Thank you for your purchase (or anticipated purchase) of the PRO X® equipment. Below are the terms and conditions governing the sale and purchase of this equipment. If you signed an Equipment Purchase Agreement, and there is a conflict between that Agreement and the Terms and Conditions below, the Equipment Purchase Agreement will govern. Whether you complete Seller’s Hardcopy Purchase Order or Online Purchase Order (collectively “Purchase Order”), these Terms and Conditions govern to the extent not included in the Purchase Order. We expressly reserve the right to change these Terms and Conditions at any time. Such amendments will become effective immediately when the amended Terms and Conditions are published. The placing of further Purchase Orders shall signify your acceptance the latest Terms and Conditions and your agreement to be bound under them.

By making a purchase from the Innovative PRO X® website, you agree to these Sales Terms and Conditions. Please read these Terms carefully before using any of our online services that post a link to these Terms and Conditions, or making any purchase by telephone (collectively, the “Service”). By visiting or otherwise using the Service in any manner, you agree to the then posted Terms and Conditions any applicable Additional Terms (described above), to be bound by them, and that you have read and understood them.

These Terms and Conditions affect your legal rights, responsibilities and obligations and govern your use of the Service, are legally binding, limit Seller’s liability to you, and require you to indemnify Seller and to settle certain disputes through individual arbitration. If you do not wish to be bound by these Terms and Conditions and any Additional Terms, do not use the Service.

Quick Links

We have summarized some (but not all) of the main topics of these Terms and Conditions below. The complete provisions are fully set forth in the links that follow each summary, and those complete provisions, and not the headings or summaries, govern.

• Purchase and Sale of Equipment addresses payment terms. Read More
• Assignment or Resale prohibits the sale, transfer, assignment or other conveyance of the Equipment without Seller’s prior written consent. Read More
• Shipment and Delivery shall be at Purchaser’s expense. Read More
• Warranties provided by Seller are identified. Read More
• Non-Infringement addresses Seller’s representation and warrant that the Equipment and any portion thereof does not infringe on any patent, copyright, trademark or trade secret. Read More
• Indemnity outlines those conditions when Purchaser shall be required to defend, indemnify and hold harmless Seller. Read More
• Damages; Liability excludes both Seller and Purchaser from being held responsible for consequential, special, indirect or incidental damages. Read More
• Use of Equipment limits the Equipment’s use to Purchaser without Seller’s prior written consent. Read More
• Choice of Law provides that New Jersey law applies, excluding its conflicts of law principles. Read More

DEFINITIONS

As used herein, the terms below shall have the following definitions:

• (a) “Equipment” means the PRO X®, and supplies, materials, equipment, reports, documents, and other submittals and all other items that Seller is required to furnish.
• (b) “Price” means the price for the Equipment as set forth in Exhibit A attached to the Equipment Purchase Agreement and/or the Purchase Order..
• (c) “Seller” means Innovative Fitness, LLC., its related entities and affiliates, and their owners, directors, officers, managers, employees, agents, and licensors.
• (d) “Warranty Period” means the one year period beginning on the date the Equipment is delivered to Purchaser during which the Limited Warranty shall be in effect.
• (e) “Note” means any promissory note executed and delivered by Purchaser and to Seller in partial payment of the purchase price as hereinafter set forth.
• (f) “Financing Statement” means the financing statement filed in accordance with the provisions of the Security Agreement.
• (g) “Security Agreement” means the Security Agreement executed and delivered by Purchaser securing payment of the Note.

PURCHASE AND SALE OF EQUIPMENT

Purchaser hereby purchases from Seller and Seller hereby sells to Purchaser the Equipment. The purchase price for the Equipment delineated in the Equipment Purchase Agreement and/or the Purchase Order which shall be paid as follows:

• (a) Purchaser shall pay an initial payment in the sum as stated in the Equipment Purchase Agreement and/or the Purchaser Order to Seller upon the execution of and Equipment Purchase Agreement (THE NON-REFUNDABLE DEPOSIT); and
• (b) Purchaser shall pay subsequent payments each in the sum as stated in the Equipment Purchase Agreement and/or the Purchaser Order to Seller in the manner of the periodic payments stated therein; and
• (c) If asked by Seller, Purchaser shall deliver the Note to Seller.

Purchaser understands and agrees that it is solely purchasing the Equipment, and not acquiring any intellectual property rights, including but not limited to patent, copyright, trademark or trade secret rights.

Seller shall not ship the Equipment to Purchaser unless and until the initial payment for the same has been received as set forth above and all documents due from Purchaser to Seller pursuant to and including the Equipment Purchase Agreement have been executed and delivered to Seller.

Late payments shall incur interest charges at a rate of interest equal to a per annum rate of eighteen percent (18%) or the maximum allowed under applicable law, whichever is less. In any instance when any payment to Seller is declined by the issuing institution, Purchaser shall be assessed a charge of $45 or the maximum allowed under applicable law (whichever is less) per declined payment. Purchaser shall be liable for all costs incurred by Seller, including attorneys’ fees, for collections on accounts greater than thirty (30) calendar days past due.

The Equipment shall remain the property of Seller until paid for in full. In the event of nonpayment, Seller reserves the right to retrieve the Equipment subject to the terms herein.

ASSIGNMENT OR RESALE

Purchaser agrees that it has purchased the Equipment solely for its own use. Purchaser shall not sell, transfer, assign or otherwise convey the Equipment, or any interest therein, to any person, firm, company, corporation, trust, or other entity without the prior written consent of Seller, which consent may be withheld, deferred, or conditioned in the sole and absolute discretion of Seller.

SHIPMENT AND DELIVERY

Seller shall ship the Equipment to Purchaser, at Purchaser’s sole cost and expense, no later than date stated in the Equipment Purchase Agreement and/or the Purchase Order following Seller’s receipt of the initial payment in accordance with the provisions of the Equipment Purchase Agreement and the duly executed Note (if required), Security Agreement and Financing Statement (in recordable form).

WARRANTIES

• (a) During the Warranty Period, Seller warrants that the Equipment: (i) shall be new; (ii) shall be free from all latent and patent defects in design, material and workmanship; (iii) shall conform to the requirements of the Equipment Purchase Agreement; (iv) shall be fit for the purposes specified in the accompanying User’s Manual; and (v) shall be free of defects in title and that the title to the Equipment is marketable and clear and free of any liens other than such liens as may secure the Note (if required) pursuant to the Equipment Purchase Agreement or the Purchase Order.
• (b) If during the Warranty Period the Equipment fails to conform to the warranties set forth herein, the defective or nonconforming Equipment shall be repaired or replaced by and at the sole expense of Seller within a reasonable time after Seller: (a) receives written notice from Purchaser that the Equipment is defective or nonconforming; (b) receives the defective or nonconforming Equipment by Seller from Purchaser; and (c) reasonably determines that the Equipment is in fact defective or nonconforming. All costs incurred to return the defective or nonconforming Equipment to Seller shall be borne by Purchaser. All costs incurred to replace the defective or nonconforming Equipment shall be borne by Seller, including shipping the repaired Equipment or its replacement to Purchaser.

NON-INFRINGEMENT

Seller represents and warrants that neither the Equipment nor any portion thereof infringes any patent, copyright, trademark or trade secret and, upon reasonable notice from the Purchaser and with the Purchaser’s full cooperation in the defense of such claim to the contrary, Seller shall indemnify and hold Purchaser harmless from any and all costs and expenses resulting from any claims alleging infringement of same.

INDEMNITY

Purchaser agrees to defend, indemnify and hold harmless Seller from and against all losses, expenses, damages and costs, including attorneys’ fees, resulting from any violation of or deviation from the User’s Manual, the Equipment Purchase Agreement, and/or these Terms and Conditions, or Purchaser’s failure to fulfill any obligations relating to any other person using the Equipment that Purchaser controls. Seller reserves the right to take over the exclusive defense of any claim for which Seller is entitled to indemnification under these Terms and Conditions. In such event, Purchaser shall provide Seller with such cooperation as is reasonably requested by Seller.

Seller shall defend, indemnify, and hold harmless Purchaser against all claims and liabilities resulting from Seller’s negligence or breach of this Agreement and arising prior to the delivery of the Equipment to the relevant delivery point, except to the extent such claims and liabilities arise out of Purchaser’s negligence or breach of the Equipment Purchase Agreement or the Purchase Order. Purchaser shall assume full responsibility for any damages or losses relating to the delivery of the Equipment at and after its delivery to the relevant delivery point and shall defend, indemnify, and hold Seller harmless against all claims and liabilities arising at and after the delivery of the Equipment to the relevant delivery point, except to the extent such claims and liabilities arise out of Seller’s negligence or breach of the Equipment Purchase Agreement or the Purchase Order.

DAMAGES; LIABILITY

NOTWITHINSTANDING ANYTHING SET FORTH TO THE CONTRARY IN THESE TERMS AND CONDITIONS, NEITHER PURCHASER NOR SELLER SHALL BE LIABLE TO THE OTHER, WHETHER SUCH LIABILITY ARISES OUT OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER CAUSE OR FORM OF ACTION WHATSOEVER, FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF ANTICIPATED PROFITS, LOSS OF REVENUE OR LOSS OF USE OF THE PROJECT OR ANY OTHER SIMILAR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES AND COSTS.

NON-EXCLUSIVE REMEDY

All rights and remedies of either party set forth in these Terms and Conditions or existing at law or in equity shall be cumulative and may be exercised concurrently.

LIEN WAIVERS

Upon payment in full for the Equipment, and if and when required by Purchaser, Seller shall furnish partial and/or final lien waivers, affidavits, or other documents required to keep the Project and the Equipment free from liens or claims for liens.

TITLE AND RISK OF LOSS

Title to the Equipment shall pass to Purchaser upon Seller’s receipt of payment in full for same. Risk of Loss shall pass to Purchaser upon delivery.

NO RELATIONSHIP BETWEEN THE PARTIES

Nothing in the Purchase Order, the Equipment Purchase Agreement, Note (if required), Security Agreement Financing Statement (in recordable form), and these Terms and Conditions establish a joint venture, fiduciary relationship, partnership or other joint undertaking.

USE OF EQUIPMENT

Purchaser represents, warrants, and agrees that it has purchased the Equipment solely for its own use. Purchaser shall not suffer or permit the Equipment to be used by any person, firm, company, corporation, trust, or other entity without the prior written consent of Seller, which consent may be withheld, deferred, or conditioned in the sole and absolute discretion of Seller. Any use of the Equipment by a person, firm, company, corporation, trust, or other entity other than Purchaser without Seller’s prior written consent shall void all representations and warranties made by Seller set forth in the Equipment Purchase Agreement and the Purchase Order.

NO WAIVER

Neither party’s waiver of any breach or failure to enforce any of the terms, of these Terms and Conditions shall not in any way affect, limit, modify, waive or be deemed to affect, its rights thereafter to enforce or compel strict compliance with every term.

SEVERABILITY

The invalidity or unenforceability of any provision of these Terms and Conditions shall in no way affect the validity or enforceability of any other provision hereof.

NOTICES

Any notice given by a party to the other party shall be sent in writing and shall be: (i) hand delivered; (ii) sent by certified mail, return receipt requested; (iii) or sent by a recognized overnight mail or courier service, providing a receipt against delivery, in each case to the address specified for that purpose in the Equipment Purchase Agreement.

CHOICE OF LAW

These Terms and Conditions shall be governed by the laws of the State of New Jersey, excluding its conflicts of law principles.