TERMS AND CONDITIONS

   ADVANCED FITNESS REPAIR LLC - TERMS AND CONDITIONS

1.  Agreement. These terms and conditions, and, upon acceptance by Advanced Fitness Repair LLC (“AFR”) of a service or maintenance work order (“Work Order”), together constitute and agreement (“Agreement”) for the repair of the items described in the Work Order attached hereto (the “Equipment”). All terms and conditions of this Agreement shall be applicable to any work done to or services provided for the Equipment, whether under this Agreement, a subsequent written agreement, or otherwise, unless otherwise agreed to in writing by AFR.

2.  Charges. AFR will charge you (the “Owner”) for all work at AFR’s prevailing time and materials rates, together with the cost of all parts, labor, and shipping incurred on the repair, or for the price specified on the Work Order; plus applicable taxes. Any price that AFR quotes is an estimate only, unless noted as a “firm quote” in a written proposal signed by both AFR and Owner. With a firm quote, AFR may increase its charge if additional work is required due to damage or defects not known or apparent at the time the quote was given, or is otherwise requested by Owner. Owner’s payment is due 30 days from Owner’s receipt of an invoice from AFR. AFR reserves the right to include a financing charge on balances past due, which will be the lesser of 1.5% per month or the maximum rate permitted by law.

3.  Limited Warranty. AFR shall perform the work in a good and workmanlike manner. AFR warrants its repairs against defects in labor appearing or manifesting themselves within thirty (30) days following completion of AFR’s work, provided the Owner notifies AFR in writing within seven (7) days after the appearance or manifestation of the defect, but this limited warranty excludes defects that occur or become apparent following (i) third-party alteration, repair, or modification of the Equipment, or (ii) misuse of the Equipment. This remedy shall be the exclusive remedy for breach of any warranty under this Agreement. The Owner shall not be entitled to receive incidental, special, consequential, or punitive damages from AFR for breach of any warranty or duty arising from this agreement. THIS WARRANTY AND REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. AFR SPECIALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF AFR CANNOT LAWFULLY DISCLAIM IMPLIED WARRANTIES UNDER THIS LIMITED WARRANTY, ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THE DURATION OF THE EXPRESS LIMITED WARRANTY.

4.  Limitation of Liability. Notwithstanding any other provision in this Agreement, under no circumstances shall the liability of AFR for damages arising out of any act or omission of AFR (other than gross negligence or willful misconduct) exceed the total amount invoiced by AFR to the Owner for the services provided by AFR pursuant to this Agreement.

5. Indemnification. To the maximum extent permitted by law, the Owner hereby agrees to defend, indemnify, and hold harmless AFR (and its officers, employees, and agents) from and against all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (i) misuse, alteration, modification, or repair of the Equipment by any person besides AFR; (ii) Owner’s breach of this Agreement.

6. Changes. If the requested repairs require labor and/or parts not specified in the Work Order, AFR may seek your approval of a revised estimate. If you do not agree to the revised charges, AFR may hold you responsible for any and all fees you incur prior to the revised estimate, plus all applicable tax.

7. Parts. AFR may use new, used, or reconditioned parts in completing the work under this Agreement. The replacement part will become your property, and AFR may retain the replaced parts.

8.  Modification and Cancellation. No modification to this Agreement shall be enforceable unless in writing and executed by AFR. AFR’s failure to require strict performance of this Agreement or waiver of any conditions shall not act as a waiver of any of its rights nor be deemed a continuing waiver. AFR may terminate this Agreement at any time, for any or no reason, without incurring any liability whatsoever, by oral communication to Owner or by delivery of a cancellation notice to Owner at Owner’s address as listed on the Work Order. Owner may terminate this Agreement by oral communication to AFR or by delivery of a cancellation notice to AFR at AFR’s address as listed on the Work Order not later than five (5) days prior to the date upon which the work is ro be performed by AFR, and shall be liable to AFR in such event for all fees and costs incurred by AFR (including by procurement of materials) prior to the date of termination.

9. Taxes. All work is subject to New York State sales tax.

10. Miscellaneous. If any portion of this Agreement shall be deemed to be in violation of any law of the United States or State of New York, that portion, and that portion only, shall be deemed null and void, and the balance of this Agreement shall remain in full force and effect. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law principles. The venue of any action arising from this Agreement shall lie exclusively in the Supreme Court of the State of New York, in and for Suffolk County, New York, and both parties hereto shall submit to the jurisdiction of such court.