Covered for the long haul

1. “Precor” means Precor Incorporated, a Delaware corporation with offices at 20031 142nd Avenue NE, Woodinville, WA 98072.
2. “Customer” The person or entity named as the “Customer” in Schedule 1 to the Warranty/Service Order Form in to which these terms and conditions are incorporated (“Order Form”; Order Form and these Terms and Conditions collectively referred to herein as the “Agreement”).

(A) Customer is the owner of the Equipment (provided; such Equipment has been paid for in full);

(B) Customer wishes Precor to provide repair, maintenance and advisory services in relation to the Equipment; and,

(C) Precor is willing to supply such services on the terms and conditions of this Agreement.

1. Interpretations

1.1 “Basic Service” means the repair and maintenance service to be provided pursuant to Clause 2.2.1.

“Equipment” means the equipment the description and location of which are shown in Schedule 2 of the Order Form.

“Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other industrial action).

“Warranty” means Precor’s standard warranty of two years parts and one year labor.

“Liability” means any liability arising by reason of any representation, or any breach of any implied term or any duty at common law, or under any statute, or under any express term of this Agreement.

“Location” means the location of the Equipment shown in Schedule 2 of the Order Form or any other location agreed in writing from time to time between the parties.

“Loss” means, in relation to the Customer, any loss (whether loss of profit or otherwise), damages, costs or other compensation and any legal or other expenses which is or are awarded against or incurred by or paid or agreed to be paid in settlement of any claim by the Customer, however the same may arise and whether occasioned by the negligence of Precor, its employees or agents or otherwise.

“Normal Working Hours” means the hours of 0830 hours to 1700 hours (inclusive) on any Working Day. “Working Day” means any day other than a Bank or Public Holiday.

“Writing” includes electronic mail, facsimile transmission and comparable means of communication.

1.2 The headings in this Agreement are for convenience only and shall not affect its interpretation.

2. Services to be Provided

2.1 During the Term of this Agreement Precor shall provide the Customer with a repair and maintenance service for the Equipment.

2.2 The Basic Service shall consist of:-

2.2.1 routine maintenance on the Equipment at such intervals as Precor may reasonably determine to be necessary in order to keep the Equipment in good working order; and

2.2.2 the repair of any defect in or malfunction of the Equipment which is discovered by Precor’s representatives during the course of routine maintenance checks or is reported to Precor by the Customer from time to time.

2.3 Maintenance checks on the Equipment shall be carried out by one of Precor’s suitably qualified and duly authorized representatives attending at the Location at such times during Normal Working Hours as may be agreed in advance between Precor and the Customer from time to time.

2.4.1 If Precor’s representative discovers a defect in or malfunction of the Equipment in the course of routine maintenance, Precor’s representative will use all reasonable efforts to repair it at the Location, but if that is not reasonably practicable (or is not reasonably practicable in the time available during Normal Working Hours), Precor’s representative will seek to make suitable arrangements with the Customer for:-

2.4.2 a further visit to be made to the Location during Normal Working Hours for the repair of the defect or malfunction; or

2.4.3 if the Equipment is inoperative as a result of the defect or malfunction, its repair at the Location if necessary outside Normal Working Hours; or

2.4.4 if it is not reasonably practicable for the defect or malfunction to be repaired otherwise, the removal of the Equipment (or, where practical, the part of the Equipment in question) for the purposes of repair.

2.5 If the Customer reports a defect in or malfunction of the Equipment during Normal Working Hours, Precor shall use its best efforts to ensure that one of its Precor’s suitably qualified and duly authorized representatives visits the Location, during Normal Working Hours, within the period of time specified in the Third Schedule Precor’s representative will use all reasonable efforts to repair the defect or malfunction at the Location, but if that is not reasonably practicable (or is not reasonably practicable in the time available during Normal Working Hours), Precor’s representative will seek to make such arrangements with the Customer as are mentioned in Clause 2.4.1.

2.6 For the purposes only of determining the period of time within which Precor’s representative visits the Location pursuant to Clause 2.5, any period between the end of Normal Working Hours on one Working Day and the beginning of Normal Working Hours on the next Working Day shall be disregarded.

2.7 If the Customer reports a defect in or malfunction of the Equipment after Normal Working Hours on any day, unless Precor expressly agrees otherwise, the report shall be deemed to be made at the beginning of Normal Working Hours on the next Working Day, and Clause 2.5 shall take effect accordingly.

2.8 All reports of defects in or malfunctions of the Equipment must be made by telephone, or in Writing, as appropriate, by a representative of the Customer and otherwise in such a manner as Precor may reasonably require from time to time.

2.9 Precor shall ensure that its representatives comply with all safety and security regulations in force at the Customer’s premises which are brought to the attention of such representative.

3. Spare parts and replacement

3.1 Precor shall use reasonable efforts to supply minor spare parts and replacement components required to maintain the Equipment in good working order at no extra charge; provided, the equipment is under the Warranty. If, however, the Equipment is damaged other than by normal wear and tear or the Equipment requires a major spare part or replacement component (as to whether either of which events has occurred Precor’s decision shall be final and binding on the Customer), Precor reserves the right to charge the Customer for supplying the same.

3.2 All spare parts and replacement components supplied by Precor shall become part of the Equipment and any parts and components removed from it shall become Precor’s property, unless otherwise agreed in writing between the parties.

3.3 Precor reserves the right to have all Equipment covered under the Agreement inspected by a Precor Authorized Technician upon reasonable notice to Customer, including without limitation, in order to validate that a specific part or component is required to be replaced.

4. Services not included

4.1 The Basic Service shall not apply to any defect or malfunction which in Precor’s opinion has arisen as a result of:-

4.1.1 electrical work external to the Equipment;

4.1.2 transportation or relocation of the Equipment not performed by or on behalf of Precor;

4.1.3 any error or omission relating to the operation of the Equipment;

4.1.4 any modification, adjustment or repair to the Equipment made by a third party without the written consent of Precor;

4.1.5 the subjection of the Equipment by the Customer to unusual physical, environmental or electrical stress, the neglect or misuse of the Equipment or any failure or fluctuation of electrical power; or

4.1.6 any other cause (except normal wear and tear) which is not due to the neglect or default of Precor.

4.2 The Basic Service shall not include:-

4.2.1 Repair, replacement or other service to: batteries, headphone jacks, iPod connectors, USB connectors, upholster pads, and rollers, non-integrated receivers, transmitters, Enseo media adapters, or cache servers.

4.2.2 Removal of rust or repair of cosmetic damage to Equipment; or

4.2.3 Software upgrades or defects.

4.3 If any part of the Equipment can no longer be maintained in good working order by the provision or replacement spare parts or the whole of the Equipment is damaged beyond economic repair or otherwise than through Precor’s fault (as to whether either of which events has occurred Precor’s decision shall be final and binding on the Customer) Precor reserves the right to terminate this Agreement forthwith, by giving Written notice to the Customer, in respect of the whole or any part of the Equipment which can no longer be maintained, in which case Precor shall repay to the Customer a pro rata proportion of any charges for Precor’s services which have been paid in advance by the Customer.

4.4 Except as expressly provided in this Agreement or as agreed between the parties in writing, Precor shall have no obligation to provide any services to the Customer outside Normal Working Hours.

5. Customer’s Obligations

5.1 The Customer shall:-

5.1.1 at all times keep the Equipment in the environmental conditions recommended by Precor;

5.1.2 not move the Equipment without obtaining the prior Written consent of Precor;

5.1.3 use the Equipment only in accordance with such instructions and recommendations relating to the care and operation of the Equipment as may be issued by Precor; and

5.1.4 not allow any person other than Precor’s representatives to adjust, maintain, repair, replace or remove any part of the Equipment.

5.2 The Customer shall ensure that Precor’s representatives have full and free access to the Equipment and to any records of its use kept by the Customer to enable Precor to perform its duties.

5.3 The Customer shall provide Precor with such information concerning the Equipment, its application, use, location and environments as Precor may reasonably request to enable it to carry out its duties.

5.4 The Customer shall take all such steps as may be necessary to ensure the safety of any of Precor’s representatives who visit any premises of the Customer.

5.5 The Customer shall take all reasonable steps to keep the equipment clean and to follow the basic procedures as outlined in Owner’s Manual that applies to the Equipment.

6. Charges

6.1 In consideration of the provisions of the Basic Service, the Customer shall, subject to receipt of an invoice from Precor, pay to Precor the charges set out in Schedule 4 such charges to be paid annually in advance as specified in Schedule 4.

6.2 If Precor’s services are requested without any reasonable justification, or by reason of any defect in or malfunction of the Equipment due to causes not covered under this Agreement, the Customer shall be liable to pay Precor’s standard charges from time to time in force for such services.

6.3 All charges and other sums payable by the Customer under this Agreement are exclusive of any taxes, which shall be additionally payable by the Customer together with the charge or the sum in question.

6.4 If the Customer fails to pay on the due date any amount which is payable to Precor pursuant to this Agreement, then without prejudice to Clauses 9.2, that amount shall bear interest from the due date until payment is made to Precor (both before and after any judgment) at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

7. Liability

IN NO EVENT SHALL PRECOR OR THEIR AFFILIATES HAVE ANY LIABILITY TO CUSTOMER AND ITS PARENTS, AFFILIATES AND SUBSIDIARIES AND THEIR COLLECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF SALES, LOSS OF INVESTMENT OR OTHER EXPENDITURES, INVESTMENTS, OR COMMITMENTS) HOWEVER CAUSED AND, WHETHER ARISING OUT OR IN CONNECTION WITH THE PROVISIONS OF THE SERVICES UNDER THIS AGREEMENT OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, and the total Liability of Precor for any other Loss to the Customer so arising in any year of this Agreement in respect of any one event or series of connected events shall not exceed the charges payable by the Customer for the Basic Service for that year.

8. Force Majeure

8.1 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

8.2 Notwithstanding any other provisions of this Agreement, neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.

9. Duration and termination

9.1 This Agreement shall continue in effect for an initial period of twelve months commencing on the “Effective Date of Agreement” as per Schedule 3 of the Order Form.

9.1.1 This Agreement shall be renewable at the end of the initial period for a successive period of 12 months unless either party gives written notice of its intention not to renew 90 days before the expiration of the current term notwithstanding the provisions of Clause 9.2 herein.

9.1.2 Precor shall notify the Customer of any changes in the terms of the Agreement at least 30 days prior to the notice period for renewal or termination, i.e., 120 days prior to the expiration of the then current term.

9.2 Precor shall be entitled to terminate this Agreement:-

9.2.1 in the circumstances and to the extent referred to in Clause 4.2

9.2.2 with or without cause upon thirty (30) days written notice to Customer; and

9.2.3 By giving written notice to the Customer if any sum payable under this Agreement is not paid on the due date.

9.3 Either party shall be entitled to terminate this Agreement by written notice to the other if:-

9.3.1 that other party commits any continuing or material breach of any of the provisions of this Agreement and in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.

9.3.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party;

9.3.3 that other party makes any voluntary arrangements with its creditors or becomes subject to an administration order;

9.3.4 that other party goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganization and in such manner that the company resulting from the reorganization effectively agrees to be bound by or to assume the obligations imposed on that other party under this Agreement); or

9.3.5 that other party ceases, or threatens to cease, to carry on business.

9.3.6 For the purpose of Clause 9.3.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

9.4 The rights to terminate this Agreement given by this clause 9 shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

9.5 Upon the termination of this Agreement for any reason, subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination and the terms of Clause 9.6 below, neither party shall have any further obligation to the other under this Agreement.

9.6 Refund or Payment upon Termination.

9.6.1 Termination for Cause by Customer; Termination Without Cause by Precor. Upon any termination for cause by Customer or termination without cause by Precor, Precor shall refund Customer any prepaid fees covering the remainder of the term after the effective date of termination.

9.6.2 Termination Without Cause by Customer; Termination for Cause by Precor. Upon any termination without cause by Customer or termination for cause by Precor, Customer shall pay any unpaid fees owed to Precor, including but not limited to any fees covering the remainder of the term, and Precor shall not be obligated to refund any prepaid fees covering the remainder of the term.

10 Nature of Agreement

10.1 Precor shall be entitled to carry out its obligations under this Agreement through any agents or sub-contractors appointed by it in its absolute discretion for that purpose.

10.2 This Agreement contains the entire agreement between the parties with respect of its subject matter, supersedes all previous agreements and understandings between the parties, and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties.

10.3 If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid.

10.4 If any provision of this agreement is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions of this agreement and the remainder of the affected provisions shall continue to be valid.

10.5 This Agreement will be governed by and construed in accordance with the laws of the State of Washington. The parties agree to submit to and waive any objections to the exclusive jurisdiction of and venue in the courts of King County, Washington for any litigation arising out of this Agreement.

1. Notice

All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective: (i) upon receipt if delivered in person, (ii) one day after deposit prepaid with a national overnight express delivery service, or (iii) three days after deposit in the United States mail. Either party may change the following contact information upon written notice to the other party. Notices shall be delivered or transmitted to (a) Customer address provided in Schedule 1 of the Order Form and (b) Precor at 20031 142nd Avenue NE, Woodinville, WA 98072.