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COMMERCIAL TERMS AND CONDITIONS OF SALE

GENERAL TERMS AND CONDITIONS OF SALE LIFE FITNESS (ATLANTIC) BV

 

1.     General provisions

1.1. The following terms in these general terms and conditions are understood to mean:

a. Life Fitness: Life Fitness (Atlantic) BV, a private company with limited liability established in Rotterdam and having its registered office at the address of (2992 LB) Bijdorpplein 25-31 in Barendrecht, registered with the Chamber of Commerce under number 24254910;

b. Customer: every natural or legal person or company to whom an offer is made or with whom an agreement is concluded by Life Fitness;

c. Third party(ies): every party that is involved in the realisation of the agreement, not being Life Fitness (Atlantic) BV or Customer. A third party(ies) is also understood to mean any (legal) persons and entities affiliated with Life Fitness (Atlantic) BV, whether or not it/they belong to the firm of which Life Fitness (Atlantic) BV is a part;

d. Brands of Life Fitness: the products branded by Life Fitness, Cybex, Indoor Cycling Group (ICG) or Hammer Strength, which we are to supply to you in accordance with this agreement as confirmed on our order confirmation.

e. Subscription Services: the products and services that are ordered by Customer online through a link or via an order confirmation referencing Life Fitness’ Subscription Agreement, whether on a trial or paid basis, and made available online by Life Fitness, via the applicable subscriber login link and other web pages designated by Life Fitness.

1.2. These general terms and conditions apply to all offers from and agreements with Life Fitness.

1.3. Any deviations to these general terms and conditions only apply if these have been explicitly confirmed with Customer by Life Fitness in writing.

1.4. In the event of a contradiction between a provision in these general terms and conditions and a provision in the agreement concluded with Life Fitness, then that stated in the agreement will prevail.

1.5. Any reference on the part of Customer to conditions other than these general terms and conditions will have no effect. The applicability of any other terms and conditions is explicitly rejected.

1.6. In the event that a provision in these general terms and conditions is void or annulled, all of the other provisions of these general terms and conditions will remain in full force.

 

2.     Offers

2.1. An offer is understood to mean any quotation on the part of Life Fitness.

2.2. Any offer is free of obligation and becomes void two months after its date, unless otherwise specified in the offer concerned.

2.3. Concerning any particulars provided in an offer, Customer is to take into account the usual tolerances and (minor) changes and adjustments, insofar as these are necessary for the purpose of adequately realising the agreement.

2.4. Insofar as drawings, samples, specimens, models and so on are provided by Life Fitness prior to or when proposing an offer, these serve to illustrate only and no rights can be derived from these products.

2.5. All of the drawings, samples, specimens, models and so on provided by Life Fitness for the benefit of Customer are to be immediately returned to Life Fitness upon request.

 

3.     Formation of the agreement

3.1. Life Fitness is to draw up an order confirmation following the written acceptance of Customer of the offer.

3.2. The order confirmation as drawn up by Life Fitness and signed by Customer is deemed effected and represents the contents of the agreement completely and correctly.

 

4.     Change to the agreement

4.1. Any desired changes the agreement are to be timely communicated by Customer to Life Fitness in writing. Any risk of changes communicated verbally is at the expense of Customer.

4.2. Life Fitness is only bound by changes if and insofar as it has explicitly confirmed the changes with Customer in writing. Changes to the agreement may result in a change to the prices and time periods agreed upon.

4.3. Changes to the agreement that result in less being purchased than originally agreed upon will entail a premature termination of that part of the agreement. That stated in article 15.3 of these general terms and conditions applies in that case.

 

5.     Prices

5.1. All of the prices are in U.S. Dollars, excluding VAT, postage, costs of transport and installation and are based on the cost factors that applied at the time that the agreement was concluded.

5.2. Life Fitness is at all times entitled to change its prices as a result of a change in the agreement, an increase in cost factors and/or changing market circumstances, a correction for inflation or further to an obligation on the part of Life Fitness by virtue of the law.

 

6.     Payment

6.1. The purchase price is owed in full as soon as the agreement is effected.

6.2. Payment is to take place in a lump sum and prior to the delivery.

6.3. Payment will take place in instalments, in which the first instalment will amount to at least 50% of the purchase price, only if this has been laid down in the agreement. The first instalment is to be paid prior to delivery. The last instalment is to be paid following the delivery.

6.4. Payments will in any case take place without any discount or settlement.

6.5. The term of payment is eight days. Life Fitness may opt to observe a shorter term of payment if such is necessary in view of the scheduled delivery.

6.6. In the event of an overdue payment, Life Fitness is authorised to immediately suspend the delivery, without being liable for damages. Any additional costs further to the suspension will be at the expense of Customer.

6.7. In the event of an overdue payment, Customer will owe statutory commercial interest within the meaning of article 6:119a of the Civil Code, without further notice of default, as well as compensation for the collection costs within the meaning of article 6:96, section 2 paragraph c of the Civil Code, with a minimum of € 40.

6.8. In the event of non-payment and/or repeated financial difficulties on the part of Customer, Life Fitness is authorised to completely or partially terminate the agreement and to reclaim any products already delivered but not yet paid, without being liable for damages and without prejudice to the other rights of Life Fitness. Any costs resulting from the termination will be at the expense of Customer.

 

7.     Security

7.1. Life Fitness is at all times authorised to require security prior to the realisation of the agreement.

7.2. Customer is obligated to furnish adequate security for the fulfilment of its obligations on first demand of Life Fitness.

7.3. The security offered by Customer must be such that all of the receivables of Life Fitness and the corresponding interest and costs are duly covered. The security offered is to furthermore be such that Life Fitness can easily recover costs.

7.4. In the event that Customer fails to comply with the obligations further to this article, then Life Fitness is authorised to completely or partially terminate the agreement and to reclaim the products already delivered but not yet paid, without being liable for damages and without prejudice to the other rights of Life Fitness. Any costs resulting from the termination will be at the expense of Customer.

 

8.     Retention of title

8.1. The ownership of the products delivered is retained by Life Fitness for as long as the payment obligations have not been completely met by Customer, which is also understood to mean the payment of costs, interests and compensation for damages due to non-compliance on the part of Customer.

8.2. As long as the ownership has not been transferred, Customer will refrain from alienating the products, letting these out, granting in use or removing the products from its company, pledging these or encumbering these in any other way.

8.3. Customer is obligated on first demand of Life Fitness to make the products available to Life Fitness and to lend its cooperation to returning the products to Life Fitness or to persons as indicated by Life Fitness.

8.4. Customer grants Life Fitness, or persons to be designated by Life Fitness, the irrevocable authority to enter the location where the products can be found for the purpose of reclaiming the products.

 

9.      Right of retention

9.1. In the event that Life Fitness has products in its possession that belong to Customer, then Life Fitness will be entitled to suspend the surrender of these for as long as it has not yet received the payments owed by Customer.

 

10.  Realisation of the agreement

10.1. The realisation of the agreements commences after the agreement has been effected.

10.2.    In realising the agreement, Life Fitness may opt to make use of the products/services of third parties. The costs involved will be at the expense of Customer. A delay in the realisation of the agreement as a result of a delay in the supply of products and/or services of third parties is not at the expense and risk of Life Fitness. Life Fitness is not liable for any defects or shortcomings in the products and/or services of third parties.

10.3.    The realisation of the agreement depends upon the information and data to be supplied by Customer. It is the responsibility of Customer to ensure the accuracy, completeness and consistency of the information and data provided. Life Fitness is not liable for any errors or damages resulting from the data provided by Customer.

10.4. In the event that Life Fitness ascertains inaccuracies, incompleteness or inconsistencies in the information and data supplied by Customer in the course of realising the agreement, then it will inform Customer accordingly and will suspend the realisation until Customer has corrected the errors found. Life Fitness will not examine the information and data provided by Customer for errors..

10.5.    Customer is obligated to:

a. provide all of the relevant, necessary and desired information and data relating to this matter;

b. grant Life Fitness, or third parties called in by or on behalf of Life Fitness, access to all locations and spaces insofar as such is necessary for the realisation of the agreement;

c.  lend its cooperation and to make every necessary effort to enable Life Fitness and the third parties referred to to realise the agreement.

10.6. Any delay in the realisation of the agreement as a result of non-compliance or the non-timely compliance with the obligations as referred to above are entirely at the expense and risk of Customer.

10.7.    The time periods as specified by Life Fitness with respect to the realisation of the agreement, including the delivery terms, are determined as accurately as possible, but are not under any circumstances considered deadlines.

10.8.    If the realisation of the agreement is to take place in parts or stages, then Life Fitness has the right to suspend a subsequent part or stage until the previous part or stage has been accepted and paid by Customer. Any additional costs further to the suspension will be at the expense of Customer.

 

11.  Delivery, transport and installation

11.1.    Delivery is to take place by means of delivering the products to the address as specified on the order confirmation on working days during office hours. Customer is obligated to accept the products at the location agreed upon and at the time that these are offered at the location.

11.2.    A third party that is to be called in by Life Fitness will see to the transport and installation. The costs involved are at the expense of Customer.

11.3.   Customer will ensure that the delivery location meets the following criteria:

a. the space is reachable and well accessible;

b. the space can be properly secured;

c. the floor is clean and level;

d. the space has electricity, lighting, heating, water and sufficient ventilation.

11.4.    In the event that the space does not meet the criteria as described above, then Customer will inform Life Fitness accordingly as soon as possible, yet not later than fourteen days prior to the delivery.

11.5.    In the event that circumstances render the use of a lift, hoist, crane or other aids necessary, then Customer is to inform Life Fitness accordingly as soon as possible, yet not later than fourteen days prior to delivery. The costs involved in using such aids are at the expense of Customer.

11.6.    In the event that the delivery cannot take place as a result of non-compliance with the criteria laid down in this article, Customer delays the delivery date or fails to accept delivery of the products, then Life Fitness will keep the products in storage for a period of a maximum of thirty days. The storage costs plus the additional costs of insurance, transport and re-arranging the delivery of the products will be at the expense of Customer. If the delivery cannot be made after this period has passed, then Life Fitness will be authorised to terminate the agreement, either completely or partially, and to reclaim the products already delivered but not yet paid, without being liable for damages and without prejudice to the other rights of Life Fitness. Any costs resulting from the termination will be at the expense of Customer.

 

12.  Transfer of the risk

12.1.    The risk is transferred at the time of delivery or as soon as the products are placed under the control of Customer.

12.2. In the event that the delivery cannot take place as a result of the non-compliance of Customer with the conditions as described in article 11, then the risk will be transferred at the time that the delivery would have taken place had Customer complied with the conditions. The confirmation of the delivery date is decisive in this respect.

 

13.  Inspection

13.1.    Customer obligated to inspect the products following their installation and to record any defects found on the delivery note. If the delivery takes place without the subsequent installation, then Customer is to state this on the delivery note. Customer is in either case obligated to inspect Life Fitness for defects within two working days after receiving the products and to provide Life Fitness within this term with an adequate description in writing of any defects found. Once this term has lapsed, the products will be deemed to have been delivered in accordance with the specifications of the agreement.

13.2.    In the event that Life Fitness finds a defect to be valid, then Life Fitness may at its discretion:

a. revise the invoice and alter the invoice amount accordingly;

b. replace the item supplied with an item that has the same specifications or repair the item, in which the replaced products or parts are to be returned to Life Fitness;

c. take back the item(s) supplied and to (partially) dissolve the agreement, such subject to the repayment of the invoice amount paid by Customer and without being liable for any damages.

13.3.    As the occasion arises, Customer is to immediately give Life Fitness, or the third parties engaged by Life Fitness, every opportunity and lend its cooperation towards correcting any defects.

13.4.    A shortcoming, such as documentation not being (completely) available as promised, that does not severely hinder the use of the item supplied, is not considered a defect within the meaning of this article.

13.5.    Any changes made by Customer to the products are at the expense and risk of Customer. Life Fitness is not responsible nor liable for any defects or damages that may result from such changes.

 

14.  Warranty

14.1.    Any Warranty offered by Life Fitness solely concerns products of the brands of Life Fitness.

14.2.    Different specific Warranty periods apply to the products of the brands of Life Fitness and commences at the time of delivery. The delivery note is decisive in this respect.

14.3.    Any claims under a Warranty are to be made known to Life Fitness in writing in the form of an adequate description immediately upon ascertaining a defect and not later than within one week after the discovery. Customer is obligated to take any necessary measures in order to prevent any damages as a result of or relating to the defect ascertained.

14.4.    If Life Fitness finds a claim under the Warranty to be valid, then Life Fitness has the right to replace or to repair the product or part of the product, at its sole discretion, in which the replaced products or parts are to be returned to Life Fitness.

14.5.    As the occasion arises, Customer is to immediately give Life Fitness, or the third parties engaged by Life Fitness, every opportunity and lend its cooperation towards correcting any defects.

14.6.    No Warranty is issued or extended for a repaired or replaced part.

14.7.    A claim under the Warranty is not possible if:

a. there are defects or damages as a result of fire, explosion, flooding, characteristics of the building such as power failure, failure to provide a power supply, weather conditions, natural disaster, water exposure, corrosion, discoloration of paint or plastic, rust, adverse environmental conditions, abuse, misuse, vandalism, neglect or human violence and so on;

b. it is a matter of customary wear and tear;

c. the improper or negligent use of the products or parts;

d. safety regulations have not been observed;

e. the product or part has not been used or stored in the customary fashion and/or in the way as described in the directions for use;

f. the product or part is used with inappropriate or the wrong accessories, or does not meet manufacturer’s specifications;

g. changes have been made to the products or parts, which is also understood to mean modifications, alterations, maintenance or repair work that is not carried out by or on behalf of Life Fitness;

h. the industrial trademarks or brand names, or the type or identification numbers or signs, present on the products supplied by Life Fitness, have been removed, damaged or changed;

i. the products or parts have been handled without due care and attention in some other way; or

j. any other cause beyond Life Fitness’ direct control.

 

15.  Subscription Services

15.1. For any Subscription Services purchased pursuant to the order confirmation, Customer agrees (a) to be bound by the terms hereof and Life Fitness' Subscription Agreement found at https://www.lifefitness.com/en-us/legal/terms-conditions; and (b) the Subscription Term set forth in the order confirmation shall be non-cancelable from activation and will automatically renew for a Subscription Term equivalent in length to the then expiring Subscription Term at Life Fitness' then current Subscription charges. Either Life Fitness or Customer may elect to terminate any Subscription Services at the end of Customer's then current Subscription Term by providing notice in compliance with the Subscription Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term.

 

16.  Termination

16.1. The agreement ends once each party has met all of its obligations towards the other party.

16.2. The premature termination of the agreement on the part of Customer is only permissible with the consent of Life Fitness and only insofar as Customer compensates Life Fitness for damages. Compensation for damages is understood to mean the reimbursement of all costs incurred by Life Fitness within the scope of the agreement and payment of an amount equalling the part of the agreement that has already been realised by Life Fitness.

16.3. That stated in article 16.2 is applies by analogy if the termination provides for part of the agreement.

16.4. In the event that Customer is declared bankrupt, file for a (preliminary) moratorium on payments, and/or is dissolved or liquidated, then Life Fitness will have the right to terminate the agreement, effective immediately, without observing a term of notice and without being obligated to compensate for any damages. Any claim that Life Fitness has or acquires towards Customer is then due and payable without any notice of default being required.

 

17.  Circumstances beyond one's control

17.1. Non-compliance on the part of Life Fitness with respect to any obligation pursuant to the agreement as a result of, directly or indirectly:

a. calamities; theft, fire, flooding, power failure, natural disaster, unavoidable casualties, concealed conditions, human violence, riot, insurrection, civil disturbances war, invasion, act of foreign enemies, hostilities (regardless of whether or not war is declared), rebellion, revolution, terrorist activities, pandemic or epidemic, diseases, quarantines, strikes, lockouts or other labor disputes;

b. government measures whether in the Netherlands or elsewhere, import and export restrictions, quota schemes, embargoes; laws, statutes, regulations, and other legal requirements, orders or judgments; acts or order of any government or agency or official thereof;

c.  shortage or unavailability of labor, supplies, materials, equipment or systems; transportation contingencies;

d. acts or omissions on the part of manufacturers and/or suppliers, transport companies and/or installer and faults in auxiliary materials or means of transport; and

e. other catastrophes, disruptions, or similar occurrences that cannot reasonably be insured by Life Fitness; qualify as circumstances beyond one's control within the meaning of article 6:75 of the Civil Code. Life Fitness is not liable for any damages as a result of the above.

17.2. Customer cannot demand compliance for as long as the circumstances beyond the control of Life Fitness continue.

17.3. In the event of circumstances beyond its control, Life Fitness will at all times be entitled to end the agreement, either partially or entirely, and/or to alter the agreement such that the realisation of (part of) the agreement remains possible, without being liable for damages.

17.4. If the circumstances beyond the control of Life Fitness continues for a period longer than six months, then the agreement can be terminated by Customer without Customer being entitled to compensation for damages.

17.5. Customer will in any case remain obligated to pay all of the costs incurred by Life Fitness within the scope of the agreement and to pay an amount equalling the part of the agreement that has already been realised by Life Fitness prior to the force majeure having occurred.

 

18. Liability

18.1. Life Fitness is not liable for damages unless these are the result of intent or deliberate recklessness of persons that make up the board or the management of Life Fitness.

18.2. Damages as a result of acts or omissions on the part of Customer and third parties, including but not limited to transport companies, installers and/or servicemen are explicitly excluded.

18.3. Damages as a result of changes implemented in the products or parts thereof, or the inappropriate or negligent use of the products or parts are explicitly excluded.

18.4. The damages to be compensated for by Life Fitness will in any case be limited to the payment of the reasonable costs within the meaning of article 6:96, section 2 of the Civil Code and only insofar as these are directly related to the incident that the liability concerns. Life Fitness will not under any circumstances be obligated to compensate for losses suffered or a loss of profit. Compensation for consequential loss is excluded.

18.5. The amount in damages to be paid by Life Fitness will not in any case exceed the maximum that is paid out under its liability insurance should the occasion arise or, if no payment is made or if the case in hand is not insured, the amount that Customer owes on the basis of the agreement. The maximum amount of damages is in any case fixed at € 5,000.

 

19. Safety measures

19.1. It is the responsibility of Customer to take all of the necessary safety measures in order to warrant the safety of third parties in relation to the use of the products supplied, irrespective of whether Customer is obligated to do so by law or on the basis of the agreement.

19.2. If, in the course of time, new technologies, insights or other circumstances render a higher safety level desirable or necessary, then Customer is to take all of the necessary measures in this respect in order to Warranty the safety of third parties in relation to the use of the products supplied.

19.3. Life Fitness is not liable for damages that result from Customer failing to take necessary safety measures or failing to see to the implementation of adjustments. Customer indemnifies Life Fitness with respect to any damages or claims on the part of third parties.

 

20. Indemnification

20.1. Life Fitness is not responsible for the use of the products supplied and is not liable for any damages that may result from the use.

20.2. Customer indemnifies Life Fitness against any damages or liability relating to the use of the products supplied, including any damages and liability as a result of incompetent or improper use on the part of Customer or third parties, including the users of the products supplied.

20.3. It is the responsibility of Customer to comply with the conditions that apply to the use of the products supplied.

20.4.Customer indemnifies Life Fitness against any damages or liability resulting from the non-compliance referred to above.

 

21. Intellectual property rights

21.1. All of the intellectual property rights with respect to the products belong to Life Fitness, or to one of the entities of the firm of which Life Fitness is part, unless it concerns products from some other manufacturer or supplier.

21.2. Customer will refrain from any actions that violate the intellectual property rights to the products.

21.3. Customer will not remove any indications of intellectual property rights to the products, documents, files, software and so on, or any copies of these. The indications referred to above are to be shown on copies in the same manner as shown on the original.

21.4. Life Fitness has the right to take all measures necessary in order to protect the rights referred to in this article.

 

22. Contract takeover

22.1. Life Fitness is authorised to transfer its rights and obligations pursuant to the agreement to a third party. Customer lends its cooperation to a transfer of this kind in advance.

 

23.Applicable law and settlement of disputes

23.1.All of the offers made and agreements concluded by Life Fitness are solely subject to Dutch law. The applicability of the Vienna Sales Convention is excluded.

23.2. Any and all disputes, irrespective of their nature, relating to or resulting from offers made by and agreements concluded by Life Fitness are to be referred to the competent court in Rotterdam, Netherlands.

 

 

Valid as of March 26, 2021