Limited Warranty And Terms And Conditions Of Sale
BACKYARD DREAMS, LLC
LIMITED WARRANTY and TERMS AND CONDITIONS OF SALE
The Products(s) (“Products”) listed in our website and promotional materials are intended solely for the purposes described in our sales and promotional material, on our website, on the applicable Product’s label, and/or on any other documentation accompanying such Product. The Products are also sold subject to and with the benefit of the limited warranties provided by the manufacturers of the Products as outlined herein.
A. TERMS AND CONDITIONS OF SALE
The Terms and Conditions of Sale are limited to those contained herein. Any additional or different terms in any forms delivered by the Customer are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products described in a Backyard Dreams, LLC (“Backyard Dreams”) invoice or other Backyard Dreams documentation, the Customer agrees to be bound by and accepts these Terms of Sale unless the Customer and Backyard Dreams have signed a separate written agreement, in which case the separate agreement will govern.
For the purpose of these Terms and Conditions of Sale, “Customer” means the person or entity that purchases, places an order or otherwise shops at or from Backyard Dreams.
These Terms and Conditions of Sale constitute a binding agreement between the Customer and Backyard Dreams.
The Customer accepts these Terms and Conditions of Sale by making a purchase, placing an order or otherwise purchasing goods and/or services from Backyard Dreams. These Terms and Conditions of Sale are subject to change without notice, except that the Terms and Conditions of Sale posted on our website at the time the Customer initially places or modifies an order will govern the order in question.
These Terms and Conditions of Sale constitute the entire agreement between the Customer and Backyard Dreams relating to the Terms and Conditions of Sale of products and/or services by or on behalf of Backyard Dreams. The Customer consents to receiving electronic records, which may be provided via the Internet or e-mail application connected to the Internet.
The Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. The Customer agrees that the Terms and Conditions of Sale contained herein and in a Backyard Dreams invoice or other documentation will control. No other course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Sale or any purchase order or invoice related thereto.
B. SHIPMENTS AND RISK OF LOSS
When the Customer places an order and requests that Backyard Dreams arranges shipping, the order will be shipped to an address designated by the Customer as long as that shipping address is compliant with any normal shipping restrictions. The risk of loss for items purchased from Backyard Dreams pass to the Customer upon delivery of the items to the carrier. The Customer is responsible for filing any claims with carriers for damaged and/or lost shipments. The Customer will be responsible for all shipping and related charges unless otherwise agreed in writing with Backyard Dreams.
Backyard Dreams will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product availability, carrier delays, delays due to fire, severe weather conditions, power failure, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government agency.
Backyard Dreams has no control over the usage of any part or Product. The Customer shall read and comply with all safety instructions in specific product documentation, including those shown on this website, and to exercise good judgment as to the proper selection, installation, use and maintenance of any product.
The Customer agrees to defend, indemnify, and hold harmless Backyard Dreams and its officers, members, managers, employees, agents, successors, or assigns from all liabilities, claims, and expenses, including attorneys’ fees, that arise from Customer’s (a) breach of these Terms and Conditions of Sale; (b) the use of any Product or part purchased from Backyard Dreams in any manner contrary to all or any industry and/or Backyard Dreams guidelines, safety advisories, and/or installation and maintenance instructions. Backyard Dreams’ reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Customer, in which event Customer will cooperate with Backyard Dreams in asserting any available defenses.
F. PRICING INFORMATION AND AVAILABILITY DISCLAIMER
All pricing is subject to change. Backyard Dreams reserves the right to make adjustments to pricing and product offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, raw material price changes and error in advertisements. All orders are subject to product availability. Therefore, Backyard Dreams cannot guarantee that it will be able to fulfill Customer’s orders.
G. ORDERS AND PAYMENT TERMS
Orders are not binding upon Backyard Dreams until accepted in writing by Backyard Dreams. Backyard Dreams reserves the right to refuse service to anyone. Terms of payment are within the sole discretion of Backyard Dreams. The selection of a color choice by the customer is final and may only be changed at the discretion of Backyard Dreams.
If any part of these Terms and Conditions of Sale is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
I. RETURN PRIVILEGES
The Customer agrees to inspect all goods and shipping papers carefully and thoroughly upon delivery. No claim for shortage or damaged goods will be valid or enforceable against Backyard Dreams unless the Customer complies with the Backyard Dreams policy on returns and exchanges. All deliveries are subject to a 20% restocking fee if delivery is refused or Products are returned to Backyard Dreams for a credit or partial credit.
J. THIRD PARTY WARRANTIES
The Customer understands that the Products and certain accessory components purchased by the Customer are not manufactured by Backyard Dreams, in which case the only warranties offered are those of the manufacturer of those Products or accessory components (as the case may be). Backyard Dreams hereby expressly disclaims all warranties either express or implied, related to products manufactured or sold by third parties, including, without limitation, any warranty of merchantability, fitness for particular purpose or non-infringement. This disclaimer does not affect the terms of any manufacturer’s limited warranty.
K. ELIGIBILITY FOR WARRANTY COVERAGE
The Products supplied by Backyard Dreams are sold with the benefit of and subject to the limited warranty (in this paragraph K and paragraphs L and M, “limited warranty”) provided by the manufacturer of the Product. If the Customer discovers that the Product does not conform to the applicable specifications within the period of the limited warranty, the Customer must promptly notify Backyard Dreams in writing within fifteen (15) days of discovery of such defects. Any notification must include proof of purchase, as set forth below. Backyard Dreams will investigate any warranty claims, determine the appropriate course of action in consultation with the manufacturer of the Product and notify the Customer in writing of such determination. Rights under this limited warranty shall not be available unless Backyard Dreams receives such written notification of non-compliance from the Customer within the limited warranty period. The Customer shall examine the Products as soon as reasonably practicable after delivery. The Customer shall immediately notify Backyard Dreams of any incomplete or failed delivery, loss or damage during carriage or if the Products fail to comply with the Product manufacturer’s limited warranty. Unless the Customer so notifies Backyard Dreams within thirty (30) days after the date when the Customer became or ought reasonably to have become aware of any of the above, and in any event before the earlier of (i) three (3) months from the date of dispatch by Backyard Dreams; and (ii) ten (10) days after the Products have been used or put into process, the Customer shall be treated as having waived all claims connected with the matter which should have been notified.
L. APPLICABLE SPECIFICATIONS
The limited warranty is non-transferable and shall apply only to Customer that purchased a new product for personal or business use and not for the purpose of distribution or resale. Any replacement or purchase price credit for non-conforming products is subject to Backyard Dreams’ prior examination of the nonconforming products and its written approval, and is limited by the exclusions set forth below. Any replacement furnished by the manufacturer of the Product in fulfillment of the limited warranty is warranted only for the unexpired portion of the original warranty. Any replacement Products shall carry the same limited warranty from the date it is provided by the manufacturer of the Product. A color variance may occur between replacement Products as a result of normal weathering of the original Products and is not considered a material defect.
M. WHAT IS NOT COVERED BY THIS WARRANTY
Backyard Dreams and the manufacturer of the Product do not warrant any Products damaged by (a) any misuse, tampering or abuse by Customer or any third party; (b) exposure to or application of chemical compounds, including, but not limited to cleaning solvents; (c) exposure to abnormal weather conditions; (d) other alterations, improper installation or treatment including but not limited to wear and tear, or other use contrary to the label or to any instructions provided by Backyard Dreams or normal use restrictions applicable to Products of this type; (e) accident or the negligence of Customer or any third party or by disasters such as fire, flood, wind and lightning; (f) shipment; or (g) release at the request of Customer prior to an inspection and approval of such Products by Backyard Dream’s quality assurance technician. Backyard Dreams will not, under any circumstances, be responsible for installation other similar activities necessary to complete any replacement. It will be the Customer’s responsibility to follow all guidelines provided by the manufacturer of the Product(s) supplied by Backyard Dreams, including complying with such manufacturer’s limited warranty requirements.
N. INSTALLATION AND MAINTENANCE WARRANTY
Backyard Dreams warrants (“installation warranty”) that its installation services shall conform to the specifications provided by the manufacturer of the Products. The installation warranty is non-transferable and shall apply only to Customer that purchased a new product directly from Backyard Dreams for personal or business use and not for the purpose of distribution or resale, and which was installed solely by Backyard Dreams. If the Customer discovers that the installation does not conform to the applicable specifications, the Customer must promptly notify Backyard Dreams in writing within fifteen (15) days of completion of the installation. Backyard Dreams will investigate any installation warranty claims, determine the appropriate course of action in consultation with the Customer and notify the Customer in writing of such determination. Rights under this limited warranty shall not be available unless Backyard Dreams receives such written notification of non-compliance from the Customer within such fifteen (15) day period. The Customer shall examine the Products as soon as reasonably practicable after delivery and completion of installation. Unless the Customer so notifies Backyard Dreams within such fifteen (15) day period, the Customer shall be treated as having waived all claims connected with the matter which should have been notified.
BACKYARD DREAMS PROVIDES NO WARRANTIES OF ANY NATURE WHATSOEVER FOR MAINTENANCE WORK OR SERVICE WORK PERFORMED BY OR ON BEHALF OF BACKYARD DREAMS.
O. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH ABOVE, BACKYARD DREAMS MAKES NO WARRANTY OF ANY NATURE WHATSOEVER IN CONNECTION WITH THE PRODUCTS AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST CLAIMS BY ANY THIRD PARTY BY WAY OF INFRINGEMENT, PROPERTY DAMAGE, OR PERSONAL INJURY. BY ACCEPTANCE OF DELIVERY OF THE PRODUCTS THE CUSTOMER AFFIRMS THAT HE, SHE OR IT HAS RELIED ON HIS, HER OR ITS SKILL AND JUDGMENT IN SELECTING THE PRODUCTS AND DETERMINING THEIR SUITABILITY FOR HIS, HER OR ITS NEEDS. NO EMPLOYEE, AGENT, DISTRIBUTOR, SALESPERSON, DEALER, RETAILER OR OTHER REPRESENTATIVE OF BACKYARD DREAMS HAS THE AUTHORITY TO MAKE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR TO ALTER OR CHANGE THESE WARRANTIES EITHER ORALLY OR IN WRITING (INCLUDING IN ELECTRONIC COMMUNICATIONS).
P. LIMITATION OF REMEDIES
IT IS UNDERSTOOD AND AGREED THAT IN NO EVENT SHALL BACKYARD DREAMS BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING OUT OF ANY OF THE PRODUCTS OR THEIR USE OR OPERATION, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, MISREPRESNETATION, NEGLIGENCE, TORT OR OTHER LEGAL THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL LIABILITY OF BACKYARD DREAMS EXCEED THE TOTAL AMOUNT PAID BY ANY CUSTOMER FOR THE PRODUCTS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
Q. PROOF OF PURCHASE
Backyard Dreams may require proof of the date of purchase of any Products, so the Customer should retain her, his or its sales slip, invoice, purchase order or other evidence indicating date and full details of purchase.
R. STATE LAW AND OTHER JURISDICTION RIGHTS
Some states and other jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or limitation on the length of an implied warranty, so the above limitations or exclusions may not apply to you. This warranty gives the Customer specific legal rights, and the Customer may also have other rights, which vary from jurisdiction to jurisdiction.
S. GOVERNING LAW
These limited warranties and performance of Backyard Dreams obligations shall be governed by the laws of the State of Colorado, without reference to conflicts of law provisions. The Customer submits to the jurisdiction of and agrees that any lawsuit relating to any matter arising under this limited warranty initiated by or on behalf of the Customer shall be initiated in a state or federal court in the County of Denver, Colorado, United States of America. If the Customer is located outside the United States, the provisions of the United Nations Convention for the International Sale of Goods shall be expressly excluded from the terms of sale.
The information contained herein is accurate to the best of Backyard Dreams knowledge, but is not guaranteed and is subject to change without notice. Backyard Dreams reserves the right to make changes to specifications and descriptions of the Products at any time. For additional and up-to-date information, Customers and prospective Customers are urged to visit the Backyard Dreams website, www.backyard-dreams.com. Backyard Dreams hereby rejects any terms or conditions submitted by a Customer which are in conflict with or enlarge the terms of this Limited Warranty, whether or not Backyard Dreams actually notifies Customer of such rejection or objection.
* APPLICATIONS NOTE: Failure to maintain the product as per Backyard Dreams’ installation guidelines, and manufactures guidelines, will void all warranties relating to wear and tear and performance of the Products.