GENERAL TERMS AND CONDITIONS

1. Condition of Equipment.

  As part of the Preventative Maintenance Agreement, an AFP technician shall inspect the Equipment at no charge to Customer in order for AFP to determine whether repairs are necessary in order to bring the Equipment into good operating condition suitable for coverage under this Agreement.  The Customer shall pay for all labor, parts and materials for any such repairs and adjustments, agreed to by customer. AFP will provide Customer with an itemized statement of necessary repairs for Customer’s approval prior to AFP performing any work.

2. Equipment.

  It is within AFP’s sole discretion to determine whether any item of exercise equipment located at Customer’s facility is suitable for coverage under this Agreement. AFP shall inform customer within 5 business days of the commencement date of this Agreement, which, if any, item of exercise equipment is not suitable for coverage under this agreement.

3. Preventative Maintenance.

  The Preventative Maintenance Agreement shall be for an initial one (1) year term.  Thereafter, the term shall automatically renew for additional one (year) periods as provided for below in section 11. An AFP factory-trained technician will perform services on the Equipment located at the Customer’s fitness facility during the mutually agreed upon scheduled times. AFP shall provide services between the hours of 8 am. and 5 p.m. Monday through Friday, excluding holidays. Customer will give AFP’s technicians access to the Customer’s fitness facility where the Preventative Maintenance is to be performed, subject to compliance with any reasonable security procedures (and applicable rules and procedures) which Customer requires. The On-Site Manager, or other authorized individual, shall notify the AFP technician at the time of his/her arrival of any problems that the Customer or participants have experienced with the Equipment. The On-Site Manager or other authorized individual of Customer shall sign invoices (or other documentation as deemed appropriate by AFP) at the time AFP performs such repairs indicating that he/she has inspected the equipment serviced and that it is in good operating condition and that Customer agrees to pay for all needed replacement parts and materials not covered by the Preventative Maintenance Agreement.

If any worn or damaged part is covered by a manufacturer’s warranty, then AFP shall replace such worn or damaged part and invoice the cost of the replacement part and any associated service repair charges, in accordance with the rates set forth in this Agreement or as amended in the future, to such manufacturer warranting coverage of the Equipment. In the event such manufacturer does not pay AFP the full amount due and owing for such repair work, then the Customer shall be responsible for the difference between amounts paid by such manufacturer to AFP, if any, and the actual amounts due and owing to AFP for such repair.

AFP shall maintain a stock of replacement parts that in its judgment is appropriate to provide reasonable Preventative Maintenance of the Equipment. AFP shall use original equipment manufacturer (“OEM”) replacement parts or parts of equal quality in performing Preventative Maintenance and repairs.

4. Preventative Maintenance Agreement Fees and Payment.

  Customer shall pay the Preventative Maintenance Agreement fees and any other amounts due and owing upon receipt of a valid invoice from AFP. Any amounts not paid when due may be subject to a service charge of at 1.5% per month.  In the event AFP engages a collection agency or other entity to collect amounts due and owing from Customer to AFP, then Customer shall bear all reasonable expenses resulting from such collection agency or entity including, but not limited to, attorney fees and court costs plus any applicable interest.

5. Repairs Not Covered By Preventative Maintenance.

Unscheduled maintenance service calls requested by Customer and any repairs not covered by the Preventative Maintenance Agreement (referred to collectively as “Requested Repair Services”) will be billed separately at AFP’s then-current rates, which are attached, and other such rates or travel expenses in addition to the cost of replacement parts, freight or duties.  These rates may increase with 30 days notice and customer should request a quote as to rates if desired before requesting AFP’s assistance.

6. Warranty and Remedies.

a. AFP shall perform Preventative Maintenance and Requested Repair Services in a professional manner conforming to generally accepted industry standards. Customer must report any problems, defects and/or deficiencies in the Preventative Maintenance and the Requested Repair Services to AFP within five (5) calendar days of performance of the Preventative Maintenance or the Requested Repair Services.  In the event AFP receives such notice from Customer, then AFP shall re-perform the Preventative Maintenance or the Requested Repair Services.

b. The only warranties applicable with respect to any part or accessory provided here under is the manufacturer’s original warranty.  Warranties must be in writing and Customer is encouraged to review applicable State and Federal law with regard to warranty protection. All warranties for any parts or accessories provided hereunder by AFP are hereby assigned to customer)

c. Other than the warranty set forth above in Section 6(a), AFP makes no other warranties or representations, express or implied, by operation of law or otherwise, with respect to any Preventative Maintenance, any Requested Repair Services, or any other repairs or services performed by AFP or to any part or accessory provided hereunder.

d. The duty to re-perform Requested Repair Services for covered items represents AFP’s sole obligation and is Customer’s sole and exclusive remedy for breach of the warranty set forth above.

7. Limitation on Liability.

In no event shall AFP, it’s officers, directors, employees and agents be liable for any incidental, consequential, punitive or special damages, lost profits or any other indirect damages, even if AFP, it’s officers, directors, employees and agents have been advised of the possibility of such damages, AFP’s cumulative liability under this agreement shall be limited to the amount of preventative maintenance fees and requested repair services fees paid by customer to AFP hereunder.

8. Indemnification.

Customer agrees to indemnify, defend and hold AFP harmless from and against any and all actions or proceedings, all claims, losses, damages, liabilities, and expenses (including attorneys’ fees and costs), arising out of or in connection with the condition or use by any person of the Equipment or other equipment or services provided by the Customer, except to the extent that a personal injury or property damage was caused by or resulted from the negligent act or willful misconduct of AFP in the performance of its repair services hereunder.

9. Additional Customer Facilities.

If Customer desires to have AFP provide routine maintenance or Preventative Maintenance at any of its other locations, then Customer must contact AFP to obtain the appropriate service maintenance agreement for those additional locations.

10. Customer Reference.

Customer acknowledges and agrees that AFP may not disclose Customer’s name on AFP’s client lists and on other promotional materials, without the customer’s prior consent.

11. Term.

  The term of this Agreement will commence on the Effective Date and continue for a one (1) year period. Thereafter, this Agreement will automatically renew for successive one-year periods, provided that any changes in AFP’s pricing for the Preventative Maintenance Agreement (the “Pricing Change”) will need to be mutually agreed upon in writing prior to any renewal term becoming effective.  Either party may terminate this Agreement for any reason upon thirty days written notice to the other party.

12. Miscellaneous.

AFP and Customer are independent contractors. AFP and Customer will hold in strict confidence the terms of this Agreement and any other information provided by one party to the other under this Agreement and identified as confidential or defined herein as confidential information. All notices between the parties shall be in writing and shall be sent by personal delivery or certified or registered mail (return receipt) to the address on the Cover Page. The laws of the State of California, other than choice of law rules, will govern this Agreement. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the courts in Los Angels County, California.  If any provision of this Agreement is held to be illegal, unenforceable or void, then each other provision will remain in effect. No failure of either party to enforce any provision of this Agreement shall be construed as a waiver of that or any other provision. This Agreement sets forth the entire agreement between the parties on the subject matter hereof and supersedes all prior proposals, agreements and representations between them, whether written or oral, This Agreement supersedes any conflicting terms in any purchase order or other document submitted by Customer, whether or not formally rejected by AFP. This Agreement may be changed only in writing signed by both parties.