The goods listed on the face of this Customer Order have been sold to you ("Buyer") subject to the terms and conditions set forth herein, all of which you agree to by your acceptance of such goods. Additionally, all future orders placed by HiPEQ will be accepted only on the following terms and conditions, all of which you, as Buyer, accept and agree to by the placement of such orders.
1. Release of Liability, Assumption of Risk, and Indemnity Agreement.
READ CAREFULLY! BY COMPLETING A PURCHASE YOU AGREE TO WAIVE CERTAIN RIGHTS!
This Agreement is between purchaser(s) of exercise equipment manufactured by Hipeq (“Purchaser”) and Hipeq, LLC, a California limited liability company (“Hipeq”). Hipeq manufactures and markets specialty exercise equipment (“Equipment”). Purchaser has carefully reviewed, understands, and agrees to the terms and conditions of the attached Indemnity, and that use of the Equipment has inherent risks. This Agreement is incorporated into, and is a condition of, every sales agreement for each piece of equipment sold by Hipeq to Purchaser.
a. ASSUMTION OF RISK. Purchaser, on behalf of Purchaser, and on behalf of all other users of Equipment (“Users”), EXPRESSLY ASSUMES ALL RISKS OF INJURY, LOSS, OR DEATH, including, but not limited to risks of injury due to falling, tripping, toppling, or crashing; entanglement or pinching, musculoskeletal or cardiovascular injury or failure, physical or psychological injuries, communicable diseases, damage to reputation, or financial losses or damage of any kind.
b. RELEASE OF LIABILITY. Purchaser agrees to RELEASE FROM LIABILITY and agrees never to sue Hipeq, and all of the successors, heirs, assigns, directors, officers, partners, investors, shareholders, members, agents, employees, owners, parent and subsidiary companies, and affiliated companies of each (collectively herein, the “Releasees”) for any injury, loss, or death resulting from any User’s use of the equipment sold by Hipeq to Purchaser.
c. INDEMNITY. In the event that any claim or lawsuit is initiated arising out of any User’s use of the Equipment, Purchaser AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS the Releasees for any damages, attorney’s fees, or costs arising out of such a claim or a lawsuit.
d. PURCHASER’S UNDERTAKINGS. Purchaser agrees to assume responsibility for alerting Users to the risks of injury and for instructing and supervising all Users to ensure proper usage and to minimize the risk of injury, by way of signage, instruction, or any other reasonably effective means. Purchaser agrees to periodically review the condition of the Equipment, and to abide by any safety notices and/or user guides that Hipeq may from time to time provide.
WITH ALL OF THE ABOVE FULLY UNDERSTOOD, Purchaser enters into this agreement freely and voluntarily, as a condition of the sales agreement between Purchaser and Hipeq.
2. Buyer's Duty to Inspect and Claims for Loss or Damage in Shipping. Buyer must immediately inspect all goods for shortages, conformity with order and defects. All goods claimed to be defective shall be held for inspection by HiPEQ. Claims for shortage or deductions for erroneous charges must be presented within fifteen (15) days after receipt of the goods or they will be disallowed. No goods will be taken back and credited or replaced unless authorization for return has been given by HIPEQ’s Customer Service Department. Claims for goods damaged in shipment must be made directly with the carrier.
IMPORTANT: For orders being delivered to the buyer via Freight; Buyer shall inspect and take photos of received items before and after they are taken off the delivery truck. Photos must be taken from every angel, be in focus and generally show entire product including the pallet.
3. Shipments to customers. Orders are generally dispatched within fifteen (15) days after receipt of a full payment and are shipped via UPS, FedEx or Freight ground service with tracking and drop-off with signature. If the Buyer prefers delivery by other means, HIPEQ’s needs to be contacted before choosing a product a product and additional charges may be applied. Shipping fees include handling and packing fees as well as postage costs on smaller items. Handling fees are fixed, whereas transport fees vary according to volume and total weight of the shipment.
4. Acceptance of Goods and Returns. Buyer shall be deemed to have accepted all goods covered by this invoice if Buyer fails to reject and return the goods within fifteen (15) days of the receipt of goods. If Buyer chooses to reject any of the goods covered by this invoice, for whatever reason, Buyer must first notify HiPEQ. No returns will be accepted after (15) days from receipt of goods or received by HiPEQ over thirty (30) days after initial delivery to buyer. Buyer agrees to pay HiPEQ (a) restocking fee of 20% of the sales price of the returned items, and (b) all shipping charges, including return shipping costs. Refunds on damaged / incomplete returns will be determined based on the value of the returned items.
5. Deliveries. The acceptance of shipment by the Buyer when the goods are delivered by a common carrier, licensed public Diver, Buyer's own or leased carrier, or by HIPEQ’s own or leased carrier shall constitute a delivery.
(a) In the instance of goods held subject to the Buyer's instruction, or for which the Buyer has failed to supply shipping instructions, or in any case where HiPEQ, in its sole discretion, determines that any part of the goods purchased by the Buyer should be held for Buyer's account, HIPEQ may invoice the goods and Buyer agrees to make payment at the maturity of the invoice so rendered. Goods invoiced and held at any location for whatever reason shall beat at Buyer's risk and HiPEQ may charge for insurance and storage at prevailing rates.
(b) No freight, express or delivery charges shall be subject to discount.
(c) Partial delivery shall be accepted by the Buyer and paid at contract terms and prices. All sample requirements furnished on this order shall be charged for by HiPEQ and paid for by the Buyer.
THERE ARE TWO CATEGORIES OF FREIGHT DAMAGE
NOTATED DAMAGE – Damages are notated when the damage is specifically written on the delivery receipt and/or are refused. HiPEQ LLC. must be notified of the damage and/or refusal as soon as possible so that we may file a damage claim with the freight company. You are encouraged to take photographs of the damage and email them to us at email@example.com. If the driver did not remove the goods at the time of delivery, you must retain the product and all of the packaging including the stretch-wrap, carton and any foam it contained. The freight company may or may not come back to inspect and remove the merchandise. If they do not remove the product then wait until we authorize you to dispose of it.
CONCEALED DAMAGE – Damage that is found after the driver has left and was not notated on the delivery receipt is concealed damage. Replacement or repair costs will apply on all concealed damages. It is your responsibility to inspect the entire shipment before the driver leaves. Failure to do so releases HiPEQ LLC. from all liability. If concealed damaged is discovered HiPEQ LLC, must be notified within 24 hours (excluding weekends). We require that all original packaging materials including stretch-wrap, carton and any foam contained therein be retained until we advise you it may be discarded. You are encouraged to take photographs of the outer and inner packaging as well as the damaged product. We will ship a replacement as soon as possible at cost to you. (See additional information on “Concealed Damage” information sheet).
All freight companies allow a specific amount of time for you to inspect your shipment before the driver leaves. The time limits are based on the total weight of your shipment. If the driver refuses to wait, then you must call HiPEQ LLC. immediately and contact your local delivering terminal. Normally you will have 15 to 30 minutes to inspect the shipment.
If you signed for the carton without notating any damage on the delivery receipt you have signed the goods as “Free and Clear.” A notation of “Subject to Inspection” or “Possible Damage” on the delivery receipt is not acceptable and is viewed the same as if it were signed clear. If damage is not specifically notated on the delivery receipt, the delivering freight line will not accept responsibility for the damage. That means that we will not be reimbursed for the damaged merchandise and freight charges; therefore, we cannot provide replacements to you free of charge. You will be responsible for any replacement costs.
Damages that occur in transit are unfortunate. Our policies are in place to expedite the process of sending replacements or repairing as quickly as possible. Please, do not hesitate to call if you have any questions regarding our policy on accepting freight shipments: 650.549.5888
6. Time of the Essence. HiPEQ shall not be liable for default in delivery or delays in shipment for any cause beyond HIPEQ’s reasonable control. Buyer requested changes may result in additional charges.
7. DISCLAIMFR OF WARRANTIES AND LIMITATION OF I IARIIITY. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT HiPEQ MAKES NO EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR OF MERCHANT ABILITY OR OF ANY OTHER KIND WHATSOEVER EXCEPT AS TO THOSE EXPRESS WARRANTIES GOVERNING THE PRODUCT SOLD. BUYER ASSUMES ALL THE RISK OF LIABILITY WHATSOEVER RESULTING FROM THE USE OF SUCH GOODS WHETHER USED INDIVIDUALLY OR IN COMBINATION WITH OTHER GOODS OR SUBSTANCES. HIPEQ’s LIABILITY FOR BREACH OF EXPRESS WARRANTY OR NONCONFORM1NG GOODS IS EXCLUSIVELY LIMITED, AT HIPEQ’s OPTION, TO REPLACEMENT OF THE DEFECTIVE GOODS OR RETURN OF THE PURCHASE PRICE OF SUCH GOODS AND UNDER NO CIRCUMSTANCES SHALL HiPEQ BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
8. Government Law and Jurisdiction. This invoice, and all other matters relation hereto, including any matter or dispute arising out of the sale of the goods subject hereto, shall be interpreted, governed, and enforced according to the laws of the State of California.
9. Amendments. This invoice may be amended at any time upon agreement of the parties hereto, which amendment(s) must be reduced to writing and signed by all parties in order to become effective. No waiver by HiPEQ of any default or provision hereof shall be deemed a waiver of any other default or provision.