), whether arising out of a suit or claim between NFC and the Purchaser or a third party, or related to the failure of the Purchaser to perform any of its obligations or comply with any of the conditions contained in these Terms. In the event NFC has to take any action against the Purchaser to obtain enforcement or compliance with any of the terms or conditions contained in these Terms, the Purchaser agrees to pay all of the costs and expenses of such action (including reasonable attorneys’ fees).
Entire Agreement. This Agreement, including all related exhibits, together with the NFC Installation and Maintenance Guide, constitutes the entire agreement of the Parties with respect to the Fitness Court System. Without limitation of anything contained in this section, Purchaser acknowledges that except for the Warranty, neither NFC nor any other person has made or makes any express or implied representation or warranty, either written or oral, on behalf of NFC, including any representation or warranty arising from statute or otherwise in law.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth in the Quote (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this section.
Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify these Terms to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendment. No amendment to or modification these Terms is effective unless it is in writing and signed by an authorized representative of each Party.
Waiver. No waiver under these Terms is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between the Parties.
Assignment. Purchaser may not assign any of its rights or delegate any of its obligations under this these Terms without the prior written consent of NFC. NFC may assign any of its rights or delegate any of its obligations to any person/entity acquiring all or substantially all of NFC’s assets. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this these Terms.
No Third-Party Beneficiaries. These Terms benefit solely the Parties and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
Choice of Law. These terms, including all exhibits, and all matters arising out of or relating to these Terms are governed by the laws of the State of California, without regard to the conflict of laws provisions thereof.
Venue. In the event of any legal action or claim arising under or related to these Terms or the Fitness Court System, venue shall be in federal or state court in the same city as the U.S. District Court that is closest to the principal office of the Party against whom the claim is filed.
Attorneys’ Fees. In any legal action or claim arising under or related to these Terms, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees, including those on appeal.
Force Majeure. NFC shall not be liable or responsible to Purchaser, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected NFC’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) national or regional emergency; or (d) strikes, labor stoppages, or slowdowns or other industrial disturbances.
Relationship of Parties. Nothing in these Terms creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.