Contract Terms and Conditions
This sales contract, hereby known as "Contract", is entered by and between HullaBalloo Sales, hereby known as "HB", and its customer, hereby known as "Customer". The Contract consists of these terms and conditions, hereby known as "Ts & Cs", and the Invoice, as defined below.
"Blower": the mechanical equipment used to pump air into inflatable structures.
"Blower Manufacturer": the manufacturing company responsible for constructing the Blower.
"Custom Product": any product not advertised or manufactured by HB.
"Customer": the person(s), company, and/or legal entity stated on the invoice and who is purchasing Products from HB.
"Effective Date": the date on which the Customer signs this Contract, either digitally or in some other manner.
"Indoor Center": an indoor family entertainment center, indoor playground/play center or indoor playroom; specifically, high volume establishment providing entertainment services open for public use; an indoor children's amusement center where inflatable rides may experience heavy rider traffic.
"IPC Quality": an inflatable which is manufactured with additional reinforcement and additional linings intended to be used in an indoor center with high traffic use.
"Inflatable": an air filled play structure used by patrons for entertainment and/or sporting purposes.
"Invoice": the sales sheet that includes the Products purchased, Customer information, shipping information, and purchase price.
"HB": HullaBalloo Sales, the wholesale company of inflatable Products and HB of accessories and equipment.
"Products" means all products manufactured by HB.
"Shipping Carrier": a third party common carrier used to transport goods.
"Water Ride Inflatables": Inflatable rides, including incline slides, horizontal slides and pools, which are designed for use with water.
1. ACCEPTANCE: HB accepts Customer's order for the inflatable Product(s) listed on the Invoice, pursuant to these Ts & Cs. Customer acknowledges that he/she has read and fully understands and agrees to these Ts & Cs. No different or additional terms will be accepted by HB without written consent of authorized HB personnel. HB is not responsible for clerical or typographical errors made on any of its documents, quotations or literature. This Contract is effective as of the Effective Date.
2. PAYMENT: Payment shall be made on all orders as follows: Customer must make a non-refundable 40% deposit on the price of each Custom Product. For Products not in stock, a deposit of 30% of the Product price must be paid to reserve production space on the production schedule. Orders placed without a deposit will not be started until a security deposit has been received and this Contract has been signed by the Customer. If a deposit is not received within seven (7) days of an order, the order may be cancelled. The estimated shipping date listed on the Invoice is based on the date the deposit is received. For each day a deposit has not been received an additional day may be added to the estimated shipping date. Final payment must be received, and funds cleared and verified by HB, at least two (2) days prior to shipment of an order, unless special arrangements have been made with HB. If final payment is not received within three weeks from the date a Product is ready for shipping, the Customer will forfeit their deposit and the Products may be resold to others. All funds for payment must be in U.S. dollars with a cashier's check, money order, wire transfer, or credit card.
3. SHIPPING: The shipping date indicated on the Invoice refers to the estimated time the Product(s) will be completed but does not represent a commitment by HB to ship on that date. Delay in receiving necessary (Customer-supplied) artwork may cause a delay in the on-time completion of an order. HB uses the services of several common carriers to handle the delivery of its Products. Whenever possible, HB will pass on the discounts offered by shipping carriers to the Customer. Unless a carrier is specified by the Customer, HB will use, at its discretion, its carrier of choice to deliver the product(s) to the Customer. Shipping includes basic insurance; additional insurance may be arranged at Customer's request and cost. Unless noted otherwise on the Invoice, all costs and expenses related to shipment, including additional insurance, customs expenses, duties, taxes, and so on, shall be the sole responsibility of the Customer HB will generally ship freight prepaid, unless Customer requests other arrangements. HB is not responsible for delays in shipping due to weather, Union strikes, fires, floods, freight embargoes and acts of governments, or other conditions beyond the reasonable control of HB. Damages caused by the shipping carrier are not the responsibility of HB. The shipping carrier’s policies for handling of damaged Products during shipping and upon delivery must be followed to ensure that claims are handled properly.
4. LIMITED WARRANTY: HB provides Customer a limited repair and replacement warranty and warrants only that the Products, identified by category below, will be fit for their intended purpose, merchantable, and without material defect in workmanship and materials for a period determined by the type of product as specified in the following:
A) Inflatables manufactured by HB: One (1) year from the date Customer receives the order with the exception of the following:
i. All inflatables used in Indoor Centers are covered for one (1) year from the date Customer receives the order.
ii. All inflatables used in Indoor Centers and manufactured with IPC quality are covered for one (1) year from the date Customer receives the order.
iiii. All Water Ride Inflatables intended to be used with water are covered for one (1) year from the date Customer receives the order.
B) Pieces, parts, and accessories (e.g. slide lining, climber lining, etc.) ordered from HB: Forty five (45) days from the date Customer receives the order.
C) Other equipment (not manufactured by HB), including Blowers: No warranty of any kind is extended by HB, but HB will, to the extent it can legally and contractually do so, assign to Customer, at Customer's request, all warranties on such other equipment, if any, offered by the manufacturer or supplier of such other equipment. The Blower supplied with Inflatable Products is covered by the Blower Manufacturer's own warranty. Any claims of defect in the Blower must be directed to the Blower Manufacturer directly for repair or replacement. Blowers carry a one (1) year warranty.
D) Custom Products. No warranty of any kind is extended by HB for Custom Products unless noted on invoice.
E) Digital Printed Graphics. No warranty of any kind is extended for digital printed graphics.
A Product shall not be considered defective if it is a different color than shown in HB catalog or website and no warranty is made relating to color. Ordinary wear and tear will not invalidate the HB limited warranty. The HB warranty does not cover damage to Products due to misuse, improper handling or storage, improper maintenance and care, or abusive or negligent treatment of the Products. This warranty shall become void if and Inflatable Product is packed wet or repaired by any repair agency not approved by HB. Customer must use stakes, sandbags, tie-downs and ground cover at all times to ensure the safety of users and the equipment. This warranty is not a guarantee that the Product will not, through use, handling and storage, develop tears or punctures from time to time, the repair of which is the responsibility of Customer. The determination of whether damage to Products is covered by the HB limited warranty is in HB’s sole discretion. HB is not responsible for any lost revenue as a result of a warranty claim by Customer. HB is not responsible for replacing any Inflatable Product with a loaner Product during a repair of a Product under warranty.
Defects must become apparent, and must be reported to HB, within the applicable warranty period.
HB's liability for warranty claims is limited to the repair or replacement of defective Products.
5. SHIPPING OF WARRANTY REPAIRS: All requests of Customer for warranty work and replacements are subject to Product inspection at the HB factory. Final evaluation of warranty claim will be done when Product arrives at the HB factory. Customer must send photo(s) of the suspected area needing repair when Customer submit a claim. If a returned Product is evaluated by the Company, found defective, and the warranty for such Product(s) is in force, HB will bear the cost of shipping in the following manner:
For the first 180 days after Customer receives an order, HB shall be responsible for ground freight charges to and from the HB factory using an HB-approved freight carrier. For the remaining warranty period, Customer will be responsible for all shipping charges to and from the HB factory. All returned shipments must be pre-approved by HB and have a returned goods authorization issued; if not, Customer will be responsible for the freight charges.
6. OUTSIDE REPAIR SERVICES: HB, at is discretion, may allow outside repair services to perform warranty repairs for Products, if all repair criteria is met to the satisfaction of HB. The following procedures MUST be followed in order for a potential warranty repair from an outside repair service to be authorized by HB:
a) Customer must advise HB of the Product needing repair.
b) An RA Number will be issued to Customer acknowledging the repair.
c) A photo or photos of the Product with the area needing repair must be emailed to an HB authorized representative. This photo must include a scale reference and location on the Product where damaged areas are located.
d) HB will make an initial determination of the repair being a valid warranty claim.
e) A repair center recommended by Customer will be contacted by HB supervisor to determine whether the repair center can handle the repair.
f) If the repair center is accepted by HB, the inflatable will be sent to this center, at Customer's expense, for inspection by repair center.
g) A written estimate detailing the repair and potential causes for the damage will be sent to HB to review.
h) If repairs are accepted as warranty-related, HB will issue a Purchase Order (PO) to the repair center for the repair.
i) HB will NOT pay for any rush charges for repairs of any warranty-related items. Scheduling of repairs by outside repairs centers will be handled by Customer.
j) HB will ONLY pay for repairs linked to the Product warranty. Any additional repairs not covered by the warranty will be the responsibility of Customer.
k) The areas repaired by any outside authorized repair company will be void of any further warranty from HB. Those repaired areas will be the ongoing responsibility of the repair center handling the repair.
7. INSPECTION: Customer shall inspect the Product(s) promptly after receipt and shall notify HB in writing of any damage, visible defects, or missing Products within fifteen (15) days of delivery. Failure of Customer to give written notice of a claim within the inspection time period shall be deemed to be a waiver of the right to reject the Products, and conclusive proof that the Product(s) were received by Customer complete and without visible defect(s).
8. TAXES and DUTY: All orders are subject to any applicable federal, state and local taxes. Customer shall pay all such taxes imposed on each order, and all penalties and interest, if any, accrued therewith. All duty and/or taxes owed for international orders shall be paid by Customer to customs authorities of their respectful country. If Customer's ship-to address is within the state of California, Customer is subject to California sales tax on all purchases, unless HB is supplied with a valid and completed California Resale Certificate (Form CDTFA-230).
9. DISCLAIMER; LIMITATION OF LIABILITY: HB DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO CUSTOMER OR TO ANY OTHER PERSON FOR INJURY TO PERSON, OR DAMAGE TO AND/OR LOSS OF PROPERTY AND/OR VALUE, CAUSED BY ANY PRODUCT WHICH HAS BEEN MISUSED, USED NEGLIGENTLY, MODIFIED, REPAIRED BY UNAUTHORIZED PERSONS, OR IMPROPERLY INSTALLED OR MAINTAINED.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4, HB MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND HB SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
Customer agrees that HB will not be liable for any indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, rising in connection with this Contract, HB's provision of Products, or of any other HB obligations relating to this Contract, even if HB has been advised of the possibility of such damages. The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought.
HB's total liability under this Contract shall not exceed the amounts paid by Customer to HB for the Product(s).
10. USE AND INDEMNIFICATION: Customer agrees that Customer will read and understand the HB manual before using the Products.
Customer is aware that If Customer misuses a Product or is negligent in the use of a Product then serious injuries can occur. For example, if an Inflatable Product is not properly anchored per the HB's owner's manual, then a gust of wind can blow it over and hurt users. Customer agrees to use Products only in accordance with the HB owner's manual.
Customer will assure that the Product is used with proper adult supervision, and will be operated by properly-trained personnel.
Customer agrees to use Products in compliance with all relevant state and local laws.
Customer agrees that it will maintain a high quality of Inflatable Products, and will not rent or use any Inflatable Products that are damaged or substandard in quality.
Customer is solely responsible for the manner of use of the Products and other equipment. Customer is solely responsible for all signage, labels and warnings to consumers or other users of the Products and equipment, and for any and all other acts necessary, including user warnings and limitations (e.g. weight, height, age, medical condition limitations), to ensure the safety of the users. Customer shall use stakes, tie-downs, and other applicable devices necessary to ensure the safety of users.
Customer agrees to indemnify, defend, protect, and hold-harmless HB and its affiliate companies, assigns, officers, directors, employees, and insurers, against all claims, demands, losses, damages, fines, and suits by third parties against HB, and hold harmless and defend HB from actions and claims of third parties, including customers of Customer and users of the Products sold to Customer, arising out of or in connection with the use of Products or resulting from the breach of the Contract by Customer.
Without limiting the generality of the above. Customer agrees to indemnify HB against all claims for intellectual property infringement based on Customer-supplied artwork or design specifications.
11. TOLERANCES: All dimensions and weights stated in the catalog, website, or instruction material pertaining to Products sold by HB are approximate and within industry tolerances. HB, at its discretion, may substitute standard colors for similar colors if deemed necessary to complete an order on time. HB is not responsible for color matching of Products based on photographs or computer generated illustrations. Suppliers of vinyl materials used in Products cannot guarantee that each roll or batch of a listed color will be exactly consistent; therefore HB cannot guarantee exact color consistency. HB, at its discretion, may alter a design for any Product, without notice to Customer, if there is discovered to be an issue of safety or structural integrity.
12. INTELLECTUAL PROPERTY: All logos, Product names, trademarks, artwork, literature, photographs and designs used for the purpose of designing and producing HB Products, including Custom Products, are proprietary and Customer agrees that they shall be the sole property of HB. Any unauthorized reproduction of any of these items constitutes infringement and is punishable by law.
Customer represents and warrants that Customer has the right to use any Customer-supplied artwork, and all intellectual property incorporated into that artwork, and may legally sublicense such right to HB for the purposes of this Contract.
13. MODIFICATIONS: Prices are subject to adjustment if Customer requests changes in specifications, quantities, or delivery requirements after an order is placed. Change requests must be made and accepted in writing. All paragraphs of this Contract shall apply to the Products to which such changes apply, and no modification of the Ts & Cs hereof shall be binding on HB unless contained in a writing signed by authorized HB personnel and expressly stating that such terms are being modified and the nature of such modification. An order cannot be changed after 5 business days from the Effective Date without acceptance by HB. Any changes requested are subject to re-quotation of the final cost of the Product purchased and an appropriate new shipment date, if applicable.
14. CANCELLATION: Customer may cancel his/her order, in whole or in part, upon written notice to HB within 48 hours from the Effective Date, in which case Customer will only be liable for the payment of applicable credit card fees incurred by HB in connection with the order. Orders canceled after 48 hours may be subject to, at HB’s discretion, forfeiture of the Customer's deposit if: production has started; materials have been ordered; or Product has been reserved for Customer causing HB a loss of potential business.
15. RETURN POLICY: For any Product purchased from HB and returned for reasons unrelated to a warranty claim, a restocking fee of twenty-five percent (25%) of the price of the Products(s) returned will be paid by Customer. Customer will be responsible for charges for the shipping of the Product(s) returned. The Product(s) must be in an unused condition when returned. Customer will pay for any necessary repairs required to bring the Product(s) to a like-new condition. HB WILL NOT ACCEPT RETURNS FOR ANY CUSTOM MANUFACTURED PRODUCTS, including custom designs, custom ordered colors, or custom artwork not standard on the product(s) manufactured by HB.
16. GOVERNING LAW / JURISDICTION AND VENUE: In the event of litigation between the parties concerning the order or any Product(s) shipped to customer hereunder, such action shall be governed by the laws of California, U.S.A. Venue shall be in Los Angeles County, California, and the action shall be brought in the California or federal courts of appropriate jurisdiction.
Customer agrees to pay all of HB's legal costs and expenses related to HB's enforcement of its rights under this Contract.
17. INTEGRATION: There are no representations, warranties or conditions, expressed 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 Customer and accepted by HB. This Contract contains all of the promises, warranties, terms, and conditions of the agreement between the parties and supersedes any and all oral or implied promises, undertakings and prior agreements.