1. SCOPE. All products and services offered for sale by Swingset Factory Depot or its subsidiaries (hereinafter “Seller”) or through its distributors or sales representatives are sold subject to the terms and conditions stated herein. This offer expressly limits acceptance to the terms hereof and any additional, different or inconsistent terms reposed by Buyer, whether in writing or otherwise, are hereby objected to and rejected and Seller shall not be bound thereby unless expressly agreed in a writing signed by Seller that such terms and conditions shall supersede those contained herein. If you do not agree to these terms, you will not be able to purchase anything, so please review these terms carefully. Buyer agrees to the terms and conditions outlined in this agreement with respect to the goods, services and information provided by or through Seller, or www.swingsetfactorydepot.com. These terms and conditions constitutes the entire and only agreement between the Seller and Buyer, and supersedes any and all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the goods, services and information provided by or through the Seller or www.swingsetfactorydepot.com, and the subject matter of this agreement. Buyer agrees to review these terms and conditions prior to purchasing anything and the purchase of a good or service shall be deemed acceptance of these terms and conditions.
2. INTELLECTUAL PROPERTY. The Site and all of its content, features, and functionality are owned by SwingsetFactory Depot, LLC and are protected by international copyright, trademark, and other intellectual property and proprietary rights laws.
3. TERMS AND METHOD OF PAYMENT. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. Unless otherwise stated in the order acknowledgment, terms are payment in full at the time of order, and no merchandise will ship unless payment is received in full. Payment will be made by credit card, wire transfer, or other prearranged payment method. Buyer represents and warrants that (i) the credit card information supplied is true, correct and complete and (ii) charges incurred by the Buyer will be honored by the Buyer’s credit card company and (iii) Buyer shall pay charges incurred by Buyer at the amounts in effect at the time incurred, including all applicable taxes. Past due balances may be subject to a monthly service charge computed at a periodic rate (to the extent permitted by law) of one and one-half percent (1.5%) per month (18% per year) of the balance past due. Freight, discounts, and other allowances will be voided when invoices become past due.
4. TAXES. All prices quoted or accepted by Seller are exclusive of federal, state, municipal or other government excise, sales, use, occupational or like taxes, tariffs, customs, and all export duties and other export costs. Any and all of the foregoing taxes, duties, fees and costs shall be borne by Buyer. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee, which Seller pays or is required to pay or collect upon sale or delivery of products. Such taxes, duties, fees and costs, when applicable to sales or to the product, will appear as separate additional items on the invoice to Buyer. Any tax exemption certificate or similar document or proceeding required to exempt the sale of products from sales or use or other tax liability shall be obtained by Buyer, at its expense, and shall be provided to Seller prior to delivery.
5. BUYER CANCELLATION, RETURN AND BILL BACK PROVISIONS.
1. Cancellations: Any request for order cancellation, rescheduling or modification by Buyer must be made in writing and such action must be approved in writing by an authorized agent of Seller. Such request should be made to Seller at least one (1) day from scheduled shipment date in order to be considered. In the event of cancellation, Buyer shall have no rights in partially completed goods. Seller, in its sole discretion, may accept or reject a request for order cancellation or modification and Buyer shall have no rights to cancel any firm order. Notwithstanding anything contained herein to the contrary, for non-standard products, built to Buyer’s specifications or pursuant to Seller’s design, Buyer shall have no right to cancel or reschedule the delivery of any such non-standard products.
2. Returns: Any request for product return by Buyer must be made in writing. Returns of products will not be accepted for any reason without prior written consent of Seller and issuance on a Return Merchandise Authorization number (RMA). Once the merchandise has shipped, returns are only eligible within 7 days of the receipt of the product by the Buyer. The merchandise must be unused, and in the original shipping boxes and packaging to be eligible for a refund. The customer is responsible for return shipping fees, and any shipping fees incurred by Seller for the initial shipment to the Buyer; collect shipments will not be accepted. Free shipping only applies when the Buyer keeps the merchandise. If authorization is granted, unless the returned product is covered by the limited warranty provided herein, Buyer shall pay Seller a restocking fee equal to 20% of the current list price for standard products for each product(s) returned, in addition to shipping charges incurred to and from the customer. The RMA paperwork shall specify any additional terms and conditions upon which returns may be made. Buyer shall not return merchandise without first obtaining an RMA number as stated herein. Returns made without obtaining prior authorization shall be returned to sender at Buyer’s expense. Except as provided for in Seller’s limited warranty to Buyer, Seller, in its sole discretion, may accept or reject any request by Buyer to return product for cash or credit. Notwithstanding anything contained herein to the contrary, Buyer shall have no right to return non-standard products, built to Buyer’s specifications or pursuant to Seller’s design.
3. Bill Back: Prices indicated are based upon quantities ordered. If, through no fault of Seller, the total quantity ordered is not purchased during the scheduled delivery period, in addition to any other rights available to Seller (including enforcement of the original agreement to purchase) Seller may “bill back” Buyer and Buyer shall pay Seller an amount equal to the difference between the unit price for the quantities actually purchased and the unit price for the quantities originally ordered. The unit price is the price in effect on the date of the original order.
6. CANCELLATION BY SELLER. Upon the occurrence of any of the following events, Seller shall have the sole and absolute right to cancel all of any portion of the products ordered pursuant hereto, without any liability to Buyer thereof: (i) Buyer makes a general assignment for the benefit of creditors or admits in writing any inability to pay its debts as they mature or takes advantage of, or files under any federal, state or foreign insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition thereunder, or any proceeding is filed or commenced against Buyer, under any insolvency statute or law which is not stayed and dismissed promptly or any substantial part of the properties of Buyer are placed in the control of a receiver, custodian, trustee or similar official, or Buyer consents to the appointment there of; (ii) if Seller is prohibited by any cease and desist order, injunction or other valid order, decree, process of law, or restraint from shipping, selling, exporting, importing, or distributing any products pursuant to the terms hereof. Seller shall have no liability on account of exercising its right to cancel hereunder.
7. SHIPMENTS, PASSAGE OF TITLE AND LIABILITY FOR LOSS. For all shipments to the domestic 48 continental and contiguous United States, product shall be shipped by common carrier. For all shipments to shipping points outside the 48 continental and contiguous United States, product shall be shipped Incoterms 2000 FCA Seller’s facility. All references in any quote or order acknowledgment from Seller to FCA shall mean the definition of FCA recognized in Incoterms 200. Title to the products and risk of loss or damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the products to a common carrier for shipment to Buyer, regardless of whether Seller will install or supervise the installment of the product. Products held or stored by Seller for Buyer shall be at the sole risk of Buyer, and Buyer shall be liable for the expense to Seller of holding or storing products at Buyer’s request. In the absence of specific shipping instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be collected, or if prepaid, will be subsequently invoiced to Buyer. Unless otherwise indicated, Buyer is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced to Buyer. Shipping dates are approximate. All products will be scheduled for shipment in accordance with Seller’s applicable shipment sequence and Seller will confirm in writing, and amend as appropriate, the shipment schedule. Seller reserves the right to make deliveries of product in installments and the contract shall be severable as to each such installment. Under no circumstance shall Seller be liable to Buyer for any delay either in shipment or in delivery. Buyer shall give Seller notice within three (3) days after delivery of any incomplete deliveries.
8. LIMITATION ON LIABILITY. SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED IN AMOUNT TO THE NET PURCHASE PRICE OF THE PRODUCTS SOLD TO BUYER BY SELLER HERE UNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION TO LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY WHICH MAY ARISE OUT OF ANY THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
9. NO OTHER WARRANTIES. No employee or agent of Seller is authorized to make warranties about the products described in this agreement. ORAL OR WRITTEN STATEMENTS BY SELLER’S EMPLOYEES OR AGENTS, INCLUDING VIA EMAIL, DO NOT CONSTITUTE WARRANTIES, shall not be relied upon by Buyer, and are not part of the agreement of sale. The entire agreement of the parties is embodied in this writing and NO OTHER WARRANTIES are given beyond those set forth herein. Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
10. SALE CONVEYS NO LICENSE. The products are offered for sale and sold by Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Seller with respect to any inventions of Seller or others, patented or not patented, embodied in Seller’s products, processes, sales literature or manufacturing operations. Seller expressly reserves all its rights under such intellectual property rights. No manufacture to Buyer’s specifications entails ownership by or conveyance to Buyer of any property right in any invention.
11. REVERSE ENGINEERING. Buyer covenants that it will not attempt to “reverse engineer” or otherwise discover Seller’s intellectual property, patentable, patented or non-patented invention, trade secrets, secret processes, or other confidential information embodied or contained in Seller’s products.
12. CONFIDENTIAL INFORMATION. No information shall be deemed to be given or received in confidence by either party unless and to the extent it is covered by a separate written agreement. Buyer is responsible for the security of its own confidential information.
13. INSTALLATION. Seller assumes no obligation to install the products or to place them in operation at Buyer’s premises, unless specifically stated in writing and signed by an authorized agent of Seller.
14. EXPORTS. Buyer certifies that it will not export or re-export the products furnished hereunder unless it complies fully with all liens and regulations of the United States and any relevant foreign jurisdiction relating to such export or re-export, including but not limited to the Export Administration Act of 1979, as amended, and any applicable U.S administration rules and regulations. Buyer warrants that the country of destination noted on the purchase order and order acknowledgment and to which the products are to be shipped reflects accurately the real country of destination of the products.
15. DELAYS IN DELIVERY AND FORCE MAJEURE.Seller will make commercially reasonable efforts to meet any delivery date(s) quoted in the agreement. However, under no circumstance shall Seller be liable to Buyer for any delay in shipment or failure to meet any quoted delivery date(s) or for any delay in performance hereunder. Seller shall have the right to indefinitely postpone the time for delivery due to unforeseen circumstances or due to a cause beyond its control. Examples of such causes are acts of God, wars, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, strikes, transportation delays or shortages, inability to obtain material or supplies, excessive demand for products over available supply, interruption for any reason in the manufacture of products by Seller’s supplies, or other causes not within Seller’s control, whether of the class of causes herein before enumerated or not. Where only part of Seller’s capacity to perform is excused under this condition, Seller shall attempt to allocate deliveries among its various customers in a commercially fair and reasonable manner. Where such allocation has been made, reasonable notice of the estimated quota available to Buyer shall be given.
16. NO WAIVER. The failure by Seller to enforce at any time any of the provisions of this agreement, or to exercise any election or option provided herein, shall not be a waiver and shall in no way be construed as a waiver of such provisions or options, nor in any way be construed to affect the validity of this agreement or any part thereof, or the right of Seller thereafter to enforce each and every such provision.
17. ATTORNEYS’ FEES. Reasonable attorneys’ fees and costs shall be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement or any request for shipment release issued and accepted under the terms and conditions of this agreement.
18. GOVERNING LAW. The parties acknowledge and agree that any offer and acceptance by the parties shall be a contract made in the United States, State of Illinois . All questions pertaining to the validity, construction, execution and performance of this agreement shall be construed and governed in accordance with the domestic laws of the State of Illinois , without giving effect to principles of (i) comity of nations or (ii) conflicts of law. If the products purchased hereunder are purchased by a Buyer residing in a country other than the United States, then the parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from this agreement.
19. BINDING ARBITRATION. In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The Parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this agreement or otherwise, and any claim or dispute related to this agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association, under the Arbitration Rules then in effect, and the venue shall lie in Madison County, Illinois . Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction.
20. LIMITATIONS OF ACTIONS. No action for breach of the contract for sale of products shall be commenced more than one (1) year after the accrual of the cause of action there to.
21. ASSIGNMENT. Buyer shall not assign this agreement or any interest herein, or any rights hereunder, without prior written consent of Seller. Any such assignment or delegation without Seller’s prior written consent shall be null and void, and of no effect.
22. HEADINGS. The headings contained in this agreement are for convenience of reference only and shall in no way define or limit the provisions hereof.
23. ENTIRE AGREEMENT AND MODIFICATION. This writing constitutes the final expression of the parties’ agreement, and it is a complete and exclusive statement of the terms of that agreement. This agreement shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the agreement by its express terms. Furthermore, it is expressly agreed that a party’s acceptance of or an acquiescence in a course of performance hereunder shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that party is aware of the course of performance and has an opportunity to object to it. Any modification of the terms herein shall be effective only when embodied in a written agreement signed by Seller.
24. SEVERABILITY. If any term or condition of this agreement is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof.
25. NO INDEMNIFICATION. Unless otherwise expressly provided in writing signed by both parties, Seller does not indemnify, nor does it hold Buyer harmless, against any liability, losses, damages and expenses (including attorney’s fees) relating to any claim whatsoever, including without limitation, claims for personal injuries, death or property damage related to the products sold hereunder.
26. SURVIVAL. This Section 25 and the provisions of Sections 1, 2, 4, 5, 7, 8, 9, 17, 19, 22 and 24 shall survive the cancellation and termination of this agreement and sale of any product by Seller.
27. BUYER’S UNDERSTANDING. Buyer represents and warrants: (A) that it has read and understood these terms and conditions, and (B) that these terms and conditions are fair and reasonable to Buyer.