WalkTop Deposit Agreement
Buyer is making a deposit with Fitneff Inc. (“Fitneff”) for the purchase of a WalkTop according to the following terms and conditions (”Deposit Agreement”). This is a binding agreement. Read it carefully and take the time required to understand this agreement. BY FORWARDING A DEPOSIT TO FITNEFF, THE BUYER IMPLICITLY ACCEPTS ALL TERMS AND CONDITIONS CONTAINED WITHIN THIS DEPOSIT AGREEMENT.
This Deposit Agreement outlines the deposit terms for production of Fitneff’s flagship product, the WalkTop. WalkTop Delivery Positions will be allocated on a first-come, first-served basis. This Deposit Agreement is subject to the following terms:
Product: The WalkTop
Estimated Price: $439 USD
Deposit Amount: $39 USD
Refundable: Yes, according to the terms of this agreement
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, Fitneff and you, the “Buyer” (each a “Party,” and collectively the “Parties”) agree as follows:
Section 1 DEPOSIT
Section 1.1 Buyer agrees to pay the Deposit Amount set forth above (”Deposit”) for the delivery from Fitneff of one (1) WalkTop. The Deposit shall be refundable as provided herein.
Section 2 POSITION LIST
Section 2.1 Upon acceptance of this Deposit Agreement and Fitneff’s receipt of the Buyer’s Deposit, Fitneff will assign Buyer a delivery position (”Position Number”) on the position list. Delivery positions are offered on a first-come, first-served basis and are subject to prior commitment and availability, as determined by Fitneff in its sole discretion. Products designated for Fitneff marketing campaigns, demonstrations, testing, or any other Fitneff-related activities regarding product not intended for sale to the general public, are not considered part of the position list.
Section 2.2 The scheduled date of delivery for the WalkTop (”Delivery Date”) shall be determined by Fitneff. The Buyer is encouraged to opt-in to receive Fitneff’s newsletter. Fitneff will distribute relevant information and production updates within that newsletter or an email confirmation.
Section 3 PURCHASE AGREEMENT
Section 3.1 Fitneff will inform Buyer in writing of the expected initiation of production of the WalkTop (”Production Notice”) and include a Purchase Agreement governing the purchase of the WalkTop. Unless this Deposit Agreement has been earlier canceled, Buyer shall, within fourteen (14) calendar days of the date of the Production Notice, select any optional equipment, if available at that time, and accept the Purchase Agreement. The Purchase Agreement will include various terms and conditions, and depending upon the then current federal and/or state/provincial laws, may include certain conditions of purchase as required by then applicable federal and/or state/provincial laws.
Section 4 SPECIFICATIONS
Section 4.1 The PRELIMINARY WalkTop is shown in on the WalkTop official website (www.walktop.com). As part of the Purchase Agreement, Fitneff will inform Buyer of the final specifications of the WalkTop. Any specifications referred to on the WalkTop website, or otherwise in any materials or information provided by Fitneff (other than the Purchase Agreement) are preliminary only and may be changed at any time.
Section 4.2 Buyer expressly acknowledges that Buyer has not relied on any oral or written representations except as specifically stated in the Agreement and that Fitneff has made no representations as to the suitability of the WalkTop for any particular purpose of Buyer.
Section 5 PRICE AND PAYMENT SCHEDULE
Section 5.1 The Estimated Price herein is subject to change at Fitneff’s sole discretion. The final purchase price (”Final Purchase Price”) will be the Fitneff list market price applicable to the then-estimated Delivery Date, including the then-current Fitneff list price of any selected optional equipment or services, and will be listed in the Purchase Agreement.
Section 5.2 Final payments for the excess of the Final Purchase Price over the Deposit Amount and Taxes (defined below) will be set forth in the Purchase Agreement with the final payment due no later than the WalkTop Delivery Date. Payments are subject to verification by Fitneff.
Section 5.3 Upon execution of the Purchase Agreement, the Deposit shall be applied as a progress payment thereunder subject to the terms of the Purchase Agreement, which will supersede this Deposit Agreement. UPON BUYER ACCEPTING THE PURCHASE AGREEMENT OR 14 DAYS AFTER BUYER RECIEVES THE PRODUCTION NOTICE, WHICHEVER OCCURS FIRST, THE DEPOSIT BECOMES NON-REFUNDABLE.
Section 5.4 The Final Purchase Price is exclusive of shipping, any sales or use tax, value-added taxes, duties, registration fees, or any charges that may be levied by governmental authorities in connection with the purchase, sale, transfer, use, registration, export, import of the WalkTop (collectively “Taxes”). Taxes required by law to be charged at the point of sale will be collected by Fitneff.
Section 6 TERMINATION
Section 6.1 Buyer may cancel this Deposit Agreement by providing written notice to Fitneff no later than fourteen (14) calendar days after the date of the Production Notice. In the event Buyer timely cancels this Deposit Agreement, Buyer’s Deposit will be refundable less a $15.00 processing fee. However, in the event Buyer timely cancels the Deposit Agreement for the reason stated in the cancelation notice that the Final Purchase Price of the WalkTop in the Purchase Agreement with standard equipment is higher than the Estimated Price, the $15.00 processing fee will not be deducted from the refund. Fitneff will refund the Deposit to Buyer within forty-five (45) days after receipt of a timely cancellation notice, and will be refunded to the credit card used for the Deposit.
Section 6.2 Fitneff may, at its sole discretion, terminate this Deposit Agreement for cause, upon written notice to Buyer, if any of the following apply:
a. Unless the Deposit Agreement has been earlier canceled, Buyer fails to accept the Purchase Agreement within fourteen (14) days after the date of the Production Notice; or
b. Buyer fails to make any required payments in a timely manner or otherwise fails to comply with this Deposit Agreement; or
c. A proceeding under any law of bankruptcy, insolvency or reorganization or relief of debtors is instituted by or against Buyer.
Section 6.3 Fitneff will use this Deposit Agreement as an important measure of demand for the WalkTop and will commit to development and production costs accordingly. If this Deposit Agreement is terminated pursuant to Section 6.2, Fitneff will be damaged in a manner that will be difficult to calculate. For these reasons, if Fitneff terminates this Deposit Agreement under Section 6.2, Fitneff may cancel Buyer’s delivery position and retain all Deposits and any other pre-delivery payments made by Buyer as liquidated damages. If Buyer is unable to enter into a Purchase Agreement for reasons that are beyond Buyer’s control, then Fitneff, in its sole discretion, may refund all or a portion of any pre-delivery payments that have been received by Fitneff. Buyer acknowledges that the foregoing liquidated damages provision is an important consideration to Fitneff’s willingness to enter into this Deposit Agreement and is not a penalty.
Section 6.4 Fitneff may terminate this Deposit Agreement upon written notice to Buyer, if Fitneff, in its sole discretion, determines that either (i) Buyer’s demonstrated behavior is inconsistent with a safe code of conduct regarding the usage of fitness equipment or fitness accessory, including acting prudently, respectfully, courteously, and with sound judgment, or (ii) Buyer’s demonstrated behavior within the Fitneff deposit-holder community is rude, abusive, or otherwise adversely impacting others in the community, including Fitneff staff. Following such termination, Fitneff will refund the Deposit to Buyer by check or refund to the credit card used for the Deposit.
Section 6.5 No interest shall accrue, or be paid, to Buyer on the refund of Deposits or other pre-delivery payments.
Section 7 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM LIABILITY FITNEFF SHALL HAVE TO BUYER FOR ANY BREACH OF THIS DEPOSIT AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATING TO THIS DEPOSIT AGREEMENT SHALL BE A FULL REFUND OF THE DEPOSIT MADE BY BUYER. IN NO EVENT SHALL FITNEFF BE LIABLE FOR CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THIS DEPOSIT AGREEMENT.
Section 8 ATTORNEYS’ FEES
Should any litigation be commenced (including any proceedings in a bankruptcy court) among Fitneff and Buyer in connection with this Deposit Agreement, the prevailing party in such proceeding, as determined by the court, will be entitled to reimbursement of its reasonable attorneys’ fees, expenses, and court costs incurred in the litigation.
Section 9 GOVERNING LAW AND VENUE
Section 9.1 This Deposit Agreement shall be governed by and construed in accordance with the laws of Alberta, Canada.
Section 9.2 The Parties agree that the provincial and federal courts located in Calgary, Alberta, Canada, have exclusive jurisdiction and venue under this Deposit Agreement, and Fitneff and Buyer consent to, and hereby waive, any and all objections that they may have as to jurisdiction and/or venue in any of the above courts, including any claim that any action or proceeding has been brought in an inconvenient forum.
Section 10 SEVERABILITY
In the event that any provision of this Deposit Agreement is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Deposit Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.
Section 11 TRANSFERABILITY
Buyer shall not Transfer (as defined below) the Deposit Agreement or any rights therein (including, without limitation, the Deposit Amount or the Delivery Position) without the prior written consent of Fitneff, which consent may be withheld in Fitenff’s sole discretion. “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, whether voluntary, involuntary or by operation of law, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors. Any purported or attempted Transfer without Fitneff’s prior written consent shall be null and void. Buyer shall indemnify and hold harmless Fitneff for all costs and expenses incurred (including, without limitation, reasonable attorney’s fees and costs) related to or arising from any purported or attempted Transfer without Fitneff’s prior written consent.
Section 12 MODIFICATIONS
This Deposit Agreement may be amended or modified, and any of the terms, covenants, representations, warranties, or conditions may be waived, only by a written instrument executed by Fitneff, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition or breach shall not be deemed to be a further continuing waiver of any such condition or breach, or of the breach of any other provision of this Deposit Agreement. This Deposit Agreement shall be binding upon and inure to the benefit of the Parties’ successors, executors, heirs and permitted assignees.
Section 13 NOTICES
Section 13.1 Any notice to be given under this Deposit Agreement may be sent by email, by pre-paid overnight delivery (FedEx, UPS, etc.) or by postal mail to Buyer’s address given with this Order or to the address below for Fitness. Each notice or demand shall be deemed to have been given or made when actually received or five days (5) after being sent, whichever occurs first.
P.O. Box 31072 Bridgeland
Section 13.2 Buyer acknowledges that “documents” associated with this Deposit Agreement may be digital and that such “documents” are agreed to be equivalent to “paper” documents. Also, communications to/from the email address specified by Buyer shall constitute delivery of the equivalent of “signed” documents.
Section 14 WARRANTIES
BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT, FITNEFF MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY EXCLUDES AND DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ALL OTHER OBLIGATIONS OR LIABILITIES OF FITNEFF, WHETHER UNDER A THEORY OF NEGLIGENCE OR STRICT LIABILITY, CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SALE, USE OR OPERATION OF FITNESS EQUIPMENT OR FITNESS ACCESSORIES, OR OTHERWISE, ARE EXCLUDED BY FITENFF AND HEREBY EXPRESSLY WAIVED BY BUYER.
Section 15 BINDING
This Deposit Agreement shall become binding upon Fitneff’s acceptance (by return email to Buyer confirming the execution and delivery of this Deposit Agreement) and receipt by Fitneff of unconditional payment of the Deposit. Buyer acknowledges and agrees that it has read, understood and agrees to the provisions hereof. Prior to acceptance, this offering is subject to change in Fitneff’s sole discretion at any time. There are no assurances by Fitneff that the terms and conditions of this Deposit Agreement, including the Estimated Price, Final Purchase Price or Deposit amount, are or will be the same for all purchasers. This Deposit Agreement constitutes the entire agreement among the parties and supersedes all prior written or oral understandings concerning its subject matter.