Fit Bodywrap System Terms and Conditions
FIT BODYWRAP® SYSTEM TERMS AND CONDITIONS
PURCHASE OF THE FIT BODYWRAP® SYSTEM BY BUYER IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. BY PURCHASING THE FIT BODYWRAP® SYSTEM, BUYER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND ACCEPTS THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT PURCHASE THE FIT BODYWRAP® SYSTEM.
DELIVERY; TITLE; RISK OF LOSS. Five Diamond Trading Company, LLC (hereinafter, FDTC) shall deliver the FIT Bodywrap® system (hereinafter, Goods) to Buyer’s facility. The risk of loss, destruction of, or damage to the Goods shall be FDTC’s until delivery of the Goods to Buyer’s facility. Thereafter, title shall pass to Buyer and Buyer shall be fully responsible, and shall hold FDTC harmless for, and assume all risk of loss, destruction of, or damage to the Goods. FDTC shall use reasonable efforts to make prompt deliveries in a commercially reasonable manner. Delivery dates and estimates are, however, not guaranteed.
INSPECTION; GOODS ACCEPTANCE. Buyer shall have the right to inspect the Goods upon receipt and shall, within 3 business days, promptly give notice to FDTC and specify the basis of any claim for damages on account of condition, quality, or grade of the Goods. Failure of Buyer to comply with these conditions will constitute irrevocable acceptance of the Goods by Buyer. Any attempted rejection or revocation of acceptance of such Goods made thereafter shall be null and void unless agreed to in writing by FDTC. Buyer will return any rejected Goods pursuant to FDTC’s Return Merchandise Authorization Policy and Procedure (hereinafter “RMA Procedure”).
INVOICES; PAYMENT. FDTC shall invoice Buyer upon and for each shipment of Goods. Buyer shall pay FDTC for the Goods as agreed.
TAXES. All sales taxes, tariffs, and other governmental charges shall be paid by Buyer and are Buyer’s responsibility except as limited by law. The price of the Goods does not include federal taxes, state, or local sales taxes, use taxes, or occupational taxes. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added, or other similar taxes applicable to the manufacture, sale, price, delivery or use of the Goods provided by FDTC, or in lieu thereof, Buyer shall provide FDTC with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities.
LIMITED PRO-RATED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES.
FIT® Bodywrap – Far Infrared Thermowrap Professional Body Slimming System. Model Number: FIT504C: (1) Controller; (1) Body Wrap; (2) Arm Wraps (“Covered Product”)
Limitation of Warranty: To the extent permitted by local law, FDTC and/or any FDTC third party supplier do not make any other condition or warranty, whether express or implied, of merchantability, satisfactory quality or fitness for a particular purpose.
Limitation of Damages: The remedies provided in this warranty are the sole and exclusive remedies provided to Buyer. In no event shall Five Diamond Trading Company, LLC (“FDTC”) be liable for incidental, direct, indirect, special or consequential damages for breach of this warranty. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation of exclusion may not apply to Buyer.
Local Law: Local law may provide for remedies not identified or otherwise provided for in this warranty. To the extent that this warranty is inconsistent with local law, this warranty shall be deemed modified to be consistent with such local law.
FDTC warrants the Controller to be free of all defects in material and workmanship for one (1) year from the date of purchase (the “Warranty Period”). This warranty does not cover damage due to dropping the controller, incorrect installation, incorrect wiring, cosmetic damage due to use, or damage to the connection ports due to use.
FDTC provides an amortized warranty for the Body Wrap and Arm Wraps to be free from all defects in workmanship for six (6) months from the date of purchase (the “Warranty Period”) as follows:
Warranty only covers manufacturers defects. Punctures, cosmetic damage or discoloration due to use, wear, tear, and abuse are not covered by the warranty. Use of the body wrap without FIT Coats will void warranty due to improper use of product and damage brought about by excessive perspiration.
Warranty Exclusions: This warranty does not apply to any costs, repairs, or services for the following: (1) Service calls to correct the installation of the Covered Product, or to explain the usage of the Covered Product to the buyer; (2) Repairs necessitated by use other than normal use; (3) Damage resulting from misuse, abuse, accidents, alterations, or improper installation; (4) Corrective work necessitated by repairs made by anyone other than FDTC authorized service technician; (5) Wear from normal use of the Covered Product; (6) Cosmetic blemishes and/or wear including yellowing, discoloration or fading of the Covered Product, including the Body Wrap and/or Arm Wraps; or (7) Problems resulting from improper maintenance or modification; operation outside of the Covered Product’s specifications; or misuse. If modifications or repairs are made to Covered Product by anyone other than a FDTC Certified Repair Technician, the warranty will be null and void. Buyer further agrees that any Covered Products modified by anyone other than a FDTC Certified Repair Technician will release FDTC of any/all liability.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WAIVE AND RELINQUISH ANY CLAIMS, DEMANDS, AND CAUSES OF ACTION OR RECOVERIES FOR PUNITIVE DAMAGES, EXEMPLARY DAMAGES, OR STATUTORY DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS OR OTHERWISE WITH RESPECT TO THE SALE OF THE GOODS, INCLUDING ANY LOST REVENUES OR PROFITS, CONSEQUENTIAL, AND/OR INCIDENTAL DAMAGES, BUSINESS INTERRUPTION, OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. NOTWITHSTANDING THE TERMS OF ANY LIMITED WARRANTY, AND/OR IN THE EVENT ANY LIMITED WARRANTY PROVIDED TO BUYER FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL FDTC’S ENTIRE LIABILITY TO BUYER (IN TORT, CONTRACT, FOR INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE) EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE GOODS IN DISPUTE, OR ANY DEFECTIVE OR NONCONFORMING PORTION THEREOF, WHICHEVER IS THE LESSER AMOUNT. BOTH PARTIES UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY ALLOCATES RISK OF NONCONFORMING GOODS BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OTHER APPLICABLE LAW. THE SALES PRICE AGREED TO REFLECT THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY, INCLUDING THE EXCLUSION OF SPECIAL, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, IN THIS AGREEMENT.
RETURNS. Buyer may return Goods that are properly rejected, in accordance with section 2, or do not conform to the warranties, as specified in section 5, herein in accordance with the RMA Procedures, including submittal of a valid Return Merchandise Authorization number by Buyer.
DEFAULT. The failure of either party to perform any Terms and Conditions stated herein, the failure to materially perform any other agreements relating to the Goods between Buyer and FDTC, or either Party’s bankruptcy, insolvency, fraud or inability to pay its debts as they mature, shall constitute a default under these Terms and Conditions and shall, in addition to any other remedies at law or in equity, afford the other Party, among other remedies, all of the remedies of a secured party under the applicable Uniform Commercial Code. In the event of such default, the non-defaulting Party may, in addition to pursuing any of the remedies provided by law, equity, or as set forth herein, (i) in the case of FDTC, refuse to provide any applicable warranty or other service and/or deliver Goods under this or any service agreement relating to the Goods, (ii) in the case of Buyer, refuse to pay under this or any service agreement relating to the Goods, or (iii) in the case of either Party, cancel the sale of the Goods and any pending orders without liability to the other Party. In the event of default by Buyer, FDTC may also, without limiting its other remedies, terminate the sale of the Goods and apply any and all payments received hereunder or otherwise from Buyer to any damages that FDTC may have as a result of the breach by Buyer of these Terms and Conditions or otherwise. To the fullest extent permitted by law, all of a Party’s rights and remedies under these Terms and Conditions shall be cumulative and not exclusive.
Any notices pursuant to these Terms and Conditions shall be in writing and sent to FDTC at the following address: Five Diamond Trading Company, LLC, 13100 Kirkham Way, Suite 202, Poway, California 92064.
MARKETING MATERIALS; USE. Purchase of the Goods includes certain Marketing Materials. Buyer may use the Marketing Materials to sell, market, advertise, distribute, operate, and/or otherwise use the Goods. Buyer acknowledges and agrees that it has no right to alter, modify, adapt, edit, enhance or change the Marketing Materials in any manner without the express written consent of FDTC. Except as stated herein, Buyer acknowledges that it has no right, title, or interest in or to the Marketing Materials.
INTELLECTUAL PROPERTY; OWNERSHIP. FDTC Intellectual Property is all intellectual property owned or licensed by FDTC, including, without limitation, any intellectual property embodied in the FIT Bodywrap® system, all copyrights, trademarks, service marks, and patents owned by FDTC, the Marketing Materials, and any other mark, design, or symbol designated by FDTC to be used in conjunction with FDTC products from time to time. The Parties acknowledge and agree that (i) the FDTC Intellectual Property is the property of FDTC, and that as between FDTC and Buyer, all right, title, and interest in and to the FDTC Intellectual Property is owned by, belongs to, and remains with FDTC; (ii) Buyer shall not and shall not permit any third party to register, modify, translate, or create derivative works based upon FDTC Intellectual Property, (iii) Buyer shall execute and deliver such documents as FDTC may reasonably request to enable FDTC to register and perfect any rights in the FDTC Intellectual Property it owns and any improvements thereto, and (iv) Buyer shall be responsible for and shall take appropriate steps to ensure compliance by its employees and agents with respect to Buyer’s obligations under these Terms and Conditions. FDTC represents and warrants that it owns or otherwise has legal rights to all trademarks, copyrights, patents, and other proprietary rights in and to the FDTC Intellectual Property.
LICENSE TO USE INTELLECTUAL PROPERTY. FDTC hereby grants Buyer, its affiliates, and their respective customers a nonexclusive, non-transferable, non-royalty bearing license to the FDTC Intellectual Property to the extent necessary to sell, market, advertise, distribute, operate, and otherwise use the Goods.
INDEMNIFICATION BY FDTC. To the fullest extent permitted by law, FDTC shall defend, indemnify, and hold harmless Buyer and its respective directors, officers, employees, parents, subsidiaries, affiliates, agents, successors, and assigns, as well as their respective customers, resellers, distributors and licensees (collectively, the Buyer Indemnified Parties), from and against all third party suits and claims, and all injuries, liabilities, losses, damages, judgments, settlements, expenses, and costs (including, without limitation, reasonable attorneys’ fees) that result or are alleged to result from such suits and claims (collectively, Claims) arising directly or indirectly out of (a) any actual or potential product recall(s) or investigations by any regulatory agency, (b) any conduct or actions by FDTC which are, or are alleged to be, illegal, negligent, or tortious or any breach of any representation or warranty of FDTC contained herein, (c) any claim that these Terms and Conditions and/or sale of the Goods to Buyer violates any agreement, arrangement, and/or understanding between the claiming party, on the one hand, and FDTC or its affiliates, on the other hand; (d) any claims for damage to property, injury to person(s), or death related to the Goods, whether based on negligence or defect in design or manufacture, or (e) any other claim or allegation by a third party for infringement or violation of any patent, copyright, trademark, trade name, trade dress, or any other intellectual or proprietary property right of any third party, which damage, injury, infringement, or violation is alleged to be caused by, related to, or resulted from the Goods supplied by FDTC to Buyer and/or the Buyer Indemnified Parties. Notwithstanding the foregoing, FDTC will have no obligation under this Paragraph with respect to any infringement claim based upon (x) unauthorized use or distribution of the Goods by Buyer or its customers, (y) any use of the Goods by Buyer or its customers in combination with other products, equipment, component, or software not supplied by FDTC if such combination is the basis of the infringement claim and the combination was not reasonably anticipated or foreseeable by FDTC; or (z) any modification of the Goods by any other person without FDTC’s prior written consent.
INDEMNIFICATION BY BUYER. To the fullest extent permitted by law, Buyer shall defend, indemnify, and hold harmless FDTC and its respective directors, officers, employees, parents, subsidiaries, affiliates, agents, successors, and assigns as well as their respective customers, resellers, distributors and licensees (collectively, the FDTC Indemnified Parties) from and against any and all claims, demands, subrogation claims by third parties (including Buyer’s insurers), causes of action, controversy, liabilities, fines, regulatory actions, seizures of Goods, losses, costs and expenses (Including, but not limited to attorneys’ fees, expert witness expenses, and litigation expenses) (Collectively, Claims) arising, directly or indirectly out of (a) any conduct or actions by Buyer which are, or alleged to be, illegal, negligent, or tortious or any breach of any representation or warranty of Buyer contained herein, (b) any actions or omissions, whether based on negligence or any other theory or cause, of Buyer or its employees or agents in connection with marketing, promoting, advertising, using, or selling the Goods, or (c) in connection with any Claim asserted by a third party against FDTC for any damage, environmental liability, patent, or intellectual property infringement caused by Buyer’s use, modification, or alteration of the Goods. Notwithstanding the foregoing, Buyer has no indemnity obligation to FDTC to the extent that any Claims result from the gross negligence of FDTC. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer’s contribution liability to FDTC, and any and all statutory or common law lien rights or Claims against FDTC arising from any applicable workers compensation or disability acts, which Buyer might or could assert against FDTC or FDTC’s insurers in the event of the personal injury or death of Buyer’s employees, representatives, or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, Claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives, or servants.
RELATIONSHIP. The relationship between FDTC and Buyer shall be that of independent contractors and neither Party, its agents, and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents, or representatives of the other Party. Buyer acknowledges and agrees that it shall not represent itself as the agent or legal representative of FDTC. Buyer acknowledges and agrees that Buyer and its employees, contractors, subcontractors, and agents have no right or authority to and shall not make any representation, warranty, or commitment purporting to be binding or binding upon FDTC. Buyer acknowledges and agrees that under no circumstance is Buyer permitted to represent or discuss FDTC, or its Goods, to any members of the media unless expressly authorized to do so in advance by FDTC.
FORCE MAJEURE. FDTC will not be liable for delays in performance or for non-performance due to unforeseen circumstances or causes beyond the Seller’s reasonable control.
GOVERNING LAW. These Terms and Conditions and all claims and causes of action shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of California. The sole and exclusive venue for all claims and causes of action between the Parties shall be the state or federal court located in San Diego County, California.
ATTORNEY FEE PROVISION. In any litigation, arbitration, or other proceeding by which one Party either seeks to enforce its rights under these Terms and Conditions or seeks a declaration of any rights or obligations under these Terms and Conditions, the prevailing Party shall be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
ASSIGNMENT; SUCCESSORS. The rights and obligations of Buyer under these Terms and Conditions shall not be assignable without the prior written consent of FDTC. These Terms and Conditions shall be binding upon and inure to the benefit of the successors of the Parties hereto.
WAIVERS. The failure of a Party to enforce the provisions of these Terms and Conditions shall not be construed as a waiver of any provision or the right of such Party thereafter to enforce each and every provision of these Terms and Conditions.
EFFECTIVENESS; DATE. These Terms and Conditions will become effective upon the date of Buyer’s purchase of the FIT
Bodywrap® system and govern future system purchases made by buyer.
PRIVACY NOTICE: FDTC recognizes that you value your privacy and the confidentiality of your business and personal financial information. As such, we have established the following policy to explain how we collect, use, and protect that information.
Information We Collect
We collect nonpublic personal information about you and your business from the following sources in order to administer our business and to provide you with products and services:
Information We Disclose
We may disclose your name and address only to companies that perform marketing services on our behalf (such as sending out mailings for us). Otherwise, we do not disclose nonpublic personal information about our customers or former customers to anyone, except as permitted by law.
We restrict access to nonpublic personal information about our customers to our employees who have a need to know such information. We train our employees on the importance of customer privacy and confidentiality. We also maintain physical, electronic, and procedural safeguards that comply with federal standards to guard the nonpublic personal information of our customers.