Terms and Conditions - Building a Game Court - All American Courts

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We Build. You Play.

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All American Courts Official Indoor/Outdoor Court Designer

All American Courts Official Indoor/Outdoor Court Designer

Terms & Conditions

ALL AMERICAN COURTS, LLC

Installation; Title; Risk of Loss. Unless otherwise specified on a purchase order (a “PO”), Seller shall install the products specified on the PO (the “Products”) at the installation site specified thereon (the “Installation Site”), and Customer shall assume risk of loss of the Products upon installation thereof at the Installation Site, but title to the Products shall remain with Seller until Customer’s payment of the Price for the Products in full. Seller shall install the Products (a) substantially in compliance with all Laws and policies of Customer regarding safety measures to be taken at the location where the installation is performed, and (b) in a professional manner with the standard of care, skill, and diligence normally provided by a person in the performance of services similar to the installation of
the Products. Any delivery date specified in a PO is an estimate only, and Seller does not guarantee any specific date for delivery or for any phase of installation of the Products. Seller shall attempt to notify Customer of anticipated installation delays, but Seller shall not be in default due to any such delays.
Permits; Easements; Access. Customer shall (a) request and obtain any applicable permits and approvals (including of any homeowners’ associations, if applicable) to enable Seller to install the Products, (b) if applicable, determine the location of any underground cables, equipment, or structures on Customer’s premises, and inform Seller thereof, prior to Seller’s commencement of installation, (c) if applicable, be responsible for the removal, repair, or relocation of sprinkler systems or other equipment or personal property on Customer’s premises as necessary to enable Seller to install the Products, and (d) provide Seller and its subcontractors with access to Customer’s premises and such other accommodation and facilities as Seller reasonably requests for the purposes of installing the Products.
Non-Seller Work. Customer shall, if requested by Seller, perform, or engage the services of a third-party contractor (a “Contractor”) to perform, certain ancillary services related to the installation of the Product, including, to the extent applicable, (a) installing a concrete foundation necessary for Seller’s installation of the Products, (b) otherwise reinforcing surfaces on which the Products are to be installed as requested by Seller, or (c) performing electrical work to connect any Seller-installed lighting or other equipment that requires electrical power to Customer’s electrical system. The cost to Customer of any such Contractor is not included in the prices set forth in the PO (the “Prices”), and Seller is not responsible or liable hereunder for Customer’s or Contractor’s performance or nonperformance of Customer’s or Contractor’s obligations or any damages or losses (including damage to the Products) incurred by Customer in connection therewith.
Changes. The Prices are based on the assumption that the Installation Site contains no condition or obstacle that will not accommodate the standard installation of the Product. If any new or different requirement, condition,
change, or anything beyond Seller’s control adversely affects Seller’s ability to perform the installation or otherwise affects Seller’s costs or schedule to perform the installation, whether as a result of any act or omission of Customer (including Customer’s failure to engage a Contractor as provided herein) or its employees, agents, or contractors, or any operation or change of Law that becomes applicable to Seller’s performance of its obligations hereunder, Seller shall be entitled to additional reasonable compensation to complete the installation of the Products. If the parties do not agree on additional compensation within 15 days after Seller’s request therefor, then either party may terminate this Agreement upon notice to the other Party, and Customer shall,
upon receipt of an invoice therefore, pay Seller a reasonable portion of the Price, based upon the actual costs incurred by Seller at the time of termination. Termination hereunder will relieve Seller of all further liability or responsibility for performance hereunder, other than Installation Site cleanup in accordance with the terms hereof.
Payment Terms; Late Payment; Taxes; Security Interest; No Liens. Customer shall pay the Prices in accordance with the payment schedule set forth in the PO. Prices exclude all federal, state, and local taxes (including sales and use tax), all of which shall be paid by the Customer or as set forth in the PO. Customer shall not deduct any taxes from any payment unless Seller has confirmed receipt of a valid tax exempt certificate from Customer. Past due amounts will bear interest at the rate of 1.5%, compounded monthly. Except as otherwise set forth in the PO, the Seller may require Customer to pay all or a portion of the Price or to provide adequate security forpayment of the Price, prior to delivery of the Products. If Seller makes delivery of any Products before Customer’s payment in full of the Price therefor, then Customer grants to Seller a purchase money security interest in the Products and authorizes Seller to file Uniform Commercial Code financing statements, amendments, and continuation statements in connection therewith and to take all other actions Seller deems necessary or desirable to perfect, maintain, protect, and foreclose on the security interest granted herein. Customer shall not allow the creation of any lien or security interest on any Products until the later of Seller’s delivery of the Products and Customer’s payment in full of the Price for the Products.
Limited Warranty. Any limited warranty of Seller with respect to the Products or the installation thereof shall not cover noncompliance with the specifications that results from (a) use of Products in other than their normal and customary manner or not in compliance with the instruction materials provided by Seller, (b) neglect, abuse, or misuse, (c) accident, fire, flood, lightening or other acts of God, war, or other events beyond Seller’s reasonable control, (d) improper handling, operation, transport, storage, or environmental conditions, (e) unauthorized alterations or repairs, (f) improper or faulty maintenance, service, or cleaning, including maintenance, service, or cleaning not in compliance with standard industry practices or the instruction manuals provided by Seller; (g)
cosmetic damage, including scratches to exposed parts of the Products not affecting the performance thereof, or
(h) use of the Product parts that are not Seller parts or parts from Seller-approved vendors. With respect to an outdoor Installation Site, Seller does not guarantee or represent that the changes in sunlight or drainage patterns caused by Seller’s installation of the Products will not adversely affect nearby lawns, trees, or shrubs, and Customer assumes all such risk. EXCEPT FOR ANY LIMITED WARRANTY EXPRESSLY PROVIDED BY SELLER, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE PRODUCTS; ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DESIGN ARE DISCLAIMED AND EXCLUDED.
Manufacturer Warranties. If Seller is not the manufacturer of a Product, Seller hereby assigns any assignable warranties and remedies of the manufacturer of such Product to Customer effective upon the transfer of title to the Product.
Indemnification. Customer shall indemnify, hold harmless, and, if requested by Seller, defend Seller, its affiliates, its and their employees, officers, directors, shareholders, members, partners, contractors, and consultants, and the successors and assigns of all of the foregoing (as applicable, the “Indemnified Party”) from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, in cluding court costs, reasonable attorneys’ and professionals’ fees and expenses and other litigation or settlement expenses (collectively, “Losses”) sustained or incurred by the Indemnified Party, including in connection with a claim, demand, or action (a “Claim”) made by a third party against the Indemnified Party, to the extent arising from Customer’s or its employees, agents, or contractors (a) breach of the Agreement, (b) negligence or willful misconduct, or (c) use of the Products, including injuries to person or property before, during, and after installation.
Insurance. Customer shall carry adequate insurance coverage, including liability and errors and omissions, for risks of loss, damage, and injury before, during, and after installation of the Products.
Authorization. Customer has authorized use of any files or documents they provide.
Limitation on Liability. EXCEPT FOR LIABILITY FOR (A) INDEMNIFICATION IN CONNECTION WITH THIRD-PARTY CLAIMS, OR (B) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE AGREEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES ARISING OUT OF OR RELATING TO A PO THAT EXCEED THE TOTAL PRICES PAID BY CUSTOMER TO SELLER UNDER SUCH PO AS OF THE DATE SUCH DAMAGES ARISE.
Force Majeure. A party that fails to perform its obligations under the Agreement (other than failure to make payments when due) shall be free from liability for failing to perform to the extent such failure is caused due to acts of God, labor difficulties, fires, or other causes beyond the reasonable control of the affected party.
Notices. All notices and other communications required or permitted to be given under the Agreement shall be (a) in writing, (b) delivered in person or by electronic mail, overnight courier, or certified mail, postage prepaid, return receipt requested, to the receiving party at the address shown in the PO, or to such other address as such party may have given to the other by notice pursuant to this Section, and (c) deemed received on the date of delivery or refusal, as applicable.
Governing Law and Forum; Attorneys’ Fees. The Agreement shall be governed by and construed according to the Laws of the State in which Seller is located, as indicated by Seller’s address in the PO (the “State”), excluding any conflict of laws principles. The parties shall bring and maintain any litigation under the Agreement in the appropriate courts in the State, and each party submits and irrevocably waives any objection to in personam jurisdiction in the State and the state and federal courts thereof. If Seller is required to take any action to enforce the terms of the Agreement, Seller shall be entitled to reasonable attorneys’ and other professionals’ fees and costs, costs of collection, and interest at the statutory rate on any unpaid amount from the date due.
No Waiver; Amendments; No Assignment; Severability. No delay in exercising or failure to exercise a right of remedy shall impair that or any other right or remedy or be construed as a waiver of any such right or remedy. The Agreement (a) may be amended or canceled only in writing signed by both parties, and (b) shall not be assigned by Customer without Seller’s prior consent, and any attempt to assign it without such consent shall be void. Seller may engage subcontractors to perform Seller’s obligations hereunder. If any of the provisions herein shall for any reason be held void or unenforceable, the remaining provisions shall remain in full force and effect.
Entire Agreement. All Deliveries of Products are subject to these terms and conditions (the “Terms”), regardless of whether the Terms are attached to a PO or other documentation or are delivered separately. Customer shall be deemed to have irrevocably accepted the Terms upon the earliest of (a) delivery of the PO to Seller, (b) acceptance of delivery of a Product, or (c) payment of any amount due for a Product. A PO is accepted by Seller only upon Seller’s execution thereof. If there are inconsistencies between the Terms and the terms of a PO, the PO controls. If additional or different terms are contained in any document issued by Customer (“Proposed Terms”), the Terms will govern regardless of when the Proposed Terms are received by Seller, unless Seller agrees in writing to the Proposed Terms; otherwise, Seller rejects all Proposed Terms.
Definitions and Interpretation. As used herein, “Agreement” means the Terms, together with the applicable PO; “Customer” means the customer specified in the PO; “Laws” means all applicable federal, state, and local laws, codes, rules, regulations, and orders of any governmental authority; and “Seller” means the seller specified in the PO. In interpreting the Agreement, unless the context requires otherwise: (a) the singular includes the plural and vice versa; (b) reference to a document or Law means such document or Law as amended from time to time; (c) the term “or” is not exclusive; (d) “include” or “including” means including without limiting the generality of any description preceding such term; (e) headings are for convenience only and do not constitute a part of the Agreement; (f) all references to money refer to United States currency unless otherwise indicated on the PO; (g) the terms “herein,” “hereunder,” “hereby,” and derivatives or similar words refer to the entire Agreement, and (h) references to Seller are deemed to include affiliates of Seller that provide Products to, or install Products

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