TERMS AND CONDITIONS OF SALE
This Terms and Conditions of Sale Agreement, including any exhibits attached hereto (the “T&C Agreement”) is a contract between the purchaser __________________________ including its successors, assigns, agents and representatives (hereinafter “You” or “Buyer”) and Milestone Creations, LLC.(“Milestone Creations”). Read the terms and conditions set forth herein fully and carefully. If Buyer does not agree to be bound by the terms and conditions set forth herein, or in any other policy or agreement of Milestone Creations, do not purchase goods through or utilize the services of Milestone Creations. This T&C Agreement contains a binding mediation provision which affects your legal rights and may be enforced by the Parties to this agreement as defined herein below.
ARTICLE I. GENERAL
1. Authority. The parties to the T&C Agreement include Buyer and Milestone Creations (the “Parties”). Each of the Parties to this T&C Agreement hereby acknowledge that they have the requisite authority to enter into and to bind the respective Parties hereto, including the respective Parties’ agents, officers, directors, members, shareholders, investors, lenders, heirs, successors, representatives, and assigns.
2. Goods and Services of Milestone Creations. Milestone Creations offers for sale a variety of goods, which include but are not limited to playgrounds, and amusement rides (the “Goods”). In addition, Milestone Creations also offers certain services, which include architectural and design consultation sessions, product support, and/or arranges a contractor to perform the installation of certain Goods that are ordered (the “Services”).
3. Manufacturers. The Parties hereby agree and understand that Milestone Creations is not always the manufacturer of the Goods it sells, including all Goods bearing the name Kidsteam. The Parties further understand and agree that Milestone Creations is a separate entity from the manufacturers of such Goods and any warranty provided by the manufacturer is separate and distinct from any warranty that may be provided by Milestone Creations. Milestone Creations is not responsible, liable, or otherwise obligated for the failure of any Good or to fulfill any manufacturer warranty or manufacturer obligations. It is Buyer’s sole responsibility to contact the manufacturer regarding matters pertaining to the manufacturer’s warranty or potential claims related to such Goods, if any. Should Milestone Creations choose to assist Buyer in resolving an issue regarding the warranty provided by a manufacturer, the Parties agree that such assistance does not create or place upon Milestone Creations any further obligation or duty, including an obligation or duty for Milestone Creations to assume or otherwise fulfill the manufacturer’s obligations under the warranty, nor does such assistance constitute a waiver by Milestone Creations.
a. Specifications of Goods. Manufacturers provide product specifications, including but not limited to measurements, dimensions, weight, color, which are approximate estimates and are not representations of the exact specifications of the Goods. Upon information and belief, the Milestone Creations believes that such estimates are within industry tolerances.
ARTICLE II. ORDERING AND SHIPMENT OF THE GOODS
1. The Order. Notwithstanding any statements or assertions prior to this T&C Agreement, Buyer hereby agrees and understands that the Goods and/or Services ordered are expressly limited to the items specifically set forth in the written order, and any further modifications thereto (the “Order”). The Order expressly does not include any flooring that may be required or recommended by the manufacturer, ASTM or state or federal law. Buyer further acknowledges and agrees that a true and correct copy of Buyer’s Order is attached hereto as Exhibit A.
a. Review of the Order. By signing the Order, Buyer acknowledges that it has read the Order and the T&C Agreement and agrees accepts the content therein. Unless agreed on in writing and signed by Milestone Creations, this T&C Agreement is exclusive and in lieu of all other terms and conditions that may otherwise apply and further applies to all quotations made and orders accepted by Milestone Creations. Milestone Creations is not responsible for typographical or clerical errors made in any quotations, orders or Milestone Creations publications.
b. When Order is Placed. Milestone Creations places the Order with the manufacturer upon Milestone Creations’s receipt of the Order fully executed by the Buyer and the Initial Payment (as defined in Article III, Section 1(a)) (the “Order Placement”). Buyer hereby expressly understands and agrees that in no event shall production of the Order commence until all payment obligations under Article III, Section 1(a) have been met. The Parties further hereby agree that fifty-percent (50%) of the price of the Order is deemed fully earned and nonrefundable upon the Order Placement.
c. Modifications to Order. If Buyer desires to make changes or modifications to the Order, such changes may affect the price of items included in the Order and/or the price of the Order itself. Buyer understands and agrees that any modifications to the Order may subject Buyer to additional fees (“Modification Order Fees”) and/or to change order fees, in an amount dependent upon the nature and scope of the modification to the Order (the “Change Order Fees”). No modifications can be made to the Order upon the expiration of 30 days from the date of the Order Placement. In the event the Order is reduced and the original price of the Order is decreased, Milestone Creations may retain the excess and apply it toward the Remaining Balance of the Order and/or as a reserve for potential expenses, including but not limited to overruns in freight, shipping, delivery and/or installation of the Goods. After final installation and acceptance by the Buyer, the excess, if any shall be returned to Buyer.
d. Freight Added to Order. Buyer understands and agrees that all freight, shipping, storage and delivery charges related to delivering the Goods in the Order to the Installation Site, but not included in the Order or otherwise paid by Buyer will be subsequently added to the Order and shall be due and payable at the time the Final Payment (as defined in Article III, Section 1(b)) becomes due (the “Additional Freight Charges”). If the expense is incurred subsequent to Buyer making the Final Payment for the Order, the Additional Freight Charges are due within ten (10) days’ notice of the invoice from Milestone Creations for such expense.
2. Shipment of the Order. Because Buyer agrees to indemnify and hold Milestone Creations harmless for the shipping, freight, storage and delivery fees related to delivering the Goods in the Order to the Installation Site, Buyer shall designate whether shipment of the Order, or any portion thereof, is to be by air, ground or sea. Buyer understands and agrees that it is solely responsible for such expense and agrees to indemnify and hold harmless Milestone Creations for any expenses incurred in the freight, shipment, delivery, and/or storage of the Order, or any portion thereof. All shipments of the Order, or any portion thereof are F.O.B. Origin, Freight Prepaid & Allowed & Charged Back unless otherwise stated on the front of the invoice.
- Risk of Loss. Upon the latter of the manufacturer’s delivery or Milestone Creations’s delivery of the Order, or any portion thereof, to the carrier, Buyer hereby expressly and knowingly accepts all risk of loss. Buyer may choose, at its sole discretion, to insure the shipment of the Order. If Buyer desires to place insurance on the Order at the time of Order Placement, the Parties may agree to include the expense thereof in the Order. If Buyer chooses to purchase the insurance after the Order Placement, but before the Order has been shipped, in Milestone Creations’s sole discretion, Milestone Creations may agree to add the insurance expense to the amount due at Final Payment. Milestone Creations assumes no responsibility for valuing the Goods in an Order. The value of the Goods contained in an Order, or any portion thereof, is fairly represented by the Order, which contains an itemized invoice of the value of each of the Goods and/or Services included in the Order.
- Default Shipping Method. If Buyer does not specify a preferred method of shipment, Milestone Creations shall exercise sole discretion in selecting a method of shipment (e.g. air, ground, sea). For informational purposes only, Milestone Creations generally uses major common carriers and delivery services and, for foreign orders, freight forwarders. Milestone Creations generally ships freight collect, unless Buyer requests other arrangements and prepays Milestone Creations for all shipping expenses. The Parties hereby expressly agree that Milestone Creations has no obligation to ship any Goods or any portion of any Order by air or other expedited manner. In Milestone Creations’s sole discretion and subject to Buyer prepaying the estimated or actual expense, Milestone Creations may ship using an expedited method such as air.
- Shipment Expenses. All costs and expenses relating to shipment, including insurance, customs expenses, duties, taxes, etc. shall be the sole responsibility of Buyer. Any Additional Freight Charges that were not included in the Order at the time of Order Placement shall be due in accordance with Article III.
- Partial Shipments. Partial shipments of the Order from Buyer may be made by Milestone Creations to facilitate the earliest possible delivery of the any or all of the Goods in the Order and are subject to the terms of this Agreement as though it constituted the entire Order. Partial shipment shall not be made unless Milestone Creations has been paid in full for the entire Order. Notwithstanding the foregoing, in Milestone Creations’s sole discretion, Milestone Creations may commence a partial shipment of the Order if Milestone Creations finds it in its interest to do so. If Milestone Creations chooses to make a partial shipment of the Order, title to such portion of the Order shall pass to Buyer upon the delivery of such portion of the Order as contemplated in F.O.B., Origin, Freight Prepaid and Added, thus creating an obligation upon Buyer for payment and/or reimbursement, as specified by Milestone Creations, for taxes, customs, duties, shipment or freight, and any other expenses associated therewith, to the extent such amounts were not paid in advance or upon Order Placement. The time period to make such payment or provide such reimbursement is set forth in Article III.
- Shipment Date is Projected. The date provided to Buyer for shipment of the Order (or any portion thereof) is an estimate or projected date (the “Projected Shipping Date”), not a guarantee or warranty of any nature whatsoever. Milestone Creations does not warrant or guaranty shipment by the Projected Shipping Date. Buyer hereby expressly understands and agrees that any and all arrangements, activities, events, or contingencies based upon the Projected Shipping Date are at Buyer’s sole risk and further agrees to hold Milestone Creations harmless for the Order, or any portion thereof, not actually being shipped on or by the Projected Shipping Date. Milestone Creations will attempt to notify Buyer of the actual shipping date once the Order, or any portion thereof, is shipped, as well as of any changes to the Projected Shipping Date.
3. Delivery. Upon delivery of the Order or any portion thereof to the Installation Site, Milestone Creations will have its subcontractor at the Installation Site within a reasonable time to commence installation of the Goods contained in the Order, unless such Service was not included in the Order. Delivery of the Order will require that sufficient space, cleanliness and site preparation be completed beforehand. Failure to make the space required for delivery of the Order to be completed may result in additional fees, including but not limited to storage fees for the Order while the Installation Site is prepared for installation.
a. Delivery Date is Projection. The date provided to Buyer for delivery of the Order (or any portion thereof) is an estimate or projected date (the “Projected Delivery Date”), not a guarantee or warranty of any nature whatsoever. Milestone Creations does not warrant or guaranty delivery by the Projected Delivery Date. Buyer hereby expressly understands and agrees that any and all arrangements, activities, events, or contingencies based upon the Projected Delivery Date is at Buyer’s sole risk and further agrees to hold Milestone Creations harmless for the Order, or any portion thereof, not actually being delivered on or by the Projected Delivery Date. Milestone Creations will attempt to notify Buyer of changes to the Projected Delivery Date.
4. Acceptance. Milestone Creations is not responsible for typographical or clerical errors made in any quotations, estimates, bids, advertisements, publications or in the Order. Buyer has reviewed the Order and represents that the Order is free from any errors or omissions. In addition, Buyer understands and agrees to the terms and conditions set forth in this T&C Agreement, including any and all terms and conditions set forth in Exhibit A, unless otherwise agreed in writing and signed by Milestone Creations. In reliance upon Buyer’s representations, Milestone Creations hereby accepts and confirms the Order for the Goods and Services described in Exhibit A. These terms and conditions are exclusive and in lieu of all other terms and conditions appearing on Buyer’s Order or elsewhere and apply to all quotations made and orders accepted by Milestone Creations, unless specifically stated to the contrary on the face of this confirmation of order.
ARTICLE III. PAYMENT TERMS AND FEES
1. Consideration. In consideration for the fulfillment of the Order of such Goods and Services, Buyer agrees to the terms and conditions set forth herein, including any other agreements incorporated by reference herein.
2. Payment Tranches. Payment on any Order shall be made pursuant to the following terms:
a. Initial Payment. Buyer must place a standard non-refundable payment in an amount equal to fifty-percent (50%) of the Order at the time it is submitted to Milestone Creations for placement (the “Initial Payment”). Milestone Creations will not place the Order with the manufacturer until the Initial Payment has been made pursuant to this subsection. Initial Payments made methods other than by cash or certified funds will be considered paid as follows:
i. Time of Payment. The time the Initial Payment is made, and therefore the time that the Order is placed with the manufacturer depends upon the method of payment. Buyer hereby agrees that any processing fee, returned check fee, convenience or other fee incurred by Milestone Creations for accepting payment from Buyer shall be reimbursed to Milestone
Creations in full within ten (10) days of receipt of notice from Milestone Creations that such fee has been incurred.
- (I) Payment By Money Order; Personal or Business Check. Payment will be deemed paid upon receipt of the check and deemed paid upon the check clearing the applicable financial institution(s) and the funds being available in Milestone Creations’s account. Milestone Creations has the right to refuse to accept payment by money order, personal check or business check, in its sole discretion.
- (II) Payment by Credit, Debit, Gift, or other Charge Card. Payments made by credit, debit, gift, or charge card are deemed earned and paid when the period to chargeback the Initial Payment has expired. Alternatively, if the Buyer agrees to not initiate any chargeback proceedings, by initialing the following paragraph, payment shall be deemed earned and paid upon receipt of the funds in Milestone Creations’s account. Milestone Creations has the right to refuse to accept payment by credit, debit, gift or other charge card, in its sole discretion.
ii. Application of the Initial Payment. Buyer agrees and understands that (except for the portion of the Initial Payment applied to freight, shipping, storage, and delivery of the Goods in the Order) the Initial Payment shall be applied to pay fifty-percent (50%) of each of the Goods and expenses set forth in the Order. Accordingly, Buyer understands that at the time of Order Placement, Buyer has not fully paid for
b. Remaining Balance. The remaining balance (“Remaining Balance”) is due as soon as possible and prior to the Projected Shipping Date. To the extent Goods in the Order are held in Milestone Creations’s inventory, payment in full is required before the item will be shipped. Shipments will not be made C.O.D. Milestone Creations reserves the right to refuse to initiate the manufacture or shipment of any Good unless and until payment in full is first received whenever, in the sole discretion of Milestone Creations, there is doubt as to Buyer’s ability to pay. In any event, the Remaining Balance must be paid in full within six (6) months of the date of the Order Placement, including any and all additional fees (i.e., Shipping Fees, Modification Fees and Expenses, Change Order Fees, Convenience Fees, etc.). Failure to pay the remaining balance by such time terminates the T&C Agreement and Milestone Creations is permitted to keep the Initial Payment, plus any other amounts paid, unless the Parties otherwise agree in a writing signed by both Parties.
3. Modification Fees and Expenses. The price and value of the Order are subject to adjustment if Buyer requests changes in specifications, quantities, delivery requirements, or installation. This Agreement shall apply to the Goods to which such changes apply, and no modification of the terms and conditions hereof shall be binding on manufacturer and/or Milestone Creations unless such parties sign a writing stating that such terms are being modified and the nature of such modification. The Order cannot be changed upon the expiration of thirty (30) days from the date of the Order Placement.
4. Installation Fees and Expenses. Unless expressly stated in the Order, the Order does not include the expense of installing the Goods purchased by Buyer in the Order (the “Installation Fees and Expenses”). Buyer further understands that Milestone Creations contracts the installation labor to its preferred installers to perform the labor and purchase materials. Buyer understands and agrees that the estimated Installation Fees and Expenses are based upon Milestone Creations’s reliance upon prior estimates and is subject to change depending upon the facts and circumstances of the Additional expenses may be incurred during installation if the conditions of the Installation Site require removal of items, repairing or correcting flooring and/or other Installation Site defects that prevent or hinder the proper and timely installation of the Goods in Buyer’s Order.
- Installation. Milestone Creations’s estimate for installation of the Goods in Buyer’s Order assumes a facility, site or location (the “Installation Site”) is prepared for installation of the Goods and contains adequate access, ease of entry to space, adequate work area and access to work area that is uninterrupted during typical work day. Milestone Creations does not include the price and/or labor expense for flooring in its bid or in the Order (defined below). Additional expenses may be incurred during installation if the conditions of the Installation Site require removal of items, repairing or correcting flooring and/or other Installation Site defects that prevent or hinder the proper and timely installation of the Goods in Buyer’s Order.
- Flooring. Manufacturers of the Goods generally recommend flooring consistent with American Society for Testing and Materials (“ASTM”) for the Goods. Milestone Creations can provide Buyer supplier information from companies with approved products. Please be advised that lack of proper flooring is the leading cause of injuries for children in play areas and manufacturers recommend that the customer install appropriate flooring to safely use and operate its Goods.
5. Flooring. Certain manufacturers and Milestone Creations recommend that flooring used in connection with the Goods comply with ASTM. Accordingly, if Buyer chooses to purchase flooring to comply with ASTM, such expense is not contemplated nor included in the Order. Milestone Creations does not include the price and/or labor expense for flooring in its bid or in the Order. If Buyer is interested in purchasing ASTM compliance flooring or other flooring to be used in connection with the Goods, Buyer shall inform Milestone Creations at the time the Order is placed to potentially avoid Buyer incurring additional Installation Fees and Expenses due to the Installation Site not being prepared at the time of the delivery of the Order.
6. Taxes. All charges are subject to the international, federal, state and local taxes, if any, pertinent at the point of delivery. Buyer shall pay all such taxes, levies, fees imposed on the Order, as well as any and all penalties and interest.
7. Financing Information. Milestone Creations has the right to request, and Buyer shall comply with such request, documentation demonstrating that Buyer has the financial capital, ability to pay and/or financing available in an amount equal to the value of the Order, including any modifications thereof. If Buyer fails to provide the requested documentation in a timely manner, Milestone Creations has the right, in its sole discretion to cancel the Order or to modify percentage required for the order to be placed in an amount of up to one-hundred percent (100%) of the Order, including any modifications.
ARTICLE IV. SPECIFICATIONS FOR GOODS AND INTELLECTUAL PROPERTY
- Ownership of Certain Intellectual Property. Trademarks, logos, product names, literature, artwork, designs, and photographs are exclusively owned by Milestone Creations. Any use of any of these items without Milestone Creations express written consent may constitute copyright infringement, trade dress, or other infringement upon Milestone Creations intellectual property rights which may subject such entity or person to liability.
- No Warranty Against Infringement. Milestone Creations makes no warranty that the Goods or Services will be delivered free of the rightful claim of any third party by way of infringement or the like. If Milestone Creations determines, in its sole discretion, that making, using, or selling any of the Goods would result in the infringement of any patent or other intellectual property right or another or itself, Milestone Creations reserves the right to cease offering and/or shipping the Good, without liability to Buyer.
ARTICLE V. LIMITATION OF LIABILITY AND INDEMNIFICATION
- General. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE GOODS AND SERVICES PROVIDED BY MILESTONE CREATIONS OR ITS AFFILIATES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND AND WITH ALL FAULTS.
- Disclaimer of Warranties. MILESTONE CREATIONS DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS FOR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANSHIP, WORKMANLIKE EFFORT, COURSE OF DEALING OR TRADE, LACK OF NEGLIGENCE, ACCURACY, NON-INTERFERENCE, TITLE, OR ANY WARRANTY ARISING UNDER STATUTE.
- No Warranties Created. STATEMENTS, INFORMATION OR ADVICE PROVIDED BY A MILESTONE CREATIONS REPRESENTATIVE TO YOU SHALL NOT CREATE A WARRANTY WITH RESPECT TO SUCH STATEMENT, INFORMATION OR ADVICE. MILESTONE CREATIONS SHALL NOT BE LIABLE FOR YOUR USE AND RELIANCE ON INFORMATION OR CONTENT AVAILABLE ON ITS WEBSITES, ADVERTISEMENTS OR OTHERWISE, THROUGH THE GOODS OR SERVICES
4. Assumption of Risk. YOU HEREBY ASSUME THE RISK ARISING OUT OF THE USE, QUALITY, AND PERFORMANCE OF THE GOODS AND SERVICES. FURTHER, MILESTONE CREATIONS DOES NOT WARRANT THE SAFETY OF THE GOODS AND SERVICES NOR THAT THE GOODS AND SERVICES WILL BE FREE OF ERROR OR DEFECT.
5. No Reliance. INCLUDING VIRUSES OR ANY OTHER CODE THAT MANIFESTS UNSAFE, OR DESTRUCTIVE PROPERTIES WHICH MAY HAVE BEEN OR WERE IN FACT OBTAINED VIA MILESTONE CREATIONS’S GOODS OR SERVICES.
6. Limited Warranty. Any limited warranty provided to the Buyer by the manufacturer of the Good shall have a term which is clearly outlined in the product description next to the Good on a Milestone Creations website or in Milestone Creations printed materials commencing on the date of Delivery (the “Product Description”). If the Product Description for a Good does not contain warranty information for that Good, there are no warranties for that Good, express, implied, or otherwise. Milestone Creations, will to the extent that it can legally and contractually do so, assign to Buyer, at Buyer’s request, all warranties on the Good(s) contained in the Order, if any, offered by the manufacturer or supplier of such Good(s).
a. Ordinary Wear and Tear. Generally, ordinary wear and tear of a Good will not invalidate any Good’s limited warranty. However, misuse, improper handling or storage, improper repairs, improper maintenance and care, or accidental, abusive or negligent treatment of the product will invalidate any limited warranty which the product may carry. In addition, Milestone Creation’s belief is that the manufacturer’s limited warranty does not protect against or warrant that the Good will not through tears or punctures developed through use, handling and storage from time to time, the repair of which is the responsibility of Buyer. Whether such damage, tear or puncture was a result of ordinary wear and tear covered by the limited warranty is a determination to be made by the manufacturer in its sole discretion. Manufacturers may authorize or appoint Milestone Creations to serve as its agent for such purpose. Manufacturers may require that the logs and maintenance records Buyer is required to maintain be provided to assist in the review of any warranty claims. If such documents are not provided within five (5) business days of the request, manufacturers may, in its sole discretion, deny the applicability of the warranty and any repair expenses are the sole obligation of Buyer.
7. Inspection & Initial Use. Buyer agrees that under NO circumstances shall Buyer reserve, book or schedule rentals, events, or any other business activity which will involve, use, or depend upon purchased but undelivered Goods contained in the Order until such time as Buyer has physically received, inspected, tested and approved Goods and the installation thereof, re. Buyer shall inspect the Order and Goods promptly upon receipt and shall notify Milestone Creations in writing of any claims, including claims of breach of warranty, within seventy-two (72) hours after the later of: (i) the Order, or any portion thereof, being received by or delivered to Buyer or (ii) the Goods in the Order, or any portion thereof, being installed. After the installation of the Goods contained in the Order, or any portion thereof, Buyer is required to inspect the Installation Site and denote any issues that it sees during such inspection within seventy-two (72) hours of such installation. By inspecting the installation of Goods, and approving of such installation and the quality of the Goods, Buyer releases any claims it may have against Milestone Creations for breach of warranty.
a. Waiver of Claim by Use of Goods. Under NO circumstances shall Buyer commence in the rental and/or use of a Good for which Buyer wishes to submit a written claim upon initial inspection. If Buyer does use or rent out said purchased goods, this will constitute a waiver by customer of any right to submit any type of claim against said goods. Failure of Buyer to follow and adhere to the provisions set forth in this paragraph 6 will be deemed to be a waiver of a claim for defective products, a waiver of the right to reject the goods, and conclusive proof that the product(s) were received by Buyer without defect(s).
8. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL MILESTONE CREATIONS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, DELAY OR SPECIAL DAMAGES, LOSSES OR EXPENSES ARISING FROM THE ORDER, THIS T&C AGREEMENT OR MILESTONE CREATIONS OR BUYER’S PERFORMANCES OR NONPERFORMANCE, OR ANY ACTS OR OMISSIONS OF MILESTONE CREATIONS LLC., OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE GOODS FOR ANY PURPOSE WHATSOEVER. IN ANY AND ALL EVENTS, IF MILESTONE CREATIONS IS FOUND LIABLE FOR DAMAGES, NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN, MILESTONE CREATIONS SHALL NOT BE RESPONSIBLE FOR DAMAGES TO ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO BUYER AND BUYER’S EMPLOYEES, WORKERS, CONTRACTORS, CUSTOMERS OR PATRONS, FOR AN AMOUNT EXCEEDING THE AMOUNT PAID BY BUYER SOLELY FOR THE GOODS ORDERED AND CONFIRMED BY THIS T&C AGREEMENT.
9. Liability Insurance. Buyer agrees to carry general liability insurance with coverage limits of no less than $2,000,000.00 in connection with Buyer’s use of any Goods and/or Services purchased from Milestone Creations.
10. Use and Indemnification. Buyer is solely responsible for the manner of use of the Goods and Services purchased from or through Milestone Creations. Buyer is solely responsible for compliance with all laws, statutes, regulations, and common law, as well as all fencing, signage, labels, and warnings to consumers or other users of the Goods and Services, and or any and all other acts necessary, including user warnings and limitations (e.g. weight, height, age, number of participants, and medical condition limitations), to ensure the safety of the users and to comply with applicable laws. Buyer acknowledges that they received, read and fully understand all necessary instructions for the safe setup and operation of the Goods and Services purchased in the Order. Buyer agrees to operate their Goods and Services according to the instructions established in the Owner’s manual or listed on the Milestone Creations, including but not limited to maintaining each and every log as specified therein. Buyer agrees to operate their Goods and Services according to all of their state and local requirements. Buyer agrees to train any person(s) operating the product or device in the safe operation of the Goods and Services including safe handling of emergency situations. Buyer shall use stakes, tie-downs, and other applicable devices (e.g., fencing and track leveling) necessary to ensure the safety of the users and the general public. Buyer understands and agrees that it is recommended by the manufacturer and it should operate according to applicable ASTM safety requirements, in addition to state and local laws. Accordingly, Buyer agrees to indemnify, hold harmless and defend Milestone Creations and Milestone Creation’s contractors, insurers and suppliers from actions and claims of third parties, including Buyer’s employees, workers, contractors, customers, patrons, and any user of the Goods and Services sold to Buyer by Milestone Creations, arising out of or in connection with the Goods and Services herein described or resulting from the breach of the provisions in this T&C Agreement, including if such breach is due to Milestone Creation’s negligence. In the event Milestone Creations is required to commence an action to enforce this provision, Buyer shall pay all of Milestone Creation’s reasonable and necessary legal costs and expenses.
11. Effect of Breach on Risk of Loss. Breach of this contract by Milestone Creations shall have no effect on the provisions controlling the risk of loss of the Goods and/or Order.
ARTICLE VI. EXPRESS DISCLAIMERS
- General Disclaimer. THIS AGREEMENT OUTLINES MILESTONE CREATIONS’S OBLIGATIONS AND MILESTONE CREATIONS EXCLUDES ALL OTHER REMEDIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE AND CUSTOMS OF THE TRADE, WHETHER OR NOT SAID PURPOSES OR SPECIFICATIONS ARE DESCRIBED HEREIN. MILESTONE CREATIONS FURTHER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO BUYER OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY GOODS OR SERVICES, INCLUDING ANY GOOD WHICH HAS BEEN SUBJECTED TO MISUSE, LACK OF SUPERVISION, NEGLIGENCE, ACCIDENT, DAMAGE, MISAPPLICATION, MODIFICATION, IMPROPERLY INSTALLED, IMPROPERLY MAINTAINED, AND/OR REPAIR OR MODIFICATION BY PERSONS NOT AUTHORIZED BY THE MANUFACTURER.
- Disclaimer of Reliance. Buyer expressly disclaims any reliance on any representations, documents, statements, acts or omissions made by or through any representative, affiliate, agent, or principal of Milestone Creations, of any and all content, regarding the Goods or Services. Buyer further hereby acknowledges and agrees that it will inspect the Goods and Services and relies solely upon such inspection in determining whether to conduct business with Milestone Creations, enter into this TOS Agreement, keep the Goods and/or Services, and the extent and applicability of any all warranties.
ARTICLE VII. CANCELLATION, REFUND, AND RETURN POLICY
- Cancellation. Buyer may cancel this Order without additional cancellation fees in whole or in part, only upon written notice to Milestone Creations and only prior to the placement of the Order with the manufacturer, provided some or all of the goods have not already been shipped. Unless timely cancelled, Buyer shall be liable for the payment of cancellation charges, which charges shall be the sum of (1) the price of all goods that have been delivered and not previously paid for, plus (2) the actual cost incurred by Milestone Creations LLC. that is properly allocable to the goods not delivered at the time of decrease or cancellation, including, without limitation, the cost of components and materials purchased for use in producing such goods, plus (3) the profit, and reasonable overhead that Milestone Creations would have made from full performance by Milestone Creations LLC., plus (4) the costs of engineering, prototypes, testing, tooling, and similar items produced for Buyer, plus (5) the reasonable costs incurred by Milestone Creations LLC. in making settlement and effecting collection hereunder. In no event will the fee for Buyers ultimate cancellation of an order be less than ten percent (10%) of the total order, but no such cancellation fee will be imposed if Buyer complies with the first sentence of this Paragraph 12.
- Returns/Refund Policy. Milestone Creations LLC. does not accept returns and does not provide refunds. ALL SALES ARE FINAL AND AS-IS. Goods in an Order are not returnable other than for warranty repairs. Warranty repairs must be done at a specified Milestone Creations LLC. location. The return for warranty repairs can only be done with an accompanying RMA number and the signed warranty repair form. If the customer returns without the appropriate RMA number they will be charged the standard daily rental rate specified in SECTION 21 of the terms and conditions.
- Claims Under the Manufacturer Warranty. Buyer understands and agrees that Milestone Creations provides no warranties. In the event that any part of a Good or a Good fails in a manner contemplated by the warranty of the manufacturer, if any, (“Warranty Good”), Buyer agrees to first notify Milestone Creations to determine whether Buyer’s Warranty Good requires the formal transfer of any warranty held by Milestone Creations to Buyer (“Notification”).
4. Covered Warranty Goods. If Milestone Creations agrees that the Warranty Good and the method by which it failing is covered by the manufacturer’s warranty, Buyer shall send the Warranty Good it seeks to have repaired or replaced to Milestone Creations, at Buyer’s sole expense, via a method of tracked delivery (i.e. UPS, FedEx).
a. Replacement Warranty Good/Repairs. If Milestone Creations has an identical or substantially similar Good as the Warranty Good in its warehouse or otherwise available in a reasonable amount of time, Milestone Creations may, in its sole discretion provide Buyer with a replacement part or Good for the Warranty Good and elect to address the warranty issue with the manufacturer directly.
b. Repair of Warranty Good. Milestone Creations may, in its sole discretion, elect to engage an authorized repair entity to repair the Warranty Good and provide Buyer with such repair services (either for free or at a cost). In such event, Buyer agrees to send the Warranty Good as set forth in Article VII, Section 5(c) and to the potential consequences for failing to do so as set forth in Article VII, Section 5(d). If Milestone Creations chooses to repair the Warranty Good, Milestone Creations may, in its sole discretion, choose to send Buyer a replacement while the Warranty Good is being repaired (the “Temporary Warranty Good Replacement”). Buyer understands and agrees that upon receipt of the repaired Warranty Good, regardless of whether Buyer disputes the quality and nature of the repairs, Buyer shall return the Temporary Warranty Good Replacement to Milestone Creations such that the Temporary Warranty Good Replacement is received by Milestone Creations no later than ten (10) days from Buyer’s receipt of the repaired Warranty Good.
c. Sending Warranty Good to Milestone Creations. Regardless of whether the Warranty Good is being repaired or replaced, Buyer agrees to send the Warranty Good in a manner such that it will be delivered to Milestone Creations at the address specified in Article VIII, Section 8 or as otherwise designated in writing by Milestone Creations and is guaranteed delivery to Milestone Creations no later than ten (10) days from the Notification. Buyer shall promptly provide Milestone Creations with any shipping and/or delivery tracking information and is the owner of the Warranty Good during shipping for all intents and purposes. Buyer acknowledges and understands that it has the right and the sole obligation to place insurance on all items it sends and/or receives as they relate to warranty repairs/replacements.
d. Failure to Timely Return Warranty Good or Temporary Warranty Good Replacement. Should Milestone Creations not receive the Warranty Good or Temporary Warranty Good Replacement by the respective time periods set forth in this subsection, the following daily late rental fees shall apply (or a reasonable percentage of such amount, in Milestone Creations’s sole discretion, if the Warranty Good is only a part for the Goods set forth herein) commencing on the date such items were to be delivered to Milestone Creations:
- Kid-Powered Ride Train Sets: $750.00;
- Playground Products: $2,000.00;
- Electric Trains/Cars $1,750.00;
- All Other Goods: $250.00.
ARTICLE VIII. MISCELLANEOUS
1. Severability. If any provision herein is deemed illegal, invalid or unenforceable, or inconsistent with the laws, regulations, ordinance, or rules of the applicable government or state, remaining provisions shall not be affected thereby, and shall remain valid and enforceable.
2. Remedy for Breach. Breach of the T&C Agreement, or any other Milestone Creations agreement or policy gives Milestone Creations the right to terminate any and all agreements and to recover any and all damages, including reasonable attorney’s fees. Such provision does not limit in anyway Milestone Creation’s right to seek any other remedy that may be available to Milestone Creations. The parties further agree that injunctive relief may appropriate in the event of a breach of this T&C Agreement by Buyer, as well as any other equitable remedy.
3. Merger. This T&C Agreement, including the Order attached hereto, constitutes the entire agreement between the parties.
4. Assignment and Transferability. Milestone Creations may freely assign this T&C Agreement, and its other agreements and policies. Buyer, however, may not transfer or assign any rights, duties, or obligations under this or any agreement between the Subscriber and the Buyer. Any attempted resale, sublicensing, liens, assignment or transfer of the Order without Milestone Creations’s express written consent is considered strictly prohibited and is a breach of this agreement.
5. No Waiver. Milestone Creations’s failure to require strict performance of any term of the T&C Agreement, or any other document entered into by the Parties shall not constitute a waiver of Milestone Creations’s right to do so. Milestone Creations’s performance of matters beyond the contractual obligations specified herein do not constitute a waiver of any provisions contained herein, including but not limited to the disclaimers of warranty.
6. Governing Law. This agreement is governed by the laws of the state of Texas. The terms and conditions contained in the T&C Agreement, and any amendment thereto, are always subject to the laws of the State of Texas while shall prevail if inconsistent with any terms or conditions herein, and this T&C Agreement shall be construed as if the provision of such laws or ordinances were written herein. The parties hereby designate Dallas County, Texas as having proper jurisdiction and proper venue as the Dallas County District and County Courts at Law, as well as the United States District Court for the Northern District of Texas.
7. Integration. There are no representations, warranties or conditions, express or implied, statutory or otherwise except those herein contained, and no agreements or waivers collateral hereto shall be binding on either party unless in writing and signed by Buyer and accepted by Milestone Creations. This T&C Agreement contains all of the promises, warranties, terms and conditions of the agreement between the Parties and supersedes any and all oral or implied promises, representations, undertakings and prior agreements. These terms and conditions may from time to time be updated without notice to the public, or to buyers and to apply to any and all Orders, including Modifications, made on or after the date of the update.
8. Notices. All notices, demands or requests required or permitted to be given under this Agreement shall be in writing and delivered personally or by registered or certified mail, return receipt requested, with postage prepaid as follows: