Terms and Conditions



These Terms and Conditions ("Terms") is entered into by and between Performance IQ Systems, LLC ("Company") and the Company as identified in the applicable Sales Order ("Customer").

 

  1. Sale of Equipment. Customer hereby agrees to purchase from Company the equipment (the "Equipment") or services (the “Services”) set forth in the Sales Order. Customer shall only install and use the Equipment at the Customer locations specified in Sales Order. Customer agrees and acknowledges that is prohibited from installing and/or using the Equipment at any other Customer location other than as specified in Sales Order.

 

  1. Payment Terms. The price and time for payment for the Equipment and Services as set forth in Sales Order. Failure to make timely payment is a material breach of these Terms, for which (in addition to other available remedies) Company may suspend performance these Terms until all past due amounts are brought current. Interest shall accrue on past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer will reimburse Company for reasonable costs (including attorneys’ fees) relating to collection of past due amounts. If, after Equipment delivery, Customer does not make any payments for the Equipment by the payment due date, Company may, upon ten (10) days prior written notice to Customer, either (a) enter upon Customer’s site and remove the Equipment or (b) temporarily disable the Equipment so that they are not operational. If Customer has a good faith dispute regarding payment for a particular Equipment (or subsystem thereof) or service, such dispute shall not entitle Customer to withhold payment for any other Equipment purchased from Company. To secure payment and performance of all Customer’s obligations hereunder, Company hereby retains title to Equipment and a security interest therein until payment in full and performance by Customer of all said obligations. When requested by Company, Customer shall duly acknowledge these Terms, and execute, acknowledge and deliver to Customer, in Company's usual form, a supplement hereto, security agreement, financing statement and other appropriate instruments to constitute Equipment as the unencumbered security for the obligations of Customer hereunder, or to enable Company to comply with all applicable filing or recording laws.

 

  1. Taxes, Tariffs, and Duties. All fees, expenses and other charges for the Services do not include any sales, use, excise, value added, importation, or other applicable taxes, tariffs or duties (“Taxes”). Customer is solely responsible for Taxes (excluding taxes based on Company's net income). Customer will reimburse Company for any Taxes paid by Company or, prior to payment, provide Company with valid tax exemption certificates. The parties will cooperate in making reasonable accommodations to the extent practicable to reduce taxes that may otherwise be due. Wherever applicable, such tax or taxes shall be added to the invoice as a separate charge on invoiced separately. Customer agrees to pay all personal property taxes that may be levied against Equipment after the date of delivery.

 

  1. Warranties. Except as indicated otherwise below, Company warrants for one (1) year from the Warranty Commencement Date (as defined below) that (i) the equipment will be free from defects in title, material and workmanship under normal use and service and (ii) except for equipment manufactured in compliance with Customer’s designs or specifications, the Equipment will perform substantially in accordance with the Company’s written technical specifications for the Equipment (as such specifications exist on the date the equipment is shipped) (the “Equipment Specifications”). This warranty covers both parts and labor. The warranty period begins (the “Warranty Commencement Date”) on the day following shipment to the Customer. The warranty period for any Equipment or component furnished to correct a warranty failure will be the unexpired term of the warranty applicable to the repaired or replaced Equipment. Company shall not have any obligation to Customer hereunder if the warranty claim results from or arises out of: (i) the use of the Equipment in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not recommended in writing by Company; (ii) the use of the Equipment in a manner or environment, or for any purpose, for which Company did not design, or in violation of Company’s recommendations or instructions on use; or (iii) any alteration, modification or enhancement of the Equipment by Customer or any third party not authorized or approved in writing by Company Company does not guarantee that any licensed software will operate without error or interruption.

     

    In addition, these warranties do not cover: (i) any defect or deficiency (including failure to conform to, in whole or in part, from any improper storage or handling, failure to maintain the Equipment in the manner described in any applicable instructions or specifications, inadequate back-up or virus protection or any cause external to the Equipment or beyond Company’s reasonable control, including, but not limited to, power failure and failure to keep Customer’s site clean and free of dust, sand and other particles or debris; or (ii) any adjustment, such as alignment, calibration, or other normal preventative maintenance required of Customer. Warranty claims must be made by Customer in writing within thirty (30) days of the manifestation of a problem. Company's sole obligation under the foregoing warranty is, at Company's option, to repair, replace or correct any such defect that was present at the time of delivery, or to remove the Equipment and to refund the purchase price to Customer. The "Warranty Period" begins on the date the Equipment is delivered and continues for twelve (12) months. Any repairs under this warranty must be conducted by an authorized Company service representative. Excluded from the warranty are problems due to accidents, misuse, misapplication, storage damage, negligence, or modification to the Equipment or its components. Company does not authorize any person or party to assume or create for it any other obligation or liability in connection with the Equipment except as set forth herein.

     

    The foregoing remedy is Customer’s sole and exclusive remedy (and Company’s sole and exclusive liability) for warranty claims. These exclusive remedies shall not have failed of their essential purpose (as that term is used in the Uniform Commercial Code) as long as Company remains willing to repair or replace defective warranted Equipment within a commercially reasonable time after being notified of Customer’s warranty claim. NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY, WILL APPLY. Company may use refurbished parts in new Equipment as long as it uses the same quality control procedures and warranties as for new Equipment. Any part for which Company has supplied a replacement shall become Company property.

 

  1. Software License. Company grants to Customer a non-exclusive, non-transferable license to use for internal business only the Company software, third-party software and associated documentation provided hereunder by Company to Customer, subject to the license scope and other restrictions set forth in these Terms. Customer may permit its employees, agents and independent contractors to use the software and associated documentation consistent with these Terms; provided, however, that Customer shall be responsible for any acts of its employees, agents and/or independent contractors which are inconsistent with these Terms. Without Company’s prior written consent, Customer may not: (i) copy, sublicense, distribute, rent, lease, loan, resell, modify or translate the software or create derivative works based thereon; (ii) directly or indirectly decompile, disassemble, reverse engineer or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the software; (iii) provide service bureau, time share or subscription services based on the software; or (iv) remove, obscure or modify any markings, labels or any notice of the proprietary rights, including copyright, patent and trademark notices of Company or its licensors. Customer may make one copy of the software solely for backup purposes. Company and its licensors, as applicable, retain all ownership and intellectual property rights to the software and documentation. If Customer acquires any rights to the software or documentation, Customer hereby assigns all of those rights to Company or its licensors, as applicable. No license rights are granted (whether by implied license or otherwise), to Customer, except as specifically provided in this section.

 

  1. Personal Data. “Personal Data” means any information relating to an identified or identifiable individual, including information pertaining to Customer’s personnel, directors and officers, agents, subcontractors, independent contractors, Customers and any other third parties. “Process” or “Processing” means any operation or set of operations performed upon Personal Data, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Data. Company or its affiliates may receive and Process Customer’s Personal Data in performing the Services and/or for further communications with Customer, such as inviting Customer to events and sending Company materials. Customer represents and warrants that (i) it has collected, Processed, and provided Customer’s Personal Data to Company in accordance with applicable laws, (ii) Customer will not instruct Company to Process Customer’s Personal Data in any way that will violate any applicable laws, and (iii) Customer will indemnify Company for breaches of the foregoing warranty. Customer, its affiliates, and/or subcontractors will remain the controller(s) of the Customer’s Personal Data.

 

  1. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS EMPLOYEES, OFFICERS AND DIRECTORS BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES (INCLUDING LOST PROFITS, LOST DATA, OR OPPORTUNITY COSTS), REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. COMPANY, ITS EMPLOYEES, OFFICERS AND DIRECTORS WILL NOT BE LIABLE TO THE OTHER PARTY FOR ANY ACTIONS, DAMAGES, CLAIMS, LIABILITIES, COSTS EXPENSES, OR LOSSES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR AN AGGREGATE AMOUNT IN EXCESS OF COST OF THE EQUIPMENT FORTH IN EXHIBIT A. NO PROVISION OF THESE TERMS WILL BE ENFORCABLE BY OR CREATE ANY RIGHT OR CAUSE OF ACTION FOR OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN CUSTOMER AND COMPANY. ANY ACTION BY CUSTOMER AGAINST COMPANY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION, EXCEPT THAT AN ACTION FOR NON-PAYMENT MAY BE BROUGHT BY A PARTY NOT LATER THAN ONE (1) YEAR FOLLOWING THE DATE OF THE LAST PAYMENT DUE TO THAT PARTY. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS YOU MAY NOT CONSOLIDATE CLAIMS IN ARBITRATION WITH OTHER CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

 

  1. Governing Law; Dispute Resolution. This Terms will be governed and construed under Illinois law without regard to its conflict of laws provisions. Any dispute, controversy or claim relating to these Terms (a "Dispute") brought by the Customer will be resolved first through good faith negotiations between the parties. If the parties are unable to resolve the Dispute, the Customer shall submit the Dispute to the office of the American Arbitration Association (“AAA”) in Chicago, Illinois for binding arbitration in accordance with the AAA’s Commercial Arbitration Rules then in effect, as amended by these Terms. The law applicable to the arbitration, including the administration and enforcement thereof, is the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended from time to time. The cost of the arbitration, including the fees and expenses of the arbitrator(s), will be shared equally by the parties, with each party paying its own attorneys’ fees. The arbitrator(s) will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under the express terms these Terms. The arbitration award will be presented to the parties in writing, and upon the request of either party, will include findings of fact and conclusions of law. The award may be confirmed and enforced in any court of competent jurisdiction. Any post-award proceedings will be governed by the Federal Arbitration Act. Nothing in this section shall preclude either party from seeking interim equitable relief in the form of a TRO or preliminary injunction. A request by a party of a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder. THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY. Any Disputes brought by the Company may, in the sole discretion of the Company, be filed in State or Federal court or be submitted to the office of the American Arbitration Association (“AAA”) in Chicago, Illinois for binding arbitration in accordance with the AAA’s Commercial Arbitration Rules then in effect, as amended by these Terms. If the Company elects to resolve any dispute through arbitration, Customer hereby agrees to consent to any such arbitration action brought by the Company.

 

  1. Termination. If the Customer breaches these Terms and the Company seeks to terminate on the basis of that breach, such other party shall notify the breaching party in writing, setting out the breach, and the breaching party will have 30 days following such notice to remedy the breach. If the Customer fails to remedy the breach during that period, the Company may, by written notice terminate these Terms. Customer represents that it is purchasing the Equipment for its own use consistent with the terms of these Terms and that it does not intend to re-sell the Equipment to any other party.

 

  1. Confidentiality. By virtue of these Terms, Customer may have access to information that is confidential to Company ("Confidential Information"). Confidential Information shall include, but not be limited to, the terms and pricing under these Terms, the technical and other specifications for the Equipment and all information clearly identified as confidential. Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of Customer; (b) was in the Customer's lawful possession prior to the disclosure and had not been obtained by Customer either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the Customer by a third party without restriction on disclosure; or (d) is independently developed by Customer. Customer agrees to hold Confidential Information in confidence during the term of these Terms and for a period of five (5) years after termination of these Terms. Customer agrees that unless required by law, it shall not make Confidential Information available in any form to any third party or to use Confidential Information for any purpose other than the implementation of these Terms. Customer agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, representatives or agents in violation of the terms of these Terms.

 

  1. Privacy. As used herein, (”Private Information”) means all private information disclosed by Customer to Company, whether electronically, orally, or in writing, that is designated as private or that reasonably should be understood to be private given the nature of the information and the circumstances of disclosure. Customer's Private Information shall include Customer's Data. However, Private Information (other than Customer's Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Customer, (ii) was known to Company prior to its disclosure by Customer without breach of any obligation owed to Customer, (iii) is received from a third party without breach of any obligation owed to Customer, or (iv) was independently developed by Company without reference to Customer's Private Information.

     

    Company: (i) shall use the same degree of care that Company uses to protect the privacy of it's own private information (but in no event less than reasonable care) not to disclose or use any of Customer's Private Information for any purpose outside the scope of this Agreement; and (ii) shall limit access to Customer's Private Information to those of Comapny's employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed privacy agreements with Company containing protections no less stringent than those herein.

     

    Company may disclose Customer's Private Information if Company is compelled by law to do so, provided that Company gives Customer prior notice of such compelled disclosure and reasonable assistance, at Customer's cost, if Customer wishes to contest the disclosure.

 

  1. Intellectual Property. Company is and shall be the sole and exclusive owner of all intellectual property rights in the Equipment, and any and all inventions, technology, know-how and other intellectual property made, conceived, created, reduced to practice or otherwise developed by the Company. Customer acknowledges that the Equipment contains the valuable intellectual property of the Company and other proprietary information of Company. Accordingly, Customer agrees that it will not, at any time during the term of these Terms or thereafter, reverse engineer or otherwise attempt to discern the intellectual property of the Equipment, nor will Customer permit any third party to do any of the foregoing.  

 

  1. Non-Solicitation; Non-Competition. Customer agrees that during the Term of these Terms and for a period of two (2) years from the date of the termination of these Terms (the “Restricted Period”) that (i) Customer will not, directly or indirectly, hire or attempt to hire any employee or personnel of the Company, or solicit or induce or assist in any manner any Company employee to leave her or her job for any reason whatsoever, without the prior written consent of the Company; and/or (ii) Customer will not, directly or indirectly, influence or attempt to influence any customer, client, supplier, service provider or other person with whom the Company has business dealings at any time during the Restricted Period (as defined below), to terminate or modify any written or oral agreement or course of dealing with the Company, nor take any other action which is intended or which could reasonably be expected to adversely impact the Company's relationship with its customers, clients, suppliers and service providers.

     

    Customer further agrees that during the Restricted Period and within the Restricted Area (as defined herein) that (i) Customer will not solicit business from, sell products or services to any Company Client, as defined herein, where the business, products or services relate to the development of, or consultation to any third party in the development of, any hardware or software used for the purpose of real-time display of group fitness performance metrics; (ii) Customer will not perform any Prohibited Activities, as defined herein, for any Company Client, whether Customer is acting individually or on behalf of any Competitor, as defined herein, without prior written consent of Company; and/or (iii) Customer will not undertake the planning of, organize or assist in the organization or formation of, or operate or promote any Competitor, without the prior written consent of Company.

     

    “Company Client” means any of the Company's current customers or clients at the time of the termination of these Terms, or any persons or entities for whom the Company has presented a proposal for the sale of goods or services to in the twelve (12) months prior to the termination of these Terms. “Competitor” means any enterprise, whether individual, corporate or otherwise, and whether for profit or not for profit, that derives or plans to derive, revenue from the development of, or consultation to any third party in the development of, any hardware or software used for the purpose of real-time display of group fitness performance metrics at the time of the termination of these Terms or during the twelve (12) month period prior to such date. “Prohibited Activities” means to engage in the development of, or consultation to any third party in the development of, any hardware or software used for the purpose of real-time display of group fitness performance metrics without Company’s prior written consent at the time of the termination of these Terms or during the twelve (12) month period prior to such date for any company, entity or other organization. “Restricted Area” means anywhere in the United States.

     

    The Customer agrees that the restrictions contained herein shall apply to any direct or indirect activities including those conducted through any Affiliate, or by the Customer as (a) an individual, (b) owner, partner, either limited or otherwise, or joint venture with any person, (c) employee, agent, representative, or Customer of any other person, (d) as an officer, director or shareholder of any corporation, (e) as a member or manager of any limited liability company or (f) lender. “Affiliate” means any business that Customer or any member of Customer's immediate family directly or indirectly controls or in which Customer or any member of Customer's immediate family has a significant interest. “Immediate Family” means Customer's spouse, sibling, parents, children, or any person who shares the same household with Customer and includes in-laws and adoptive relations or a trust for the benefit of any of foregoing.

 

  1. Compliance with Laws. Customer shall be responsible for operation of the Equipment. Customer shall operate the Equipment in a reasonably competent manner and in compliance with the operations manual for the Equipment. Customer shall comply with all applicable rules, laws, and regulations in connection with operation of the Equipment. Customer agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that the Equipment is not (1) exported, directly or indirectly, in violation of Export Laws; or (2) intended to be used for any purposes prohibited by the Export Laws. Customer agrees that the Equipment will only be used or operated in the United States and other territories approved in writing by Company.

 

  1. Severability; Waiver and Survival. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach. Sections 2, 4, 7, 8, and 12 shall survive the expiration or termination of these Terms.

 

  1. Independent Contractor. Company is an independent contractor; nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties.

 

  1. Force Majeure. Neither party is liable for delays or failures in performance (other than payment obligations) under these Terms due to a cause beyond its reasonable control. In the event of such delay, the time for performance shall be extended as reasonably necessary to enable performance.

 

  1. Assignment. Neither party may assign, transfer or delegate any of the rights or obligations under these Terms without the written consent of the other party, except that Company may (i) assign and/or subcontract all or a portion of these Terms to an affiliate or subsidiary without consent of Customer or (ii) assign its rights and obligations hereunder to any successor in interest to all or substantially all of the assets and business of Company, without the consent or approval of Customer.

 

  1. Contract Formation; Counterparts. Company’s Sales Order is subject to withdrawal at any time before acceptance. Customer accepts by signing and returning the Sales Order or by sending a purchase order in response to the Sales Order. Upon Customer’s acceptance, Company’s Sales Order and the related terms and conditions referred to in the Sales Order shall constitute the entire agreement relating to the Equipment and any services covered by the Sales Order. The parties agree that they have not relied on any oral or written terms, conditions, representations or warranties outside those expressly stated or incorporated by reference in these Terms in making their decisions to enter into these Terms. No agreement or understanding, oral or written, in any way purporting to modify these terms and conditions or the Sales Order, whether contained in Customer’s purchase order or shipping release forms, or elsewhere, shall be binding on Company unless hereafter made in writing and signed by Company’s authorized representative. Customer is hereby notified of Company’s objection to any terms inconsistent with this Sales Order and to any other terms proposed by Customer in accepting this Sales Order. Neither Company’s subsequent lack of objection to any such terms, nor the delivery of the Equipment or services, shall constitute an agreement by Company to any such terms. This Terms may be executed in any number of counterparts, all of which when taken together shall constitute one single agreement between the parties.

 

  1. Entire Agreement. Company’s Sales Order is subject to withdrawal at any time before acceptance. Customer accepts by signing and returning the Sales Order or by sending a purchase order in response to the Sales Order. Upon Customer’s acceptance, Company’s Sales Order and the related terms and conditions referred to in the Sales Order (as modified to the extent applicable by any strategic purchasing agreement Customer may have in effect at the time with Company) shall constitute the entire agreement relating to the Equipment and Services covered by the Sales Order.  The parties agree that they have not relied on any oral or written terms, conditions, representations or warranties outside those expressly stated or incorporated by reference in this agreement in making their decisions to enter into this agreement.   No agreement or understanding, oral or written, in any way purporting to modify these terms and conditions or the Sales Order, whether contained in Customer’s purchase order or shipping release forms, or elsewhere, shall be binding on Company unless hereafter made in writing and signed by Company’s authorized representative.  Customer is hereby notified of Company’s objection to any terms inconsistent with this Sales Order and to any other terms proposed by Customer in accepting this Sales Order.  Neither Company’s subsequent lack of objection to any such terms, nor the delivery of the Equipment or Services, shall constitute an agreement by Company to any such terms.