NORTH TRAMPOLINE, INC. (TRADING AS CAPITAL PLAY) SALES TERMS AND CONDITIONS
The following Terms and Conditions (“Terms”) are applicable to all sales made by North Trampoline, Inc. (Trading as Capital Play), a company organized in the state of Delaware whose registered office is located at 250 Little Falls Drive, Wilmington, DE 19808 (“Seller”), to the buyer (“Buyer”), and the acceptance of any order is expressly conditioned upon Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller.
All sales are subject to written acceptance by Seller and Seller reserves the right to reject any order for any reason, or no reason at all, in its sole discretion. Buyer must respond to Seller’s written acceptance within twenty-four (24) hours of receipt of such acceptance if it wishes to cancel the order or: (i) Buyer will waive its right to cancel the order and (ii) Buyer will be deemed to have accepted these Terms. If Buyer cancels an order that has already been packed and prepared for shipment, a fee of twenty dollars ($20) covering the processing costs will be charged to Buyer.
Any quotations or tenders are noncommittal and non-binding in nature. The information on Seller’s catalogs, circulars, advertisements, and price lists are mentioned only as general information, are only approximate, and shall not bind Seller. No contract shall arise until a written acknowledgment from Seller accepting Buyer’s purchase order, is sent by Seller to Buyer. The price of the goods are as set forth on Seller’s website. Prices may change and the applicable price is that shown on the day on which Buyer’s order was placed.
Unless otherwise specified by the parties in writing, the goods will be delivered to Buyer’s address listed in the purchase order. Buyer shall bear the risk of loss or damage to the goods during shipment. The method and agency of transportation and routing will be designated by Seller. In the event Buyer requests alternative shipment or routing, the resulting alternative packing, shipping and transportation charges will for Buyer’s account and Buyer shall bear all risk of loss or damage during shipment.
Any specific shipping date designated in writing signed by Seller shall be interpreted as estimated and shall not be construed as falling within the meaning of “time is of the essence”. Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays regardless of whether such delays are due to force majeure or otherwise. Under no circumstances shall Buyer or Buyer's customer be entitled to any damages for Seller's failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on Seller's failure to deliver timely.
If Buyer does not accept or pick up the goods at the date specified in the order or later agreed to by Seller, the delivery of the goods shall nevertheless be deemed accepted by Buyer who shall therefore pay for the goods delivered. The storage of the goods arranged by Seller will be at the risk and expense of Buyer. Seller shall further be entitled, to the exclusion of any other remedy for Buyer’s failure to take the goods, to recover any expenses properly incurred in performing the contract and not covered by payments received for the goods delivered.
Unless otherwise agreed by the parties in writing, payment for the goods shall be received by Seller in full prior to delivery of the goods. Unless otherwise stated in writing by Seller, the price includes any present or future federal, state or local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms or the goods.
In the event payment does not clear, interest shall be due at the rate of one and one half percent (1.1/2%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver goods or otherwise suspend its obligations to Buyer completely and/or not perform them if Buyer is past due on any of its debts to Seller. Furthermore, unless otherwise agreed, Seller shall have the right to retake all goods immediately if Buyer is past due on payment. Buyer agrees to make all goods available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to retake the goods. Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including, but not limited to, interest, late charges, and costs of collection.
Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer.
Unless Seller receives a written complaint with full particulars from Buyer regarding any defective goods or other complaints within thirty (30) business days from the date the goods are delivered, the goods shall be deemed to have been delivered in good condition and that the delivery is accepted. Acceptance by Seller of any returned goods does not imply acknowledgment by Seller of the reason for the return. Goods returned by Buyer to Seller will remain at Buyer's risk and Buyer will owe the agreed payment amounts until Seller has credited Buyer for the goods. If the goods are returned to Seller, in a condition deemed acceptable by Seller, the entire amount of the original order will be refunded to Buyer after inspection of the goods by Seller. If the goods have been used intensively and more than is necessary to obtain a basic understanding of the function or properties of the goods, Buyer must bear the costs of any impairment of the goods that has been created in Buyer’s possession.
If the return is for large goods that cannot be sent back to Seller by post and requires delivery by a delivery company, Seller’s customer service will assist Buyer with the return arrangement. Buyer shall be responsible for the cost of returning the goods. Buyer shall contact Seller’s customer service via email at firstname.lastname@example.org
Prior to returning the goods, Buyer shall complete Seller’s returns form online at Seller’s website.
VII. LIMITED WARRANTY; DAMAGES
Seller warrants, for twelve (12) months after delivery, unless indicated to the contrary, that the goods, covered by this contract are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall be free from defects in design, material, workmanship and shall conform to Seller’s specifications. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. Goods showing only minor defects, not affecting the function of the goods or program shall be accepted by Buyer and shall not give rise to any claim against Seller. All claims of damages of any kind during delivery are barred unless reported in writing by Buyer to Seller, with full disclosure of particulars within five (5) days after delivery as defined herein.
Except as otherwise provided for herein, Buyer and any parent, subsidiary, affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “indemnifying parties”) assumes liability for, and shall pay when due, and shall indemnify, reimburse and hold Seller, and its parent, subsidiary, affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “indemnified parties”) harmless from and against any and all Claims (defined below), directly or indirectly relating to or arising out of the acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of the goods (regardless of whether the goods are at the time in the possession of the indemnifying parties), the falsity of any representation or warranty of Buyer, or Buyer’s failure to comply with these Terms. The foregoing indemnity shall cover, without limitation, any claim for negligence, gross negligence, or liability in tort.
“Claims” means any and all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature and all costs and expenses whatsoever to the extent they may be incurred or suffered by the indemnified parties in connection with the goods (including, without limitation, reasonable attorneys’ fees and expenses), fines, penalties (and other charges of applicable governmental authorities), damage to or loss of use of property (including, without limitation, consequential or special damages to third parties or damages to Buyer’s property), or bodily injury to or death of any person(s) (including, without limitation, any agent or employee of Buyer, user of the goods, or any other person).
All intellectual property rights to, ownership of, and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by Seller hereunder or within the framework of the relationship between Buyer and Seller (the “Intellectual Property”) are vested exclusively in Seller. Buyer shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Terms. Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from goods and other materials created or made available by Seller to Buyer. Seller makes no warranty that the goods or services or other intellectual property of Seller does not infringe the rights of third parties.
Seller shall not be liable with respect to Buyer for any damages arising from suspension or termination of the contract for the aforementioned reasons. If the contract is suspended or terminated, performance of the contract already received by Buyer and the payment obligations of Buyer in connection therewith, shall be unaffected. The amounts invoiced by Seller for worked actually performed prior to or upon termination of the contract, will be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section.
These Terms and all transactions between Seller and Buyer shall be governed by the laws of the State of Delaware in the United States, without reference to conflict of laws principles. In the event of a dispute arising from or relating to these Terms or any goods sold thereunder, the parties agree to personal exclusive jurisdiction in the state and federal courts located in Chicago, Illinois. The parties agree to waive any right they might have otherwise had, but for this section, to file a motion to dismiss for lack of personal jurisdiction or forum non conveniens relating to the federal and state courts located in Chicago, Illinois.
XII. ENTIRE AGREEMENT
These Terms constitute the sole terms and conditions of the contract between Buyer and Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon Seller, unless hereafter made in writing and signed by Seller's authorized representative.
Should any provision of these Terms be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any such severed provision to bring the same within applicable legal requirements to the greatest extent possible.
Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of Seller. Seller shall expressly be permitted to assign or transfer, without the prior written consent of Buyer, Seller’s rights and obligations under these Terms.