THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE UNLESS AND UNTIL YOU: (A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 18 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS, OR, SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION.
1. Applicability of Terms and Conditions. These terms and conditions (these) shall apply to your purchase of products and related services through www.smartplayrooms.com (the). These Terms are subject to change at any time without prior written notice by Smart Playrooms LLC (referred to herein as either “Company,” “we,” “us,” or “our”). The most recent version of these Terms shall be posted for your review at any time on the Site. Please review these Terms in their entirety prior to engaging in any transaction on the Site. Your continued use of the Site after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes therein made.
2. Online Orders. When placing an order on our Site, you are effectively offering to purchase whatever products and services you select. We reserve the right to accept or reject any order in our own discretion. We will only accept or reject an order in its entirety. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein.
3. Payment Terms. All applicable prices are set forth alongside the goods and services offered on the Site. They may differ from the prices offered elsewhere (online or offline) by us for the same goods and/or services. Such prices are subject to change at any time by us in our sole discretion. Additionally, to the extent that we offer a promotion in connection with any particular item, the terms of such offer shall be set forth in a separate document that shall govern its applicability (and, in the event of a conflict herewith, be considered the governing document). You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or such other bona-fide electronic payment provider as may be indicated from time to time at check out (i.e., Shopify, PayPal, etc.). By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
4. Shipping Information. (a) As part of any e-design service packages, Company will be providing links for you to directly purchase retail items yourself. Any items directly purchased by you online will be solely your responsibility. You will be responsible for all purchases, deliveries, and associated shipping and handling charges, and some deliveries may require you to be present to accept delivery during designated hours. Company shall not be responsible for any items you purchase yourself, for any delays in shipments, or any issues with the item purchased. Please contact the respective retailers with any issues you might
have with an item you have purchased. Please carefully review Section 7(a) below for Buyer’s R&Ws.
(b) In the event Company places a custom purchase order for you, it is our responsibility to ship your accepted order to you at the address you provide on our questionnaire. You will be responsible for all associated shipping and handling charges, and some deliveries may require you to be present to accept delivery during designated hours. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments.
5. Returns; Shipping. All orders are custom final sale and therefore not returnable, unless the manufacturer allows returns and then any returns will be governed by the manufacturer’s return policy, if any. You bear the risk of loss or damage during shipment and as such, you are advised to obtain appropriate insurance. Your refund, if allowable under the manufacturer’s return policy, will be credited back to the same payment method used to make the applicable purchase.
7. Representations; Warranties (R&Ws); Disclaimers; Limitations on Liability.
(a) Buyer’s R&Ws. You represent and warrant to us as follows: (i) that you have the right to enter any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you will use the goods and services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; (iii) that you are buying goods or services from the Site for solely your own use, and not for resale or export; (iv) that you are solely responsible for determining whether the goods or services are suitable, including without limitation that your measurements are accurate and items purchased will fit, for your use and for the conditions onsite where the goods or services are to be used; (v) you and/or your representatives and/or agents are solely responsible for knowing and performing the proper installation and use of the goods or services offered on our site, and for insuring that all installation and use of the goods and
services is performed properly and in accordance with all relevant instructions.
(b) Manufacturer’s Warranty. We do not manufacture (or direct the manufacture of) any of the goods or services offered on our Site in any way. The availability on our Site of goods and services does not constitute an affiliation with or endorsement of any of the goods or services or their manufacturer. As such, subject to applicable law, we are providing the goods and services to you “as is” without express or implied warranties of any kind (including without limitation any: (i) warranty of merchantability; (ii) warranty of fitness for a particular purpose; (iii) warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage or trade, or otherwise). They are, however, covered by the manufacturer’s warranty as detailed in any product’s description on our Site and/or included with our delivery of the goods and services. You can avail yourself of any of the manufacturer’s warranties by following the instructions provided in their warranty agreement(s). You acknowledge and agree that under no circumstances shall
we be liable for any breach of the manufacturer’s warranty claims and/or for any loss or damages that may arise out of the manufacturer’s failure to honor its warranty obligations to you.
(c) HAZARDOUS AND DANGEROUS ACTIVITIES. WARNING! CLIMBING, HANGING, SWINGING, JUMPING, RUNNING AND OTHERWISE PLAYING ON OR WITH GOODS OR SERVICES OFFERED ON OUR SITE ARE HAZARDOUS AND DANGEROUS
ACTIVITIES THAT MAY RESULT IN SERIOUS INJURY AND/OR DEATH EVEN WHEN DONE PROPERLY. USE SUCH GOODS AND SERVICES AT YOUR OWN RISK AND ALWAYS USE COMMON SENSE AND GOOD JUDGEMENT. WE EXPLICITLY DISCLAIM ANY AND ALL RESPONSIBILITY AND ANY LIABILITY FOR ANY DEATH, INJURY, AND/OR DAMAGE TO ANY PERSON OR PROPERTY THAT MAY OCCUR, THAT ARISES OUT OF, OR IS IN ANY WAY RELATED TO THE USE OF GOODS SOLD OR SERVICES PROVIDED ON OUR SITE. BY YOUR PURCHASE AND USE OF GOODS SOLD OR SERVICES PROVIDED ON OUR SITE, YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR SAFETY AND THE SAFETY OF YOUR INVITEES AND YOU ASSUME ALL RISKS AND ACCEPT FULL AND COMPLETE RESPONSIBILITY FOR ALL DAMAGES OF ANY KIND, INCLUDING ANY DEATH, INJURY, AND/OR DAMAGE TO ANY PERSON OR PROPERTY, THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO YOUR USE OF GOODS SOLD OR SERVICES PROVIDED BY US.
(d) RELEASE. YOU HEREBY RELEASE AND HOLD US HARMLESS FROM ANY INJURY WE SUFFER THAT ARISES FROM OR IS RELATED TO, OR WHICH OCCURS AS A RESULT OF, YOUR BREACH OF ANY REPRESENTATIONS OR WARRANTIES HEREIN. YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND US, OUR MEMBERS, MANAGERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES, AGENTS, AFFILIATES, AND THE MEMBERS, MANAGERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES AND AGENTS OF OUR AFFILIATES, FROM AND AGAINST ALL LOSSES,
LIABILITIES, DAMAGES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY FEES AND COURT OR ARBITRATION COSTS, ARISING OUT OF ANY CLAIMS OR SUITS FOR DAMAGE OR INJURY TO ANY PERSON OR PROPERTY BASED IN WHOLE OR IN PART ON, ARISING OUT OF OR RELATED IN ANY WAY TO, YOUR BREACH OF THESE REPRESENTATIONS AND WARRANTIES.
(e) LIABILITY CAP. UNDER NO CIRCUMSTANCES WILL COMPANY’S OBLIGATION OR LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE YOU PAID ON THE SITE FOR ANY GOODS OR SERVICES. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.
8. Third-Party Beneficiaries. These Terms are for your sole benefit and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
9. Force Majeure. Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, lockouts, floods, fires, acts of God, epidemics, pandemics, terrorism, acts of civil or military authority, governmental, judicial or regulatory actions, and/or delivery, vendor, supplier, or other third party delays, non-performance, or failures of any kind.
10. Assignment. Company may assign or otherwise transfer any or all of its rights or
obligations hereunder, in whole or in part, to any third party in its sole discretion. You may not assign any of your rights or delegate any of your duties hereunder at any time without our prior written consent in each instance, and any attempt to do so shall be null and void.
11. Partial Invalidity. In the event that any part or portion of these Terms is deemed to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
12. Governing Law/Binding Arbitration.
(a) Governing Law. These Terms shall be governed by the laws of the State of New
York without regard to its conflict of laws principles.
(b) Binding Arbitration. Subject to subsection (c) below and all applicable laws, you are agreeing to give up: (i) your right to litigate any claims that may arise hereunder in court or before a jury; and (ii) your right to consolidate any claim and/or participate in any class-action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by us shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one arbitrator sitting in Westchester County, New York. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. Company shall bear all of its own costs, as well as your reasonable outside attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if we are the prevailing party, we shall be entitled to reimbursement for those amounts that were expended on your behalf. With respect to any arbitration hereunder, as stated above, you hereby expressly waive any right to consolidate any claim and/or participate in any class-action claim of any kind or nature. This Section 12 provides your sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms. Ifany provision of this clause is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.
(c) Small-Claims Option. Notwithstanding the foregoing, you may elect to pursue a breach of warranty claim in small-claims court rather than submit to binding arbitration, but only if you provide us with written notice of your desire to do so within 30 days of your purchase transaction. Any small-claims court proceeding initiated hereunder will be limited solely to your individual dispute; i.e., you are not permitted to file, or participate in, a class action suit in small-claims court with respect to these Terms.
13. No Waivers. Our failure to enforce any of our rights hereunder will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law.
14. Notices. We may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on the Site. You shall be responsible for ensuring that you have provided us with your current email and mailing addresses. You can contact us at any time by any of the following means: (i) email to email@example.com; or (ii) overnight courier, or registered or certified mail to Smart Playrooms LLC, c/o P.O. Box 67, Rye, NY 10580.