Terms & Agreements

1. Applicability: (a) Sales by Fun Spot Manufacturing, LLC (“Seller”) to the purchaser of Seller’s products (“Purchaser”) shall be governed by these general terms and conditions (“Terms and Conditions”). These Terms and Conditions, all other documents incorporated herein by reference, and any additional agreements (including Financing Agreements) executed by the parties shall constitute the “Agreement.” By ordering products from Purchaser or accepting products from Purchaser, Purchaser agrees to be bound by and accepts these Terms and Conditions, regardless of whether Purchaser signs these Terms and Conditions.

(b) All orders are subject to final acceptance by Seller. Purchaser’s order constitutes Purchaser’s unqualified acceptance of any written quotation from Seller upon which such order is based. Except as to quantity of goods ordered, no terms and conditions set forth in any purchase order or other form or document provided or submitted by Purchaser will apply to sales by Seller to Purchaser and such terms and conditions are rejected by Seller. The only terms and conditions applicable to any transaction between the parties shall be the terms and conditions in the Agreement. Any additional or different terms and conditions in any forms or documents submitted from Purchaser will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of this Agreement or any purchase order or invoice related thereto.

(c) In the event of an express conflict between the terms of these Terms and Conditions and the terms of a separate written agreement entered into between the parties (or between Purchaser and any of Seller’s affiliates), the terms of the separate agreement shall control as to those specific items that are in conflict. In the event of an express conflict between the terms of these Terms and Conditions and the terms of any other document, the terms of the Terms and Conditions shall control.

2. Cancellations: Purchaser’s purchase order which is accepted by Seller may not be canceled, in whole or in part, unless and until Seller receives written notice of the cancellation, Seller has determined the cancellation charge to be applied, and Purchaser has accepted and paid the cancellation charge of Seller.

3. Payment: (a) All amounts due for products and or installation service purchased from Seller are payable in full within thirty (30) days from the date of invoice, unless different terms are set forth in Seller’s proposal or in a separate agreement executed by the parties. Unless stated otherwise in a writing agreed to by both parties, a fifty percent (50%) nonrefundable deposit is due on the date of Purchaser’s order. Unless specified otherwise in writing, payments must be made in United States Dollars.

(b) Purchaser agrees that invoices are conclusive and accurate in all respects unless Purchaser notifies Seller in writing of any dispute within fifteen (15) days of receipt of an invoice.

(c) If Purchaser fails to pay any invoices when due, Purchaser agrees to pay a late charge of (a) one and a half percent (1.5%) per month or (b) the maximum lawful rate permitted to be charged under applicable state law, whichever is less, on any past due balance. Invoices are paid when amounts are physically received by Seller and not when they are deposited in the mail.

(d) Purchaser shall pay for all invoices in the form of a Business Check, Cashiers Check or a Wire Transfer. Wire Transfer is the preferred form of payment and will ensure faster response from Seller when releasing equipment for delivery or any other services provided by Seller. The final balance payment on all invoices before final shipment of equipment is required to be paid by Wire Transfer.

(e) Purchaser shall pay Seller a service charge in an amount equal to the greater of $35.00 or 5% of the check balance for all checks returned by Purchaser’s bank, provided however, that such service charge shall not be due and payable in the event such payment would result in the violation of the usury laws of the applicable jurisdiction.

4. Price: Orders are accepted by Seller subject to delivery when available, at Seller’s prices in effect on the shipment date, unless otherwise agreed by the parties. Seller reserves the right to change prices in the event of fluctuations in the costs of materials, labor, or currency exchange rates.

5. Taxes: Any existing tax, import fee, duty, excise or governmental charge imposed upon the production, sale, use or transportation of or value added to any product sold hereunder which Seller may be required to pay, will be added to the price then in effect hereunder and will be paid to Seller by Purchaser. In the event that Seller is required to pay such tax, fee, duty or charge, Purchaser shall reimburse Seller for such payment. In the event that Seller is required by law or by any state agency, commissioner or department to pay any sales tax on the products, whether upon or after the purchase or the delivery of the products, Purchaser agrees to reimburse Seller for the amount of such sales tax. Purchaser shall provide Seller upon request with completed exemption certificates for any tax from which Purchaser claims exemptions.

6. Shipment and Delivery: (a) Unless otherwise agreed in writing by the parties, Purchaser will arrange shipping and: (i) all deliveries of products within the United States shall be FOB Origin; (ii) all deliveries of products outside the United States shall be Ex Works (as defined in Incoterms 2000) Seller’s manufacturing facility in Hartwell, Georgia, United States; (iii) delivery is made as of the date Seller notifies Purchaser that the products are available to Purchaser at Seller’s facility; (iv) Purchaser shall be solely responsible for all costs and arrangements for delivery of the products from Seller’s facility on the delivery date; and (v) risk of loss for products passes to Purchaser upon the delivery date, regardless of whether Purchaser fails to take possession of the products.

(b) When Purchaser places an order and the parties agree that Seller will arrange shipping, the order will be shipped to an address designated by Purchaser as long as that shipping address is compliant with any normal shipping restrictions. Where shipping is arranged by Seller, the risk of loss for items purchased from Seller passes to Purchaser upon acceptance of goods by carrier at point of shipment (when delivered by common carrier) or upon delivery to Purchaser (when delivered by Seller). Purchaser is responsible for filing any claims with carriers for damaged and/or lost shipments. Purchaser will be responsible for all shipping and related charges unless otherwise agreed in writing with Seller. The method and route of shipping shall be at the discretion of Seller unless Purchaser shall specify otherwise, and any additional expense of the method or route of shipment specified by Purchaser shall be borne by Purchaser.

(c) All shipments hereunder are subject to compliance with the export control laws and regulations of the United States. Purchaser agrees to comply with all such laws and regulations concerning the use, disposition, re-export and sale of the goods provided hereunder. Purchaser agrees that it shall not make any disposition, by way of transshipment, export diversion or otherwise (except as said laws may and regulations may expressly permit) of products purchased from Seller other than in and to the ultimate country of destination specified on Purchaser’s purchase order and/or declared as the country of ultimate destination on Seller’s invoices.

(d) Purchaser shall be responsible for timely obtaining any required authorization for receiving delivery of the goods purchased from Seller, including import licenses, exchange permits or any other governmental authorizations. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed, and Purchaser shall not be relieved thereby of its obligations under this Agreement, including its payment obligations.

(e) Purchaser agrees to submit payment in a timely fashion to ensure shipment of equipment is not delayed. Seller reserves the right to charge a storage fee of an amount up to $3,000.00 (U.S. Dollars) per week starting two weeks after an equipment kit has waited for either final payment of invoice or a shipping release. Purchaser understands that painted metal frames will be stored outside. All storage fees incurred by Purchaser must be paid in full by Wire Transfer before Seller will release equipment for shipment.

(f) Any shipping dates stated by Seller are approximate, are not guaranteed, and do not constitute a term of this Agreement, and Seller shall have no liability to Purchaser for any damages of any kind whatsoever incurred by Purchaser arising from or related to delays in delivery of products. Seller shall not be required to make any deliveries or arrange for any deliveries of products until all amounts, fees and charges due have been paid in full in cleared funds.

7. Inspection and Claims: Purchaser shall inspect and test the products delivered immediately upon receipt for any defects or omissions and shall notify Seller in writing of any such defects or omissions within fifteen (15) days from the date of delivery. Such written notice shall provide specific details of each such defect or omission. All claims arising from or based upon defects or omissions in products, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller provides written notice of such defects or omissions in accordance with the requirements of this Section. Purchaser will be deemed to have accepted the products and their condition if it does not provide timely notice of any defects or omissions pursuant to this Section.

8. Default: (a) Each shipment of products under this Agreement is a separate transaction, without reference to any other shipment. If either Party is in default with respect to any of the terms or conditions of this Agreement, including, without limitation, Purchaser's failure to pay any invoice in accordance with the terms of this Agreement: (i) the other party may, at its option, defer further performance until the default is remedied, and, without prejudice to any other legal remedy, may terminate this Agreement if the default is not remedied within ten (10) business days after written notice is provided to the Party in default, specifying the thing or matter in default; and (ii) Seller may terminate this Agreement upon written notice if Purchaser fails to pay any invoice when due.

(b) Notwithstanding the foregoing, if any amount owing to Seller is not paid when due or if Seller believes in good faith that Purchaser’s ability to make payments may be impaired, Seller may at its option (i) place the account on a cash basis; and/or (ii) terminate any unfilled orders or discontinue any deliveries until all past-due payments are made and adequate assurance of Purchaser’s financial ability is received.

9. Collection Costs: In the event that suit is brought or an attorney is retained by Seller to enforce the terms of the Agreement or to collect any money as due hereunder or to collect any money damages for breach hereof, Seller shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith.

10. Force Majeure: Seller shall not be liable for any loss, damage, detention, delay or failure to perform in whole or in part, resulting from any cause, contingency, or circumstance not subject to its reasonable control that Terms and Conditions Ver. 9-29-21 prevents or hinders the manufacture or delivery of the products, including, but not limited to, federal, state, or municipal action, statute, ordinance, or regulation; strike or other labor trouble; fire damage to or destruction in whole or in part of products or manufacturing plant; the lack of or inability to obtain raw materials, labor, fuel, or supplies; acts of God, war, insurrections, riots, embargoes, shortages; non-delivery or delays arising from fire, floods, droughts, accidents, insurrections, lockouts, breakdown of machinery, commandeering of vessels carrying products, or for loss, damage, or delay in transit; or refusal of any necessary license or government restrictions (each a “Force Majeure Event”). If a delivery of products to Purchaser is delayed by a Force Majeure Event, the time of delivery shall be extended as necessary to accommodate such delay.

11. Warranty and Disclaimers of Warranty: (a) Any technical information or assistance that Seller gives Purchaser is provided at Purchaser’s risk and is not a warranty or specification. Seller warrants only its title to the products and that the quality of the products shall conform to Seller’s published specifications, if any. THESE ARE THE ONLY REPRESENTATIONS OR WARRANTIES SELLER MAKES AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, UNDER STATUTE OR ARISING OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, ANY OTHER WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE DISCLAIMED BY SELLER.

(b) In the event any product fails to conform to the limited warranty in this Section, Seller’s exclusive obligation and Purchaser’s exclusive remedy shall be limited to, at Seller’s option, replacement of the non-conforming product at Seller’s expense, or a refund of the purchase price attributable to the specific product as to which a claim is made and reasonable transportation costs for such specific product; provided, however, that Seller’s obligation hereunder is conditioned upon (i) Purchaser complying with the notice requirements set forth in Section 7 and (ii) satisfaction of the requirements in Section 11(c) herein. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, IN NO EVENT WILL SELLER BE LIABLE UNDER ANY THEORY OF RECOVERY (WHETHER BASED ON NEGLIGENCE OF ANY KIND, STRICT LIABILITY OR TORT) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO, ARISING FROM OR RESULTING FROM THE DELIVERY HEREUNDER OF OR ANY USE MADE OF THE PRODUCT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c) Seller’s limited warranty under this Section extends only to Purchaser and not to any subsequent purchaser of the products. All products for which a warranty claim is made pursuant to the limited warranty in this Section must be received by Seller at its authorized service center, freight prepaid.. All returns must be preauthorized by Seller, and Seller may require photographs or other documentation demonstrating the product’s failure to conform to the limited warranty in this Section before preauthorizing any return. This warranty does not extend to damage to a product caused by or attributable to freight damage, negligence, abuse, misuse, improper or abnormal usage, maintenance or storage, failure to follow any instructions provided by Seller regarding the products, or repairs not provided by Seller’s authorized service center.

(d) In the event Seller provides or has provided recommendations as to use of the product, Seller makes no warranty of the results to be obtained. In the event Seller provides recommendations for scheduled or normal maintenance of the products, Seller makes no representation or warranty that such maintenance will be adequate for sufficient for Purchaser’s use of the product in its facility or otherwise. Unless otherwise agreed by the parties in a separate written agreement, Purchaser assumes all responsibility and risk and liability arising from the handling, installation, storage, unloading and use of the product by Purchaser and its contractors, employees, agents, affiliates and customers. Seller recognizes that the products have a limited life, the length of which is determined by the amount of use, and Seller agrees that it has no claim for any loss or damage because of products deteriorating through use.

12. Liability and Indemnity: (a) Purchaser, for itself and its affiliates, employees, agents and contractors, hereby releases Seller from any and all claims, whether in contract, tort, strict liability or otherwise, for any direct, special, incidental, punitive or consequential damages for the death of or injury to persons or damage or destruction of property, labor costs, lost profits, or otherwise, which may result from or be incurred incident to Purchaser’s use, ownership or operation of the products. Seller shall not be liable to Purchaser for any claims or damages resulting from or caused by (i) claims against Purchaser by any other party; (ii) any act or omission of any other party, including end users and customers of Purchaser; and (iii) equipment or services furnished by a third party.

(b) Purchaser shall indemnify, defend and hold harmless Seller, its members, directors, officers, employees, agents and affiliates from and against all damages, losses or other liabilities, including without limitation for the death of or injury to persons or damage or destruction of property, and including reasonable attorney’s fees, resulting from any claims brought by third parties related to or arising from (i) any products purchased by Purchaser from Seller; (ii) Purchaser’s performance of, or failure to perform, its obligations and duties under this Agreement; or (iii) any products or services offered to the public by Purchaser that incorporate or make use of the products purchased by Purchaser from Seller.

(c) As between Purchaser and Seller, Purchaser is responsible for determining whether any permits, certifications or other authorizations are required for installation, operation or use of the products in Purchaser’s facility. Seller shall have no liability to Purchaser