Terms and Conditions

TERMS AND CONDITIONS

  1. Terms Paramount

1.1 In the event any of the terms of this Contract are different from or additional to those proposed by the Buyer in his purchase  order, or those contained in any letter of credit or other document incidental to this Contract, the terms of this Contract shall .

  1. Complete Agreement

2.1 This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplementing or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement, even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.

  1. Amendment 111

3.1 No amendment or modification of this Contract shall be valid unless it is in writing and signed by the party to be charged.

3.2 No agent shall have authority to incur, on Seller’s behalf, any obligations or liabilities other than those contained in this Agreement.

  1. Services

4.1 Seller will have the right to suspend the provision of the Services (including the manufacture and delivery of the Ride materials), on any or all phases, if any payment from Buyer is delinquent for more than 5 Business Days past Payment Due Date. Seller will not have any obligation to continue provision of the Services, or delivery of the Ride materials, until all such delinquent sums, along with any accrued interest (2% monthly or the maximum rate allowed by applicable law), are paid in full by the Buyer. Further, if the Down Payment is delayed, Seller may, at its discretion, delay engineering, manufacturing and shipment by the same number of .

4.2 Buyer is responsible for any additional wages, costs, and expenses of Seller’s personnel or direct subcontractors due to any delay in travel or quarantine of Seller’s personnel or direct subcontractors.

  1. Delivery

5.1 The goods shall be delivered to the location and in the manner as agreed upon by the parties.

5.2 Following the delivery of the Ride materials, the Buyer shall be solely responsible for loss or damage to any of the materials delivered by the Seller. Seller recommends Buyer maintain proper insurance coverages, including but not limited to, Shipping and Course of Construction Insurance for the value of the Purchase Price of the Ride up to the completion .

  1. Title

6.1 Title to the goods shall remain with the Seller until Seller actually receives payment in full for the goods, unless otherwise expressly provided in the terms appearing on the face of this Contract.

6.2 Seller shall retain a security interest on the goods sold on credit to Buyer, including all rides sold to Buyer, all parts, attachments and additions thereto now or hereafter acquired and all replacements and substitutions therefore and all proceeds from the sale of such rides, including accounts receivable, until paid in full by Buyer (the “Ride”). Seller may file any financing statements or their equivalent in any jurisdiction at any time it deems necessary to maintain its interest, with or without the signature of Buyer; Buyer agrees to execute any financing statements and any amendments thereto required by Seller and hereby specifically authorizes Seller to file such statements with its signature. Installment payments made by Buyer shall be applied to the Ride as follows: in the case of merchandise purchased on different dates, the item purchased first shall be deemed paid for first and in the case of merchandise purchased on the same date, the lowest priced items shall be deemed paid for first.

  1. Risk of Loss

7.1 Risk of loss, or damage to, or destruction of the goods shall be with the Buyer from and after delivery to Buyer ExWorks the Factory.

  1. Limited Warranty

8.1 New Rides – Seller warrants to the original Buyer only that each part of this amusement ride to be free from defects in workmanship and construction for a period of one (12 months or specified number of cycles) from the date of delivery of new under normal use and service.  Select items that are explicitly defined at the time of sale are eligible for two seasons of warranty coverage (24 months or specified number of cycles.)  Normal wear items are to be free of defects and will need to be replaced at Buyer’s expense based on normal usage.

8.2 208 replacement track is be free from defects in workmanship and construction for a period of sixty (60) months from the date of .

8.3 Repair or Refurbishment Services by Seller will be performed in a good and workmanlike manner (“Services Warranty”).  The Services Warranty is valid ONLY for specific work performed (This will include only the items specifically called out on any invoice for work completed.) for a period of 90 days from the date the Services  are completed and the Buyer has accepted completion of specified work.   Buyer’s sole and exclusive remedy, and Seller’s entire liability under the Services Warranty, is the repair of any nonconforming portion of the Services. The Services Warranty is valid only if the ride is returned, at Buyer’s expense, to Seller’s repair facilities. Any claim for repairs to be performed by other than a Seller facility must be approved in writing by Seller prior to commencement of any work. The Services Warranty extends only to the Buyer for whom the Services were provided and not any subsequent purchaser. Seller provides no other warranties concerning its services and disclaims any and all warranties, express or implied.

8.4. Parts – Seller warrants to the original Buyer only that Seller manufactured parts each to be free from defects in workmanship and construction for a period of twelve (12) months from the date of delivery of new under normal use and service.

Any warranties on Seller purchased parts are limited only to those written warranties provided by the applicable Part’s manufacturer.  Except for any such warranties made by original manufacturers, the parts are sold without any other warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, each of which is expressly disclaimed.

This warranty is limited to materials of Seller’s manufacturer or importation, and where the equipment has been used properly and given ordinary and necessary maintenance.

 

8.5 The scope of the Seller’s responsibility is limited to replacement parts or repair as determined by the Seller. The Buyer is responsible for all labor and equipment necessary to remove defective parts and install seller provided replacement . Should the Buyer wish to have repairs done at a place of its choosing, Buyer shall pay all costs and expenses, including but not limited to, traveling and sojourn expenses chosen by Buyer for such repairs. This warranty is expressly in lieu of any other express or implied warranties, including any implied warranty or merchantability or fitness for a particular purpose, and of any other obligation on the part of the seller.

  1. Indemnities

9.1 Seller shall indemnify, hold harmless and defend Buyer, its agents, officers, directors, and employees, from and against any and all losses, claims, suits, actions, penalties, assessments or liabilities of any kind or description (including reasonable attorneys’ fees) arising out of personal injuries (including death) or property damage received or sustained which are directly attributable to Seller’s sole negligence or its acts or omissions during its performance of the Services under this Agreement .

9.2 Buyer shall indemnify, hold harmless and defend Seller, their affiliates, agents, officers, directors, and employees, from and against any and all losses, claims, suits, actions, penalties, assessments or liabilities of any kind or description (including reasonable attorney’s fees) arising out of personal injuries (including death) or property damage received or sustained through or on account of Buyer’s changes or modifications to the design specifications; acts or omissions of Buyer during construction, installation, maintenance, inspections, operation of the Ride, including but not limited to, incorrect use or improper operation and maintenance; Buyer’s failure to comply with all applicable industry standards and regulations; the joint and/or concurrent act of negligence or acts and omissions of Buyer and any and all third parties, including subcontractors; and the joint and/or concurrent negligence or acts and omissions of the Buyer and any agent, servant or employee of the Buyer.

9.3 It is the intent of this section that the parties shall share any such loss or damage proportionately in amounts consistent with their respective fault. If Buyer and Seller are made a party to any claim, then Seller shall be entitled to appear, defend, or otherwise take part in the matter, at its own election, by counsel of its own choosing; and under such circumstances Buyer expressly agrees to waive any conflict of interest by counsel so chosen. If Buyer, by its own election, proceeds to appear, defend or otherwise take part in the matter, including Seller’s defense, Seller will retain the right of selection of counsel. If Seller or Buyers fails to undertake to defend, contest or protest against any claims with respect to which Buyer or Seller has provided reasonable notice of claim, as prescribed herein, Buyer or Seller shall then be entitled to undertake such action as shall be required to defend, contest or protect against any such claims. Seller shall indemnify Buyer for any and all costs incurred by Buyer as a result of the failure of Seller to properly defend under the circumstances described herein, and Buyer shall indemnify Seller for any and all costs, including attorney’s fees and other related expenses, including expert fees, incurred by Seller as a result of the failure of Buyer to defend.

9.4 The parties agree to cooperate with each other in the defense of any claim or suit arising out of the design, construction, use, maintenance, operation, or inspection of the Ride and will exchange any information regarding the design, construction, use, maintenance, operation or inspection of the Ride that the other may reasonably request, pursuant to joint defense agreement without waiving proprietary interest in any such materials, and each party will make available its representative for the purposes of testimony in any litigation involving the Ride. Such cooperation shall not be required in any action in law or arbitration which Buyer or Seller is had a party as a result of action initiated by the other.

  1. Claims

10.1 All claims of the Buyer for defects, non-conformity, loss, damages, errors, or shortage in goods delivered by Seller to Buyer under this Contract shall be made by Buyer in writing and delivered to the Seller within thirty (30) days after receipt of goods and before the goods or any part of them are put into operation or use, or in any way changed from the original condition. Such written notice of claim shall fully specify all claimed defects, non-conformity, loss, damages, errors or shortages in goods. All claims for loss, damages, errors, or shortage in goods must also be recorded on dock delivery receipt prior to removal of material from the pier or on inland Bill of Lading and/or trucker’s receipt of goods delivered to Buyer by Seller and a copy of such delivery records shall be submitted to Seller, together with the above-mentioned written notice of claim. Upon receipt of written notice of claim, Seller shall have the right to inspect the material. Any claims after 30 days will not be considered.

  1. Returns

11.1 Parts returned within 30 days from the date of purchase that are normal Seller stocked parts are returnable for a 25% restocking fee.   Normal stocking parts returned between 31 -180 days incur a 50% restocking fee.  Parts returned after 180 days will not be accepted. To be eligible for return, parts must be unused.  Refunds will be in the form of a parts credit to the Buyer.

11.2 Special order parts (non stock items, built or purchased for order) are not returnable.

 

  1. Notice of Claims

12.1 The receipt by Seller of a written notice of claim within the time above specified shall be a condition precedent to Buyer’s right to reject, cancel, replace or claim damages, or to bring any suit, proceeding or demand arbitration. Such failure by the Buyer to give timely written notice shall constitute an irrevocable acceptance of the goods and an admission that they fully comply with all the terms, conditions and specifications of this Contract.

  1. Limitation of Damages

13.1 Seller shall not be liable for prospective profits or special, incidental or consequential damages. Buyer’s sole and exclusive remedy, at Seller’s sole option, shall be either the repair or replacement of non-conforming goods. No goods shall be returned to the Seller without Seller’s written consent.

  1. Waivers

14.1 The failure of either party at anytime to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof constitute a waiver of any succeeding breach of the same or any other such provision, nor constitute a waiver of the provision itself.

  1. Severability of Clauses

15.1 In the event of any term, condition, covenant or portion of this Contract is held to be unconscionable or otherwise invalid, the remainder of this agreement will remain in full force and effect, and the Seller and Buyer hereby stipulate that such term, condition, covenant or portion of this Contract shall be limited and modified so as to avoid an unconscionable result, and as limited and modified shall become a part of this Contract. All titles used herein are for purposes of reference only.

  1. Arbitration

16.1 Any controversy arising under, out of, in connection with or relating to this Contract or any amendment thereof or the breach thereof shall be determined and settled by arbitration in a location determined by Seller, in accordance with the Rules of the American Arbitration Association. Any award rendered therein shall be final and binding on each and all parties thereto and their personal representatives and judgment may be entered thereon in any court having jurisdiction.

  1. Limitation of Actions

17.1 Any action, arbitration or proceeding for breach of this agreement must be commenced within one (1) year after the cause of action accrues.

  1. Applicable Law

18.1 This agreement shall be construed and enforced under the laws of the State of Idaho.

  1. Force Majeure

19.1 The Seller shall not be liable for any delay in shipment or delivery, non-delivery, or destruction or deterioration of all or any part of the merchandise, or for any other default in performance of this Contract arising from acts of God, perils of the sea, acts of or restrictions imposed by any governmental authority, fire, war, insurrection, riot or civil commotion, strikes or lockouts, public health crisis including epidemic or pandemic including COVID, partial or total interruption or loss or shortage of transportation or loading facilities, failure or delay in shipment on the part of any supplier or suppliers, floods, fires, drought, breakdown of machinery, accidents causing stoppage or work or from any other cause beyond control of the Seller, whether or not similar to the causes hereinbefore specified and shall not be deemed to be a breach of the Agreement. COVID, epidemic or pandemic shall not be a reason for Buyer to miss any scheduled payments. The Seller may, upon removal of cause, resume making shipments or deliveries and the Buyer is bound to accept such delayed shipment or delivery.

  1. Modification of Credit

20.1 Seller reserves the right at any time to alter, or suspend credit, or to change the credit terms provided herein, when in his sole opinion the financial condition of the Buyer so warrants. In such a case, in addition to any other remedies herein or by law provided, cash payment or satisfactory security from the Buyer may be required by the Seller before shipment, or, if the due date of payment by the Buyer under his Contract may be accelerated by the Seller. Failure to pay invoices at maturity date automatically makes all subsequent invoices immediately due and payable irrespective of terms, and Seller may withhold all subsequent deliveries until the full account is settled. Acceptance by the Seller of less than full payment shall not be a waiver of any of his rights. Security deposited or made available to the Seller by the buyer shall be taken as security for payments due under any other contract between the Buyer and Seller.

  1. Taxes

21.1 Buyer agrees to pay, in addition to the purchase price of the equipment, any applicable taxes (including without limitation sales and use taxes, and Valued Added Tax (“VAT”), Goods and Services Tax (“GST”)) and governmentally imposed fees arising from its purchase of Ride, materials and/or Services under this Agreement, or provide a tax-exempt certificate prior to invoicing or unless otherwise stipulated. Buyer hereby agrees to indemnify, reimburse and save Seller harmless in respect thereof. Upon request, Buyer shall provide Seller with evidence of Buyer’s payment of such taxes.

  1. Entire Agreement

22.1 This Agreement supersedes all prior understanding and agreements, whether oral or written, between the parties, and may not be changed orally and no change, amendment or modification thereof shall be binding unless set forth in writing and signed by the parties hereto. Any funds received are non-refundable. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year written on the front of this document.