PlayCare, LLC (“Company”) submits this proposal, which may include drawings, site plans, renderings, color selections, cost projections for the products or services listed below (collectively, “Proposal”). The prices stated in the Proposal are only valid for 30 days from the date of the Proposal (“Proposal Date”) and are subject to credit approval. If, in Company’s sole discretion, Purchaser (as defined herein) does not have sufficient credit, Company may terminate the Proposal. The price set forth in the Proposal is Company’s good faith estimated based on the information received by Company from Purchaser and is subject to change based on actual field measurements, placement, and other information in contravention of the details provided by Purchaser. The buyer identified in the Proposal (“Purchaser”) is responsible for paying any and all applicable sales or use tax. Note that if any sales or use tax is itemized in the Proposal such sales or use tax is an estimate and may change from the Proposal Date to when the Project is completed. The final invoice will reflect the Company’s best estimate of the correct sales or use tax. Purchaser is ultimately responsible for all sales and use taxes. If the proposal involves installation, the installation pricing set forth in the Proposal covers install of Company supplied products only, unless otherwise specified in writing. Execution of this Proposal does not modify the estimated completion date set forth in Proposal or otherwise constitute project commencement and/or the beginning of the countdown to delivery or completion.
Thorough Purchaser review and pre-approval of the Proposal and all other designs or specifications related thereto is essential to accomplishing accurate production, delivery and construction of related goods or services set forth in the Proposal (collectively the “Project”). Purchaser must review and pre-approve any specifications, details, site plans, designs and/or renderings in the Proposal to ensure that the proposed Project fits within Purchaser’s space, complies with Purchaser’s color selections, the dimensions of the site in conjunction with the dimensions and footprint of the proposed Project, and otherwise satisfies all of Purchaser’s requirements (“Purchaser’s Requirements”). If the Project involves installation, surfacing, or the sales of goods, it is recommended that Purchaser’s architect and/or general contractor review and confirm that the proposed Project meets all of Purchaser’s Requirements. Color samples, if applicable to the Project, can be provided upon request. Subsequent to Purchaser approval (which shall be effective upon Purchaser’s execution of the Proposal), Company is not responsible for redesign of the Project, changes to the scope of the Project, or additional parts and labor to alleviate any potential interference of the Project with Purchaser’s building structure and mechanics, or to accommodate additional or altered access or egress around Project. Additionally, Company will not be responsible for color changes that differ from the Proposal renderings, if applicable.
Purchaser acknowledges and agrees that Purchaser’s authorized representative has reviewed the Proposal and confirmed full and satisfactory compliance with Purchaser’s Requirements. Purchaser hereby approves the Proposal for the Project including but not limited to all specifications, details, designs, site plan, and colors. ADDITIONALLY, BY EXECUTING THIS PROPOSAL, PURCHASER DOES HEREBY AGREE TO PURCHASE THE GOODS AND SERVICES DESCRIBED HEREIN, AND DOES HEREBY ACCEPT THE EXCLUSIVE TERMS AND CONDITIONS STATED BELOW IN THIS PROPOSAL.
Terms and Conditions
- Exclusive Terms of Purchase: The Proposal and the products and services contemplated therein (the “Agreement”) are limited to the Terms and Conditions contained in the Proposal and set out herein. Any additional or different terms proposed by Purchaser in any purchase order or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. Any such proposed terms or conditions shall be void and the terms of this Proposal (as supplemented by Change Proposals, defined herein, and invoices from Company containing final calculations of any estimates provided herein) shall constitute the complete and exclusive statement of the Terms and Conditions of the Proposal between the parties. Company’s failure to object to conflicting, different, or additional terms and conditions in any other document shall not be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
- Entire Agreement/Modification/Validity: The Agreement represents and contains the entire agreement between the parties, and such Agreement shall inure to the benefit of and be enforceable by and against the parties, their heirs, personal representatives, successors, and assigns, including successors by way of reorganization and/or liquidation. Prior discussion or oral representations by the parties not contained in the Agreement are not part of the Agreement. Purchaser hereby acknowledges that it has not received or relied upon any statements or representations by Company or its agents which are not expressly stipulated herein, including and without limitation, any statements as to the Project and the related goods, services and warranties provided hereunder. This Agreement can only be modified in a writing signed by the parties hereto or their duly authorized agents (“Change Proposal”). The invalidity of any portion of the Agreement shall not affect the force and effect of the remaining valid portions hereof.
- Payment, Title, Taxes: Purchaser shall pay Company for the Project within the time period indicated in the Proposal. If a down payment or advance payment is required pursuant to the Proposal, Purchaser must make such payment before Company is obligated to begin performance of the Project. Delays in payment may cause estimated shipment, performance and/or installation dates to change accordingly. Company retains all right, title and interest in and to the Project and all related goods and services until Purchaser has paid for the Project in full. Applicable state and/or local sales and use taxes are determined at the time of shipment and are the responsibility of the Purchaser. All materials, goods, and services will not be separately itemized on the invoice, unless requested by Purchaser, in which case Company will provide a separately itemized invoice at Purchaser’s cost.
- Shipping Terms: Unless otherwise specified in the Proposal, shipping terms are FOB Manufacturer’s facility via common carrier designated by Company.
- Services: In the event that the Proposal includes services, including but not limited to installation, cleaning, or repair, Company and/or its installation subcontractor will perform the work only in the locations agreed to by Company in the Proposal. The parties agree that service workdays are at Company’s discretion unless otherwise agreed upon by the parties in writing and may be 10 to 12 hours/day, 7 days/week. If Purchaser restricts work hours/days, reasonable advance written notification is required. Holidays work schedules must be mutually agreed upon in writing; Company’s holiday schedule includes all Federal Holidays, along with the day before and the day after such Federal Holiday. Union labor and/or prevailing wages are not included in this Proposal, unless specifically noted therein. A signed Change Proposal is required for any additional installation fees or costs.
- Permits and Licenses: Purchaser shall apply for and obtain all necessary building and other governmental permits and licenses, which may be required in connection with the Project. Purchaser agrees to bear any costs or penalties incurred by Company related to Purchaser’s failure to obtain any such permits or licenses. Purchaser represents and warrants that it will comply with all applicable laws, including but not limited to any special requirements of local laws, ordinances and governmental regulations relating to the Project. Structural calculations and sealed/stamped drawings are not included with this Proposal. If applicable to the Project and required by Purchaser, such structural calculations and/or sealed/stamped drawings can be provided at an additional charge to Purchaser to be determined by Change Proposal.
- Site Readiness: Prior to Company commencing services, Purchaser must complete all work or other preparation necessary to ensure that Company and/or its installation subcontractor are able to safely perform the services, commence the Project, and/or install the goods on the premises specified in the Proposal (the “Premises”) pursuant to the Proposal. The Premises must be accessible, clean, clear, and free of other trades. If Purchaser has not, in Company’s sole discretion, acted reasonably to properly prepare the Premises, Company may elect to prepare the Premises and charge Purchaser $750.00/day/person, plus any other applicable expenses, for such preparation work. If Company determines that it and/or its installation subcontractor are unable to deliver and/or start services as scheduled as a result of Purchaser’s failure to adequately prepare the Premises for the Project, Company may elect to charge a change/remobilization fee which shall include actual costs incurred by Company, including lost profit, up to $2,500.00, and reschedule the services based upon Company’s availability.
- Unanticipated Conditions. If installation is required pursuant to the Proposal, in the event that unexpected soil conditions, such as subsurface rock, are encountered during installation, additional costs to the Purchaser will apply. Furthermore, in the event that Company encounters any unexpected and unanticipated on-site conditions during Company’s performance of services and/or Project (including but not limited to, floor space arrangement, use zones, interaction with other products, special effects, safety considerations, or weather) that result in necessary and/or requested alterations and/or additions to the Project (or parts thereof) to facilitate proper performance or that otherwise cause additional design, material, assembly, installation, and/or performance costs that are not already reflected in the Proposal amount (“Additional Costs”), Company will inform Purchaser and all such Additional Costs will be added to the final payment invoice or billed separately to Purchaser.
- Delivery and Disposal: Purchaser must provide prompt notice of any requested delivery date/performance changes and delays. No request for an estimated delivery date/performance change shall be effective without a signed Change Proposal. If goods for the Project have been loaded on to the carrier or otherwise have been prepared for loading on to carrier prior to Purchaser’s notice of date change, Company may charge no less than $80.00/day for on-site or off-site storage fees during the delay. In the event installation is required under the Proposal, the quoted installation price is predicated upon installation occurring within 100 feet of where the delivery truck is unloaded, and where the dumpster is located. Greater distances will result in additional charges. A dumpster is to be provided by Purchaser. Notwithstanding anything herein to the contrary, Company will use reasonable efforts to perform all services and deliver all goods in the estimated timeframes specifies in the Proposal, but all delivery schedules and services timelines are Company’s best estimates only and are not guaranteed.
- Risk of Loss/Receipt and Storage of Goods/Insurance: Unless otherwise specified in the Proposal and/or shipping terms, upon delivery of goods by Company to carrier, Purchaser assumes all risk of loss or destruction of or damage to such goods regardless of cause, and the occurrence of any such casualty shall not relieve Purchaser from its obligations hereunder and applicable invoices. Purchaser is responsible for and shall secure all goods stored on the Premises. Until such time as all amounts due hereunder are paid in full, Purchaser shall maintain adequate insurance to cover the goods against all losses, including but not limited to theft, fire, damage, destruction or other casualty.
- Restrictions. For Projects that include the sale of goods, until such time as all amounts due with respect to this Proposal/Agreement are paid in full, Purchaser shall not sell or lease, mortgage, pledge or encumber the Project or any goods related thereto, permit it to be levied upon or attached under any legal process, create or permit to be created any security interest therein (except that of Company hereunder) or otherwise dispose of the same or any of Purchaser’s rights therein. Until Purchaser has paid in full, Purchaser will not remove or permit the removal of the goods purchased by Purchaser in connection with the Project to any location other than the Premises.
- Purchase Money Security Interest. Purchaser hereby grants, pledges and assigns to Company, and Company hereby reserves a purchase money security interest in, the goods provided under the Proposal to secure the payment and performance in full of all of Purchaser’s obligations hereunder. Purchaser agrees that Company may file one or more financing statements to allow it to perfect, acquire and maintain a superior security interest in such goods
- Purchaser Default. The failure of Purchaser to make payment when due under any invoice issued by Company pursuant to the terms of this Agreement, or Purchaser’s failure to otherwise comply with the terms of this Agreement, shall constitute a default (“Event of Default”).
- Company Remedies. If an Event of Default shall occur, Company shall have all remedies available to it at law or equity (including, in the event of the sale of goods, all remedies afforded a secured creditor under the Uniform Commercial Code). Purchaser agrees to assist and cooperate with Company to accomplish its filing and enforcement of mechanic’s or other liens with respect to the goods or Company’s repossession of the Project, and Purchaser expressly waives all claims to a right to possess the Project and related goods after an Event of Default. All remedies are cumulative and not alternative, and no exercise by Company of a remedy, will prohibit or waive the exercise of any other remedy otherwise available against Purchaser or others.
- Delinquency Charges. Interest shall accrue on amounts past due and payable under this Proposal at the rate of eight (8) percent per annum, or at the then highest allowable interest rate per annum under the law of the state in which Purchaser’s principal office is located, whichever is less.
- Attorney’s Fees & Costs. In the event that Company retains one or more attorneys in connection with any Event of Default hereunder, Purchaser shall pay such attorneys’ fees plus all other costs of collection as are incurred in enforcing Company’s rights hereunder.
- Waiver. Company may in its sole discretion waive a default hereunder, or under any invoice or other agreement between Purchaser and Company, or cure such a default at Purchaser’s expense, but shall have no obligation to do either. No waiver shall be deemed to have taken place unless it is in writing, signed by Company. Any one waiver shall not constitute a waiver of other defaults or the same kind of default at another time, or a forfeiture of any rights provided to Company hereunder or under any Invoice.
- Purchaser’s Acceptance. Purchaser shall have ten (10) days following Company’s completion of the Project to inspect Company’s work. If Purchaser does not notify Company in writing of a defect in the Project within such ten (10) day period, the Project shall be deemed to accord with Purchaser’s Requirements and Purchaser shall be deemed to have accepted the Project.
- Limited Warranty and Limitation of Liability: In addition to any other warranties specified in the Proposal, with respect to any goods incorporated into the Project, applicable manufacturer’s warranties will apply, if assignable, and if not assignable then Company will assist Purchaser in obtaining the benefits of such warranties. Such warranty extends only to the original Purchaser and is not transferrable. In addition, Company warrants it will perform service required pursuant to the Project in a professional and workmanlike manner. The warranties provided herein do not cover cosmetic damage or flaws occurring under normal use, such as surface scratches, minor chips, hairline cracks, dents, marring, efflorescence, color fade, discoloration, corrosion/rust, for raying, or, with respect to materials, any other exclusion set forth in an applicable manufacturer’s warranty. Furthermore all warranties will be void if : (i) the Project or any portion thereof has been modified, altered, or repaired by unauthorized third parties; (ii) the Project or any portion thereof has not been used as designed or intended, or misused; (iii) non-Company parts have been added to the Project or substituted without Company’s written consent; (iv) the Project or any portion thereof has been removed from its original location and re-installed elsewhere; or (v) the Project or any portion thereof has been damaged due to excessive wear and tear, vandalism, abnormal use, abuse, negligence, environmental factors (such as wind-blown sand, salt spray, or airborne emissions from industrial sources), extreme weather (such as hail, flooding, lightning, tornados, sandstorms, earthquakes, or wind storms), and acts of God. Company does not warrant that any particular color will be available for any specific period of time, and reserves the right, its sole discretion, to discontinue any color for any reason. THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY FOR COMPANY’S PRODUCTS, THE PROJECT, AND ALL RELATED GOODS AND IS IN LIEU OF ALL OTHER WARRANTIES,EXPRESS OR IMPLIED, IN LAW OR IN FACT. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR PERFORMANCE OR TRADE USAGE. COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFIT OR USE, ARISING OUT OF A BREACH OF THIS WARRANTY OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, OPERATION OR REPAIR OF ANY GOODS OR SERVICES. IN NO EVENT WILL SELLER BE LIABLE UNDER THE PROPOSAL OR OTHERWISE RELATED TO THE PROJECT FOR ANY AMOUNT GREATER THAN THE PURCHASE PRICE OF THE PROJECT.
- Warranty Remedy: Purchaser must promptly notify Company of any defects in the Project immediately upon detection, and provide Company appropriate information to help Company identify and resolve the issue. At no cost to Purchaser, Company will act promptly to repair or replace defective workmanship at Company’s option and as Purchaser’s sole and exclusive remedy. Any defective goods shall be remedied in accordance with the manufacturer warranty, if applicable.
- Alterations, Maintenance and Repairs: Unless otherwise agreed to in writing by Company, Purchaser must not alter the Project or the goods associated therewith in any way without first obtaining express written authorization from Company. Any unauthorized alterations of the Project and related goods shall terminate any liability of Company for injuries resulting from use thereof. Purchaser hereby expressly agrees to defend, indemnify and hold Company harmless from and against any and all claims, suits, damages and expenses (including attorney’s fees) arising out of injuries to third parties while using an altered Project or goods related thereto. Purchaser must read and adhere to Company’s owner’s manual, maintenance and inspection documents, and all other product literature, and Purchaser is responsible for routine inspection, safe operation and maintenance of the completed Project.
- Indemnification. Purchaser agrees that Company shall not be liable to Purchaser for any liability, claim, loss, damage or expense of any kind arising out of or in any way related to Purchaser or any third party’s use or enjoyment of the Project or the related goods or the goods that services were performed on by Company, except to the extent the same is caused Company’s gross negligence or willful misconduct. Purchaser shall defend and hold Company harmless from and against any and all of the following whether actual or alleged, except to the extent caused by Company’s gross negligence or willful misconduct: all damages, claims, suits, proceedings, liens, penalties, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in manner related to Purchaser or any third party’s possession, use or operation of the goods, the goods the services were performed on, and/or the Project provided under this Proposal and resulting from injury or death to any person or damage to the property occurring on or about the Premises
- Change Proposals: A Change Proposal is a written instrument signed by the Purchaser and Company stating their agreement as to any amendment in the terms of this Agreement. Purchaser acknowledges that Change Proposals may result in delays and additional costs as set forth in the Change Proposal. The parties agree that all Change Proposals shall include appropriate adjustments in price and time frames relating to any requested amendments.
- Proposal Cancellation: If the Purchaser elects to cancel an executed Proposal, then Purchaser agrees to pay Purchaser all non-refundable expenses incurred by Company in its performance of the Proposal up to and including the date of cancellation, including any cancellation fees Company incurs with its suppliers and/or subcontractors, in addition to a cancellation fee of 10% of the price set forth in the Proposal for the Project.
- Law and Jurisdiction/Construction: This Agreement, each invoice and all other agreements between Purchaser and Company shall be interpreted and the parties’ obligations shall be governed by the laws of the State of Ohio without reference to its choice of law provisions. Purchaser hereby consents and submits to the personal jurisdiction of the state and federal courts located in Montgomery County, Ohio.
- Assignment: Company may assign this Agreement and its rights to any payment thereunder to a third party without the prior consent of the Purchaser. This Agreement and the rights of the Purchaser hereunder shall not be assignable by the Purchaser without prior written consent of Company.
- Force Majeure Event: Except for Customer’s payment obligations for portions of the Project which have already been performed (including goods delivered related thereto), a party shall not be deemed in breach of this Agreement if said party is unable to complete its obligations outlined in this Proposal, or any portion thereof, by reason of fire, earthquake, labor dispute, act of God or public enemy, pandemic, epidemic, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond said party’s control (collectively, “Force Majeure Event”).
- Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which shall constitute an original. The facsimile or other electronic transmission of any signed original document, and retransmission of any signed facsimile or other electronic transmission, shall be the same as the transmission of an original. At the request of either party, the parties will confirm facsimile or other electronically transmitted signatures by signing an original document.
- Applicability: These Service Terms (these “Terms”), along with the Playground Service Agreement, proposal, or quote to which these Terms apply (the “Service Agreement”), and PlayCare’s Service Guidelines (available at playcareservice.com/guidelines, and referred to as the “Service Guidelines”). These Terms, the Service Agreement, and the Service Guidelines are collectively referred to as the “Agreement” and are the only terms which govern the sale of goods and services provided by PlayCare, LLC (“PlayCare”) to the customer named in the Service Agreement (“Customer”). These Terms govern PlayCare’s provision of cleaning services, including PlayCare’s Monthly Comprehensive Cleaning & Safety Assessment services, to Customer, all as described in the Service Agreement (collectively, the “Services”).
- Price and Payment Terms: Customer will pay for the Services the amounts set forth in the Service Agreement. All invoiced amounts are due to PlayCare upon completion of Services or presentation of invoice, whichever occurs first. Customer is permitted to pre-pay any fees, but refunds will not be issued if this Agreement is terminated prior to completion of all Services. Customer will pay interest on all payments more than 30 days after completion of Services at the rate of 1.5% per month calculated daily and compounded monthly. Customer will reimburse PlayCare for all costs incurred in collecting any late payments, including without limitation reasonable attorneys’ fees Applicable state and/or local sales and use taxes are the responsibility of Customer.
- Scope; Condition of Premises: Customer recognizes and acknowledges the uncertainties related to the Services, which often require a phased or exploratory approach, and the need for additional services often does not become apparent during the initial inspection and preparation of the Service Agreement. If changed or unanticipated conditions make additional services necessary or result in additional costs or time for performance (“Additional Services”), PlayCare will make reasonable efforts to notify Customer regarding the appropriate changes to the scope of services, price, and estimated schedule of completion. Customer acknowledges, however, that the existence of certain changed or unanticipated conditions may necessitate Additional Services by PlayCare in accordance with standard protocol and/or applicable law, and Customer authorizes PlayCare to take such actions and agrees to pay PlayCare’s standard rates and for any expenses reasonably incurred in connection with PlayCare’s performance of such Additional Services.
- Term: The term of this Agreement shall be one (1) year from the date on which the Service Agreement is executed, unless terminated earlier as provided in this Agreement. Unless either party notifies the other party of its intent not to renew the term of this Agreement no less than sixty (60) days prior to the expiration of the term, the term of this Agreement shall automatically renew for successive one (1) year termsIf Customer terminates prior to the end of the then-current annual term, Customer will pay an early termination fee of the full monthly recurring fees under the Service Agreement for the number of months remaining in the applicable annual term (“Early Termination Fee”). The parties agree that the Early Termination Fee is a material inducement for PlayCare to provide the pricing to you set out in the Service Agreement, and that without the Early Termination Fee, this pricing would not have been offered.
- Limited Warranty. PlayCare warrants to Customer that it will use reasonable efforts to perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner consistent with standard practice. PlayCare does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 5, PLAYCARE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED. PLAYCARE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT.
- Inspection and Cure: Upon completion of each Service, Customer shall promptly perform a post-Service inspection and sign-off on all Service work by executing PlayCare’s work order acknowledgment. Customer’s failure to perform such inspection and execute such acknowledgment within 24 hours of completion of Service shall be deemed an acknowledgment that Customer accepts the Service work as having been satisfactorily completed, and Customer hereby authorizes PlayCare to execute the acknowledgment on Customer’s behalf after such 24-hour period. PlayCare will not be liable to Customer unless Customer gives written notice of the insufficiently performed services, reasonably described, to PlayCare prior to signing PlayCare’s work order acknowledgment or within 24 hours after completion of Service, whichever occurs first. PlayCare shall have the opportunity to reasonably verify Customer’s claim that the Services performed were defective, and PlayCare shall be given a reasonable opportunity to remedy the defects. With respect to a claim for defective work, if PlayCare is unable to repair or re-perform the applicable Services in a professional and workmanlike manner then PlayCare will credit or refund the price of such Services. THE REMEDIES SET FORTH HEREIN WILL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PLAYCARE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH ABOVE.
- Exclusive Terms of Purchase: This Agreement is limited to the Service Agreement, the Service Guidelines, and these Terms. Any additional or different terms proposed by Customer in any purchase order or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. Any such proposed terms or conditions shall be void and the terms of this Agreement shall constitute the complete and exclusive statement of the terms and conditions between the parties. PlayCare’s failure to object to conflicting, different, or additional terms and conditions in any other document shall not be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
- No Professional Services: In addition to the foregoing, Customer acknowledges and understands that (a) PlayCare’s Services are not professional services; (b) PlayCare’s safety assessments and checklists are intended to assess the general condition of Customer’s playground equipment and are not meant to be a complete, in-depth safety inspection of the playground equipment or to otherwise warrant that the equipment is safe to use or otherwise free of defects; and (c) PlayCare’s on-site safety assessments and checklists are not intended to replace the advice or assessment of a Certified Playground Safety Inspector.
- Schedule: Services are provided during PlayCare’s service hours specified in the Service Guidelines. Holiday work schedules must be mutually agreed upon in writing; PlayCare’s holiday schedule includes all Federal Holidays, along with the day before and the day after such Federal Holiday. Customer shall make the work site available on the days and times as scheduled by PlayCare. Customer must provide at least 48 hours’ prior written notice of any requested date changes and delays. No request for date change shall be effective without PlayCare’s approval, which may be withheld or conditioned in PlayCare’s reasonable discretion. Failure to have the work site available at the scheduled time will result in additional labor charges at current hourly rates ($200/hr.) for all time spent waiting for the work site to be made available. If PlayCare determines that it and/or its subcontractor are unable to deliver and/or start services as scheduled as a result of Customer’s failure to adequately prepare the job site for the Service or Customer’s cancellation with less than 48 hours’ prior notice, Customer shall pay to PlayCare a change/remobilization fee which shall include actual costs incurred by PlayCare, including lost profit, up to the full value of the Service, and reschedule the Service based upon PlayCare’s availability. In the event PlayCare is asked to stop any particular Service after it has commenced, Customer shall nonetheless be responsible for the entire monthly fee.
- Site Conditions: Customer shall authorize all safety-related repairs and shall lock-out the playground equipment until such safety-related repairs are completed. Safety-related repairs shall be billed at PlayCare’s standard rates and are not included in the monthly fee set forth in the Service Agreement. Nothing in this Agreement shall relieve Customer from its obligations to perform normal day-to-day maintenance on its playground equipment as per the applicable owner’s manual supplied by the manufacturer and/or PlayCare, including without limitation normal cleaning procedures, checks, and adjustments designed for operational use. Customer shall keep reasonable records relating to the use and performance of the playground equipment. PlayCare shall not be liable for any and all loss or damage due to Customer’s failure to observe any of the foregoing or any applicable Service Terms. This Agreement is conditional upon the site of the work being free from asbestos, lead-based paint, and other toxic substances
- Delays: If PlayCare’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, PlayCare will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Labor: Union labor, prevailing wages, certified payroll, and compliance with Davis Bacon Act are not included in the Agreement, unless specifically noted in the Service Agreement.
- Service Exclusions: These Terms do not apply to PlayCare’s sale, service, and/or installation of repair parts or equipment. The Services do not include, without limitation: (a) repair of damage arising from the act, error, fault, neglect, misuse, improper operation, omission, or failure to comply with the Agreement by Customer or its servants, agents, PlayCares, or invitees or any person, whether or not that person is under the control or direction or authority of the Customer; (b) repair of damage arising from changes, alterations, additions, or modifications of the playground equipment by a person other than PlayCare; (c) furnishing or supplying maintenance of accessories, attachments, supplies, spare parts, consumables, or items associated with the playground equipment unless specifically agreed in writing between the parties; or (d) any areas that cannot be accessed or serviced safely and in accordance with OSHA-approved methods, all as determined by PlayCare in its reasonable discretion.
- Liability: IN NO EVENT SHALL PLAYCARE BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. PLAYCARE’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO PLAYCARE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.
- Disputes: PLAYCARE AND CUSTOMER EACH HEREBY WAIVES ANY RIGHT IT, HE, OR THEY MIGHT HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR DISPUTE BASED ON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE AGREEMENT, THE SERVICES, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, ORAL OR WRITTEN STATEMENT, OR ACTION OF PLAYCARE OR YOU. PlayCare and Customer agree to pursue resolution of any dispute arising hereunder or in connection with this Agreement or the services through binding arbitration as provided in this agreement. PlayCare will select the arbitrator to conduct the proceeding. The decision of the arbitrator will be final and binding on all parties. It is the intent of the parties that any arbitration will be concluded as quickly as reasonably practicable. In the event that you initiate arbitration to determine and/or enforce your rights under this agreement and you are unsuccessful in maintaining the claim in arbitration or elsewhere, you shall pay, reimburse, and indemnify PlayCare with respect to all costs, including attorneys’ fees, incurred by PlayCare in such action. The location of all arbitrations will be in Dayton, Ohio.
- Miscellaneous:The Agreement represents and contains the entire agreement between the parties, and such Agreement shall inure to the benefit of and be enforceable by and against the parties, their heirs, personal representatives, successors, and assigns. Prior discussion or oral representations by the parties not contained in the Agreement are not part of the Agreement. The Services shall not be construed as a rebuilding, building, or construction of a home or building. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of Ohio. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by each party.
Updated April 2022
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