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Simple Fitness & Nutrition, LLC

IRONPARK Platforms Terms of Sale

Last Modified: January 17, 2024

TERMS AND CONDITIONS

These Terms And Conditions Of Sale (these “Terms”) are entered into by the customer accepting these Terms (“Customer”) and Simple Fitness & Nutrition, LLC (“IRONPARK”), and apply to all products and services (collectively “Services”) to be provided by IRONPARK to Customer pursuant to an order for Services agreed to by Customer and IRONPARK which references these Terms (each an “Order”). As used herein, “Purchase Agreement” means, collectively, these Terms and all Orders. 

IRONPARK expressly limits acceptance of each Order to the terms and conditions contained herein, and any additional, inconsistent, or different terms and conditions are expressly rejected. Trade usage and course of dealing or performance shall not be employed to vary, explain or supplement the terms of the Purchase Agreement.

ACCEPTANCE AND CANCELLATION

IRONPARK has no obligation to accept any order, in whole or in part, from Customer. An order will only be deemed to have been accepted by IRONPARK when IRONPARK transmits confirmation of such order to Customer. Upon Customer’s receipt of confirmation for an Order, such Order is a binding contract subject to these Terms. Customer may only cancel an Order with thirty (30) days written notice to IRONPARK or through the cancellation functionality of the Services. IRONPARK may cancel any Order on written notice to Customer. The foregoing notwithstanding, Customer understands and agrees that Customer is responsible for all fees incurred under any Order prior to the date of cancellation of such Order.

CHANGES. All requests for changes to any Order must be made to IRONPARK in writing. IRONPARK may accept or reject such proposed changes in IRONPARK’s sole and absolute discretion. Any changes to a given Order will only be made pursuant to an amended or supplemented Order issued by IRONPARK and agreed to by Customer.

PAYMENT TERMS. For each Order, Customer agrees to pay the full amount shown in the Order (including applicable sales tax, shipping and handling, and other charges) pursuant to the payment terms set forth in such Order. Except as otherwise set forth in an Order, Customer understands and agrees that IRONPARK will charge Customer’s credit card on file with IRONPARK at the beginning of each month Customer receives Services under an Order. Customer understands and agrees that Customer will not receive a refund for Services under any circumstances. In the event Customer fails to make payment when due, IRONPARK may suspend or cancel any further Services, and Customer will reimburse IRONPARK for any fees, costs or expenses IRONPARK incurs in attempting to collect such amounts due from Customer, whether by lawsuit or otherwise (including, without limitation, attorneys’ fees and collection fees).

LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

(a) IRONPARK MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF THE TRADE, WARRANTIES OF NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE PURCHASE AGREEMENT OR ANY SERVICES.

(b) UNDER NO CIRCUMSTANCES WILL IRONPARK BE LIABLE TO CUSTOMER FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES ARISING OUT OF OR RELATED TO THE PURCHASE AGREEMENT, OR THE SERVICES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY), EVEN IF IRONPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHICH INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES RELATED TO DELAYS, PERSONAL INJURY OR DEATH, DAMAGE TO OR LOSS OF PROPERTY, LOST PROFITS, LOST PRODUCTION, LOST EFFICIENCY, LOST USE OF FACILITY OR EQUIPMENT, AND THE CLAIMS OF THIRD PARTIES), OR (ii) ANY AMOUNTS IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER FOR SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM.

(c) IF ANY JURISDICTION DOES NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY SET FORTH ABOVE, IRONPARK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

INDEMNIFICATION

Customer will defend, indemnify and hold harmless IRONPARK and its affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in the Purchase Agreement; or (b) Customer’s purchase and use of the Services.

MISCELLANEOUS

  • Counterparts; Facsimile. The Purchase Agreement may be executed simultaneously in one or more counterparts, but all such counterparts taken together will constitute one and the same agreement.
  • Entire Agreement. The Purchase Agreement and the IRONPARK Platforms Terms of Use (including all components incorporated therein) (the “Platforms Terms of Use”) constitutes the entire agreement of IRONPARK and Customer and supersedes all prior and contemporaneous written and oral agreements, representations and communications between IRONPARK and Customer relating to such transactions. 
  • Amendment. The Purchase Agreement may be amended, supplemented, or otherwise modified only upon the written consent of IRONPARK. IRONPARK may amend these Terms from time to time in IRONPARK’s sole and absolute discretion. Any amendment to these Terms will apply to Customer following Customer’s notice of such amendment.
  • Force Majeure. IRONPARK will not be liable to Customer for any delay in or failure of its performance under the Purchase Agreement resulting from any act of God; fire, flood, explosion or other natural disaster; actions or impositions by federal, state or local authorities; strike; labor difficulties or disputes; vandalism, riot, commotion, act of public enemies, war, terrorism, blockage or embargo; pandemics, failure of or delay in delivery by IRONPARK's suppliers or carriers; commercial impracticability (irrespective of conjectural foreseeability at time of contracting); shortages of energy, raw materials, labor, or equipment; or any other cause beyond the reasonable control of IRONPARK.
  • Dispute Resolution. The Purchase Agreement is governed by, and will be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and IRONPARK and Customer irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to the Purchase Agreement. IRONPARK and Customer hereby waive any objection based on forum non conveniens and waive any objection to venue of any action instituted under the Purchase Agreement. If any legal action or any arbitration or other proceeding is brought in connection with the Purchase Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise. At IRONPARK’s sole discretion, it may require Customer to submit any disputes arising hereunder, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Arizona law. IRONPARK AND CUSTOMER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE PURCHASE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
  • No Third Party Beneficiaries. Except as set forth under Section 6 above with respect to the Indemnitees, there are no third party beneficiaries to the Purchase Agreement. No third party will have any rights under the Purchase Agreement, and IRONPARK will not have any obligation or liability to any third party with respect to the Purchase Agreement.
  • Notices. Any notice, demand, or communication required or permitted to be given by any provision of the Purchase Agreement will be deemed to have been sufficiently given or served for all purposes if (i) delivered personally to an authorized representative of IRONPARK or Customer, (ii) sent by facsimile or electronic mail transmission, or (iii) sent by registered or certified mail, postage prepaid. Except as otherwise provided herein, any such notice will be deemed to be given (i) on the date on which the same was personally delivered, (ii) on the date on which the notice was transmitted by facsimile or electronic mail transmission if confirmation thereof is obtained, or (iii) if sent by registered or certified mail, on the third (3rd) day after such notice was deposited in the United States mail addressed as aforesaid.
  • Severability. Any provision of the Purchase Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions thereof or affecting the validity or enforceability of such provision in any other jurisdiction.
  • Successors and Assigns. Customer may not assign its rights or delegate or cause to be assumed its obligations under the Purchase Agreement without the prior written consent of IRONPARK (which consent may be given or withheld in IRONPARK’s sole and absolute discretion). IRONPARK may assign its rights or delegate or cause to be assumed its obligations under the Purchase Agreement in IRONPARK’s sole and absolute discretion. Any attempted assignment, delegation or assumption not in accordance with this section will be null and void and of no force or effect whatsoever. The terms and conditions of the Purchase Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of IRONPARK and Customer. 
  • Survival. Any provision of these Terms which by its nature should survive cancellation of any Order will survive.
  • Waivers. The due performance or observance by IRONPARK and Customer of their respective obligations under the Purchase Agreement will not be waived, and the rights and remedies of such parties will not be affected, by any course of dealing or performance or by any delay or failure of either such party in exercising any such right or remedy. The due performance or observance by IRONPARK or Customer of any of its obligations under the Purchase Agreement may be waived only by a writing signed by the other party.