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1. Acceptance of Orders: All orders are subject to acceptance by Octane Fitness, LLC (“Octane”). Acceptance of orders, whether oral or written, and the sale of goods by Octane are based on the express condition that Buyer agrees to these Terms and Conditions of Sale (“Terms and Conditions”). Acceptance of delivery by Buyer will constitute Buyer’s assent to these Terms and Conditions.
2. Entire Agreement: These Terms and Conditions, together with any order confirmation from Octane or written agreement or credit application that may have been signed by the parties, represent the complete agreement of the parties with respect to the goods sold by Octane to Buyer. This agreement supersedes all prior or contemporaneous agreements with respect to the subject matter hereof. No additional or different terms or conditions presented by Buyer (including those in a purchase order, shipping request or other communication containing printed terms from Buyer) in any way add to, modify or otherwise change the provisions stated herein. Such additional or different terms from Buyer are hereby expressly rejected by Octane and shall not be binding on Octane. These Terms and Conditions may be modified only in a writing that is signed by Buyer and an officer of Octane.
3. Prices: Unless otherwise agreed to by Octane and Buyer, prices are subject to change without notice, unless specified within an agreed upon quote. Unless otherwise agreed to, Buyer agrees to pay the prices in effect at the time of shipment.
4. Delays: Octane shall not be liable for default in delivery or delays in shipment for any cause beyond Octane’s reasonable control, including, but not limited to: (a) fires, floods, or other casualties; (b) wars, riots, civil commotion, embargoes, governmental regulations, or martial law; (c) Octane’s inability to obtain necessary material from its usual sources of supply; (d) shortage of cars, trucks or other transportation facilities or other delays in transit; (e) existing or future strikes or other labor troubles affecting production or shipment, whether involving Octane’s employees or employees of others, and regardless of responsibility or fault on the part of employer; or; (f) other contingencies of manufacture or shipment.
5. Taxes: All taxes and excises of any nature whatsoever now or hereafter levied by any governmental authority, whether federal, state, or local, both directly or indirectly, upon the sale, use or transportation of any goods sold hereunder shall be paid and borne by Buyer.
6. Delivery/Title/Risk of Loss: Octane will deliver goods to the shipping dock at Octane’s facilities (“Delivery Point”) using standard methods of packaging and shipping. Title and risk of loss for such goods pass to Buyer upon Octane’s delivery to the Delivery Point. Any claim by Buyer against Octane for shortage of damage occurring prior to such delivery must be made in writing within seven (7) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from Octane in condition claimed. Shipment to an installer or other third party intermediary shall not alter the timing of passage of title and risk of loss for such goods to Buyer, which shall occur in all cases at the time of Octane’s delivery of goods to the Delivery Point.
7. WARRANTY, DISCLAIMER AND LIMITATIONS OF LIABILITY: All Octane goods are subject to a written limited warranty from Octane that includes provisions disclaiming certain warranties and limiting Octane’s liability. The written limited warranty applicable to each good is available for review by Buyer on the Octane website (octaneredesign-aws.blueearth.net) and/or is shipped with the good purchased, unless Octane has otherwise agreed to different terms in a separate writing that is signed by Buyer and an officer of Octane. The written limited warranty from Octane is expressly incorporated into these Terms and Conditions by reference. Any claim by Buyer with reference to goods sold hereunder for any cause shall be deemed waived by Buyer unless Octane is notified in writing within seven (7) days of the date Buyer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranties.
8. Security: Octane reserves the right to require payment for the goods in advance or satisfactory security if the financial responsibility of Buyer becomes unsatisfactory to Octane. Such security may include, but is not limited to, execution by Buyer of an installment note, security agreement, financing statement and/or personal guarantee. If Buyer fails to make payment in accordance with these Terms and Conditions or any collateral agreement, or fails to comply with any provision hereof, Octane may at its option, and in addition to its other remedies, cancel without cost or penalty any unshipped portion of the applicable order. Buyer remains liable for all unpaid accounts.
9. Finance/Service Charges: A service fee of the lesser of 1.5% per month or the maximum permissible rate will be added to all past due accounts. There will be a $25.00 charge for every check returned due to insufficient funds.
10. Buyer Leased Goods: NO LEASE ARRANGEMENTS INITIATED BY BUYER SHALL ALTER THE TIMING OF PASSING OF TITLE AND RISK OF LOSS FOR SUCH GOODS AS PROVIDED IN SECTION 6 ABOVE.
11. Returns/Cancellations: Goods may not be returned, and orders once accepted may not be cancelled, without Octane’s prior written consent.
12. No Waiver: Octane’s failure to enforce any of the conditions herein or to exercise any rights arising from Buyer’s default shall not affect or impair Octane’s rights in the event such default continues or in the event that there are subsequent defaults by Buyer and neither any such failure nor any prior course of performance between the parties shall constitute a waiver of other or future defaults by Buyer.
13. Terms Severable: In the event that any one or more of these terms or conditions is held invalid, illegal or unenforceable, such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
14. Governing Law: These Terms and Conditions, and all rights and obligations of the parties hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof.