SWINGIT COMMERCIAL LLC AND
BACKYARD RECREATION LLC
STANDARD TERMS AND CONDITIONS OF SALE
Effective on all Orders placed on or after January 1, 2020
1. ACKNOWLEDGEMENT; CONTRACT FORMATION.
These Standard Terms and Conditions of Sale (“Terms”) are the only terms which govern the sale of products, goods, materials, or other items (“Products”), and any and all services
(“Services”) by SwingIt Commercial LLC and Backyard Recreation LLC, both New Jersey limited liability companies, including all associated DBA (Doing Business As) names,
including but not limited to SwingIt Playsets, ProScapes by SwingIt, and any future or currently unlisted DBAs (collectively referred to as the “Company”), for the benefit of itself and/or its affiliates, as set forth on any purchase order or other order for Products or Services placed by the purchaser (“Order”) named on the applicable Order (“Purchaser”). All Orders
created or issued by the Company are unconditionally governed by and subject to these Terms. Notwithstanding anything herein to the contrary, the terms of a signed Order shall prevail over these Terms only to the extent they are inconsistent with the same. The Agreement (as defined herein) otherwise prevails over any other document, and any additional or different terms or conditions appearing in Purchaser’s acceptance, acknowledgement, invoice, or other such
document will have no force or effect. By placing an Order and/or making a payment, Purchaser agrees to be bound by these Terms.
2. ORDER.
The Order, these Terms, and any Specifications (as defined herein) together comprise the entire agreement between the Parties (collectively, this “Agreement”), and this Agreement supersedes all prior or contemporaneous understandings, agreements negotiations, representations and warranties, and communications, both written and oral. “Specifications” shall mean those
specifications that may be set forth in a particular Order and expressly acknowledged and agreed to by the Company.
3. CHANGES; CANCELLATION; TERMINATION.
No change, modification, extension or cancellation of this Agreement shall be effective against the Company unless it is approved by an authorized representative of the Company. In the
event of termination of this Agreement, the Company shall not be liable to Purchaser for any amount, and Purchaser shall be liable to the Company, in addition to any other relief available under these Terms, at law or in equity, for any and all damage sustained by reason of the default that gave rise to the termination.
4. PRODUCTS; SERVICES; RISK OF LOSS.
The Company shall deliver all Products and Services stated on the Order to Purchaser at the address that appears on the estimate or invoice. Prior to delivery, the Customer will receive a call or notification with the delivery date and a five-hour time frame for arrival.
● Presence: The Customer must be present during installation, unless alternative
arrangements are made and communicated in advance.
● Placement Liability: The Company is not liable for dissatisfaction with playset
placement if the Customer is not present during installation.
All shipping and delivery dates are approximate. Purchaser shall bear all risk of loss, damage, theft and other risks from delivery through Purchaser’s receipt and acceptance of the Product. Except as otherwise expressly set forth in the Agreement, Purchaser shall bear all expenses for
delivery of the Products, including (without limitation) shipping, loading, unloading, storage, freight, duties, fees, tariffs, taxes, and insurance.
5. PRICES.
Purchaser shall pay in full the price set forth on the applicable Order(s). All quoted prices, extras (including applicable surcharges), and all freight or transportation rates, are subject to change, without notice. All sales are final and the Company does not offer refunds or returns.
6. PAYMENT.
The total cost of the Product is on the estimate or invoice signed. Upon signing the estimate or invoice, a non-refundable 50% payment is required.
Unless otherwise specifically stated on the Order, or agreed to in writing and signed by the Company, the terms of payment for each order shall be net cash (U.S. Dollars). Final payment is due and collected at the time of scheduling.
Payment Options:
● Zelle: Send to [email protected].
○ Please Note: The invoice number MUST be written in the memo of the Zelle
payment.
● Check: Payable to the Company (subject to a $20.00 charge for returned checks).
○ Please Note: The invoice number must be written in the memo.
● ACH: Reach out to the office for banking information and instructions, or use the
following link to pay via ACH: https://pay.banquest.com/swingitplaysets#amounts
● Credit Card: Use the following link:
https://pay.banquest.com/swingitplaysets#amounts
○ Please Note: There is a 3% fee for paying with a Credit Card.
No Disputes: Purchaser certifies they are an authorized user and will not dispute the payment with their credit card company so long as the transaction corresponds to the terms indicated.
The unpaid portion of any amounts due to the Company shall bear interest at the rate of 2.0% per month, or the maximum legal rate if less. Changes to an existing order that has been paid in full and requires a refund shall include a 3% processing fee if the refunded amount is $1,000 or more.
7. SITE PREPARATION AND FEES.
The purchaser shall ensure the delivery site is prepared and accessible prior to delivery.
● Flat Yard: Installation requires a relatively flat yard with adequate space for entry and
assembly. Adjustments may be necessary if these conditions are not met.
● Slope: If the ground is very steep, the playset may be on a slope. The crew will do their
best to make the playground solid.
● Accessibility: Purchaser shall designate the path to be taken by Company vehicles or
equipment. There must be an opening large enough to allow for the tower of the playset to enter the yard (height and width).
● Build-on-Site Surcharge: If there is not an opening large enough, the tower shall be built on site and there shall be a 10% surcharge above the total cost of the playset. If
the set came built and we need to dismantle it in order to build on-site, we will charge a 15% surcharge.
● Fence Removal: Alternately, we can remove and replace a piece of fencing when
possible at a cost of $250 per panel.
● Mulch: We will provide enough mulch, along with weed guard and border, to fully cover
the area around your playset. The amount of mulch shown on the invoice is
approximate.
● Relocation: Moving the playset to a different location, even within the same area, after
installation incurs an additional fee and must be scheduled separately (it cannot be done the same day due to the schedule).
● Damage Waiver: The Company is not responsible for any damage to landscaping or
property during installation. Purchaser waives any and all claims for such damage,
including damage to lawn, land, sidewalk, or driveway surfaces caused by Company
vehicles or equipment.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S
AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE APPLICABLE PRODUCT OR SERVICES. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN TORT, CONTRACT OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER THE COMPANY WAS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
9. WARRANTIES AND REPORTING.
The Company warrants that the Products are free from material defects and will repair or
replace defective Products or portions thereof under the following conditions:
a. Reporting Window: Any installation issues must be reported to the office within three (3) business days. If any defect is found within 30 days of this agreement, the Company will repair or correct the matter within a reasonable amount of time.
b. This warranty only applies to Products purchased by the Purchaser that are at the original
installation address. Any alterations, relocation, or improper installation of the Products will void the warranty;
c. The warranty applies for a period of six years after the date of purchase for vinyl sets
(including accessories) and for a period of five years after the date of purchase for wooden sets (including accessories);
d. The Company reserves the right to request photographs and/or evidence of defective
Products, and to recover the Products prior to authorizing any work under the terms of the
warranty.
e. If a defect is covered by the manufacturer’s warranty, the manufacturer will repair or replace the defective part, or reimburse Purchaser for such part, within a reasonable period of time.
This warranty does not cover normal wear and tear, failure to properly maintain the Products, damage resulting from the misuse or abuse of the Products, or damage caused by acts of
nature, including but not limited to lightning, storms, hurricanes, tornadoes, earthquakes, or other extreme weather conditions.
To the extent permitted by applicable law, the Company disclaims all other warranties, including the warranties of merchantability and fitness for a particular purpose. Purchaser’s sole and
exclusive remedy for defective Product shall be, at the Company’s option, replacement or repair of the defective Product, or refund of the purchase price of the defective Product.
10. TAXES.
Purchaser assumes exclusive liability for any and all taxes, fees, duties, withholdings or like charges, (the “Taxes”). Unless otherwise specified in the Order, the price set forth on an Order includes all applicable Taxes.
11. INDEMNIFICATION.
Purchaser agrees to indemnify, defend and hold harmless the Company, its affiliates and subsidiaries, and their respective officers, directors, employees and agents from and against any and all liability, claims, suits, actions, losses, costs or expenses, including reasonable attorneys’ fees, relating to or arising out of this Agreement, including but not limited to any
non-warranty claim or demand which Purchaser’s customers or any other person, whether or not in privity to Purchaser, may make against the Company based upon or arising from the purchase, sale, or use of Product, or from any patent or hidden defects in the quality of Product or the dangerous condition thereof, regardless of the legal theory asserted or if brought
pursuant to a class action statute.
12. COMPLIANCE WITH LAWS.
Purchaser shall comply with all federal, state and local laws, ordinances, and codes at all times, including identifying and procuring required permits, certificates, approvals and inspections.
13. PHOTO & VIDEO CONSENT.
By completing a purchase, you acknowledge and consent that the Company photographs and records video of swing sets and playhouses during delivery and installation. These images and recordings are used for purposes including, but not limited to:
● Internal training and quality assurance
● Customer service, recordkeeping, and installation documentation
● Marketing, promotional, and advertising efforts across digital, print, and social media
platforms.
No names, addresses, or specific location details are used or disclosed in any public-facing
materials unless agreed upon by the (“Purchaser.”)
14. FORCE MAJEURE.
The Company shall not be liable to the Purchaser for any delay or failure in performing its
obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of the Company (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God, government restrictions, floods, fire, hurricanes, earthquakes, explosion, epidemic, pandemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. In the event of any such delay or failure, the Company may, at its option, extend the delivery time or cancel the order, in whole or in part. In the event the Company is unable to supply the total requirements of its customers, the Company may allocate its available supply among customers in a manner determined by the Company to be fair and equitable.
15. GOVERNING LAW.
This Agreement shall be governed in all respect by the laws of the State of New Jersey,
without regard to its conflict of law principals, and all actions commenced pursuant hereto shall be brought exclusively in a court of competent jurisdiction in Howell Township, New Jersey (or the appropriate court in Monmouth County, NJ), or in federal court in the District of New Jersey.
16. FEES; COSTS.
Each party shall pay all costs, including reasonable legal fees, incurred by the other in any
successful enforcement of this Agreement or collection of any sums due such party by the other under this Agreement, whether or not official legal action is instituted.
17. CLAIMS.
Notwithstanding any provision to the contrary, Purchaser agrees to bring any claim or dispute against the Company within one (1) year after the occurrence of the event giving rise to such dispute or waive such claim.
18. USE OF PRODUCTS.
The Products are intended for recreational use and adult supervision is recommended. The Company shall not be held liable for any injuries, damages, or accidents that occur while using the swing set. Use of the swing set is at the user’s own risk. Purchaser will be
responsible for any and all damages resulting from the use of the Company’s Products, and hereby waives any and all claims or causes of action against the Company for the same.
19. SEVERABILITY; CONSTRUCTION.
If any section, paragraph, sentence, clause, phrase or any part of this Agreement is declared to be illegal or void, or if for any reason is declared to be invalid or of no effect, the remaining
sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no manner
affected thereby but shall remain in full force and effect. The headings contained in these Terms are for convenience of reference only and are not intended to have any substantive significance in interpreting this document.
20. MISCELLANEOUS.
The rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
General Terms and Conditions Regarding Website
The following Terms & Conditions are entered into by and between You and SwingIt
Commercial LLC and Backyard Recreation LLC, both New Jersey limited liability
companies, including all associated DBA (Doing Business As) names, including but not limited to SwingIt Playsets, ProScapes by SwingIt, and any future or currently unlisted DBAs (collectively referred to as the “Company”, “us”, “we”, or “our”) which owns and operates https://swingitplaysets.com/ (the “Site”).
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms & Conditions”), are a binding agreement and govern your access to and use of the Site, including any content, product, functionality and services offered or purchased on or through the Site.
Please read these Terms and Conditions carefully before you start using the Site.
By visiting and using the Site or by clicking to accept or agree to the Terms & Conditions when this option is made available to you, you indicate that you accept and agree to be bound and abide by these Terms & Conditions and any documents incorporated herein by reference. If you do not agree with these Terms & Conditions, you must cease usage of the Site, or any related services, immediately.
This Site is intended for individuals who are 18 years of age or older. Individuals who are under thirteen (13) are expressly prohibited from posting any personally identifiable information about themselves.
CONTENT
All information on this Site, including any and all copyrights, trademarks, design rights and other intellectual property rights related to the content and work product on this Site, are owned by the Company with the exception of the content you submit to us set forth in the section below.
The copying, redistribution, use, or publication by you of any such Content is strictly prohibited. Your use of our Site does not grant you any ownership rights to the Content of our Site.
The reproducing in any format (including on another website) of any part of our Site (including content, images and designs) without our prior written consent is strictly prohibited.
Requests for prior written consent should be addressed to the following email: [email protected]
You may provide links to our Site as long as:
a. you clearly give credit to us as the author,
b. include a hyperlink to our Site,
c. you do not remove or obscure any portion of our Site by framing or otherwise,
d. your website does not engage in illegal or pornographic activities, and
e. provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
You must not provide links in such a way as to suggest any form of association, approval or endorsement on our part without our prior written consent.
You must not provide links from any website that is not owned by you.
You must cease providing links to our Site immediately upon our request.
SMS PROGRAM
You can cancel the SMS service at any time. Just text “STOP”. After you send the SMS
message “STOP” to us, we will send you an SMS message to confirm that you have been
unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at [email protected].
● Carrier Liability: Carriers are not liable for delayed or undelivered messages.
● Rates: As always, message and data rates may apply for any messages sent to you
from us and to us from you. You will receive messages based on your frequency of interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
RELIANCE ON CONTENT
The Content of this Site is meant for informational purposes only and is not intended to amount to professional or specific advice on which reliance should be placed.
Please refer to our Disclaimers for further information.
Every effort has been made to only provide complete and accurate information. However, we disclaim all responsibility and liability arising from any inaccuracies and any reliance placed on the information presented on this Site and shall not be liable for any damages or harm.
CONTENT YOU SUBMIT TO US & USER CONTRIBUTIONS
You may be provided with the ability to upload, display, post, transmit, send, email or otherwise submit to us on the Site or on any of our social media accounts, content in the form of text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (the “content”, or “content you submit to us”).
You expressly acknowledge and agree that once you submit the content to us, it will be accessible by others, and that there is no confidentiality or privacy with regard to such content, including, without limitation, any personally identifying information that you may make available.
You, and not us, are entirely, and solely, responsible for all the content you submit to us. We do not claim ownership rights in the content you submit to us. However, you hereby grant to us a non-exclusive, fully paid and royalty-free, worldwide, perpetual license to modify, compile,
combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) such content and all intellectual property and moral rights therein, including, without limitation, distributing part or all of the Site in any media formats through any social media channels or technology now known or hereafter devised.
You represent and warrant that:
● the content you submit to us is your original creation or you own the content or otherwise
have the right to grant the license set forth above
● the content you submit to us does not violate the privacy rights, publicity rights,
copyrights, contract rights, intellectual property rights or any other rights of any person,
● the content you submit to us does not result in a breach of contract between you and a
third party,
● the content you submit to us does not contain any libelous, defamatory, or obscene
material or content that violates our terms of use or those of our social media accounts.
You agree to be held solely liable for any damages resulting from any infringement of
copyrights, trademark or other proprietary rights of the content you submit to us and for all
royalties, fees, and any other monies owing any person by reason of the content you submit to us.
PASSWORD AND SECURITY
You will receive a password and account designation upon completing the website’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
NO WARRANTIES
We make no representations or warranties of any kind, express or implied, as to the
performance or operation of the Site and the information, contents, materials, documents,
products, or services included on or through the Site. To the fullest extent permissible under the law, the Company disclaims all warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event will our company or its
directors, employees, or agents be liable to you or any third person for any direct, indirect or consequential loss or damage incurred in connection with the use, inability to use, or results of the use of our Site, any websites linked to it and any information, contents, materials,
documents, products, or services included, offered, or purchased on or through the Site.
You expressly acknowledge and agree that our company its directors, employees, or agents shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
PROHIBITED USE
As a condition of your use of the Site, you warrant that you will not use the Site for any purpose that is unlawful or prohibited by these Terms & Conditions.
You are prohibited from violating or attempting to violate any security features of the Site;
damaging, disabling, or impairing or attempting to damage, disable or impair the Site; gaining or attempting to gain unauthorized access to any portion or feature of the Site; interfering with or causing disruption in the operation of the Site; modifying, reverse-engineering, decompiling,
disassembling, participating in the transfer or sale, creating derivative works or attempting to modify, reverse-engineer, decompile, disassemble, participate in the transfer or sale, create
derivative works, or in any way exploit, in whole or in part, any of the content available on the Site.
You agree to use the Site for lawful purposes only and any violation of any provision contained in these Terms may subject you to civil and/or criminal liability.
COMMENTS
When you leave a comment on our Site, your comment will be publicly available to other visitors of this Site.
For spam detection purposes, we collect the data shown in the comments form, and also your IP address and browser user agent string in accordance to our Privacy Policy.
An anonymized string created from your email address (also called a hash) may be provided to the Gravatar service to see if you are using it. The Gravatar service privacy policy is available here: https://automattic.com/privacy/. After approval of your comment, your profile picture is visible to the public in the context of your comment.
If you leave a comment on our Site, you may opt-in to saving your name, email address and website in cookies. These are for your convenience so that you do not have to fill in your details again when you leave another comment. These cookies will last for one year.
Your comment may be checked through an automated spam detection service.
You can request to receive an exported file of the personal data we hold about you, including any data you have provided to us. You can also request that we erase any personal data we hold about you. This does not include any data we are obliged to keep for administrative, legal, or security purposes.
We reserve the right to remove any comment that we determine to be unlawful, inappropriate, offensive or otherwise objectionable or in violation of intellectual property laws or these Terms & Conditions.
PRIVACY POLICY
While using the Site, you may provide certain personally identifiable information, such as your name, email address or IP address.
We process information about you in accordance with our Privacy Policy.
By using our Site, you consent to such processing and you warrant that all data provided by you is accurate.
LINKS TO THIRD PARTY SITES AND SERVICES
This Site may from time to time contain links to other websites (“Linked websites”). Linking to such Linked websites will let you leave the Website. Unless otherwise indicated, the Company is not affiliated with any of the Linked websites. The Linked websites are not under the control of the Company and the Company is not responsible for the contents of any linked website,
including, without limitation, any link contained in a linked website, or any changes or updates to a linked website. The Company does not endorse or make any representations about any linked website, any information, software, or other products or materials found in a linked website, or any results that may be obtained from using these links. The Company is providing these links as a convenience only, and the inclusion of any link does not imply endorsement by the
Company. If you decide to access any of the third-party websites linked from this Website, you do so entirely at your own risk.
LINKING TO THE COMPANY
Linking to the Company from another website (“Linking website”) is only allowed under the
following conditions. A Linking website may link to, but not replicate, the Company’s content. A Linking website shall not create a frame, browser, or border environment for the Company’s content and a Linking website shall not imply that the Company is endorsing it or its products. The Linking website shall not misrepresent the Linking website’s relationship with the Company, shall not provide false information about the Company’s products or services, and shall not
unlawfully use the copyrights or trademarks owned by the Company or others. Linking websites shall abide by any and all applicable laws.
EMBEDDED CONTENT FROM OTHER SITES
Content on this Site may include embedded content (e.g. videos, images, articles, etc.).
Embedded content from other sites behaves in the exact same way as if the visitor has visited the other website.
These sites may collect data about you, use cookies, embed additional third-party tracking, and monitor your interaction with that embedded content, including tracing your interaction with the embedded content if you have an account and are logged in to that site.
INTELLECTUAL PROPERTY & COPYRIGHT INFRINGEMENT POLICY
The contents, materials, documents, courses, products, or services included, offered, or
purchased on or through the Site are protected by international copyright law and may not be copied, reproduced, given away, or used to create derivative works without our expressed
written permission.
The Company, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital
Millennium Copyright Act (the “Act”), reserves the right, but not the obligation, to terminate your license to use this Website if it determines at its sole and absolute discretion that you are
involved in infringing activity, including alleged acts of first-time or repeat infringement,
regardless of whether the material or activity is ultimately determined to be infringing.
In addition, pursuant to 17 U.S.C. Section 512(c), the Company has implemented procedures for receiving written notification of claimed infringements and for processing such claims in
accordance with the Act. All claims of infringement must be submitted to the Company in a
written complaint that complies with the requirements below and is delivered to our designated agent to receive notification of claimed infringement.
Any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark, or other proprietary rights must include the following information:
● A physical or electronic signature of a person authorized to act on behalf of (1) the owner
of an exclusive right that is allegedly infringed or (2) the person defamed.
● Identification of the copyrighted work claimed to have been infringed, or if multiple
copyrighted works at a single online website are covered by a single notification, a
representative list of such works at that website. Similarly, for materials that are
defamatory or infringe the patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.
● Identification of the material that is claimed to be infringing, to be the subject of infringing
activity or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the
material.
● Information reasonably sufficient to permit the Company to contact you, such as your
address, telephone number, and/or electronic mail address.
● A statement that you have a good faith belief that use of the material in the manner
complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law.
● A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed or on behalf of the person defamed.
TRADEMARKS
“SwingIt” along with all logos, other tradenames, trademarks, services marks, whether
registered or not, set forth on this Website are the sole property of the Company. The
Company’s trademarks may not be used in connection with any product or service that is not owned by the Company in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Company. Any trademarks not owned by the Company that appear on this Website are the property of their respective owners and may not be used in connection with any product or service that is not owned by the trademark owners in any manner that is likely to cause confusion among customers, or in any manner that
disparages or discredits the trademark owners. All of the above trademarks may not be copied, downloaded, or otherwise exploited without the permission of the Company or the owner of the trademark, service mark, or trade name, except as explicitly permitted by the trademark owner.
CONFIDENTIALITY
You acknowledge and agree that confidential information may be exchanged between parties in connection with the use of our Site and information, contents, materials, documents, products, or services included, offered, or purchased on or through the Site.
You must maintain the secrecy of confidential information and treat all confidential information as private and confidential. You shall use Confidential Information solely in the performance of the obligations under these Terms & Conditions. You shall not disclose the confidential
Information without prior written consent except where required by law or regulation. You shall indemnify us against all losses, costs, expenses and other liabilities which may be suffered or incurred in connection to or arising out of any breach of confidentiality.
GOVERNING LAW
These Terms of Use and any dispute or claim arising from or in connection with them shall be governed in accordance with the laws of the State of New Jersey and the United States Of America.
MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER
FOR WEBSITE TERMS & CONDITIONS
THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS
INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. PLEASE REVIEW THEM CAREFULLY.
In case of a dispute relating to or arising out of your use of our Site, the Parties shall first
attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be
conducted in Howell Township, New Jersey. The arbitration shall be conducted by a single
arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by
applicable and governing Federal law as well as the law of New Jersey. Each Party shall pay its own costs and fees. Claims necessitating arbitration under this section include, but are not
limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes, or regulations. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims. The Parties further waive any rights to pursue or participate in a class or collective action.
INDEMNIFICATION
You agree to indemnify, defend, and hold us and our partners, consultants, agents, officers,
directors, employees, subcontractors, successors, service providers, and affiliates free from and against any and all legal claims, demands, liability, loss, claim, and expense, including
reasonable attorney fees, court costs and other legal expenses, which may arise from or relate to your violation of these Terms & Conditions, any act or omission in connection with your use of our Site, or your infringement, of any intellectual property or other right of any person or entity.
AMENDMENTS
We reserve the right to revise these Terms & Conditions at any time by amending this page.
All updates will be posted on this page and you are expected to check this page from time to time to take notice of any changes.
If you do not agree with the changes to these Terms & Conditions, you can choose to
discontinue the use of our Site.
ENTIRE AGREEMENT; MODIFICATION
These Terms & Conditions constitute the entire understanding between the parties with respect to the subject matter hereof and specifically incorporate, supersede and replace all prior or
contemporaneous oral and written agreements relating to the subject matter hereof.
No portion or provision of these Terms & Conditions may be changed, modified, amended, waived, supplemented, discharged, canceled or terminated orally or by any course of dealing, or in any manner other than upon written notice.
COUNTERPARTS
These Terms & Conditions may be executed in any number of counterparts in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Terms & Conditions.
ASSIGNMENT
Neither these Terms & Conditions nor any of the rights, interests or obligations granted
hereunder shall be assigned, sold, leased or otherwise transferred in whole or in part, by
operation of law or otherwise by any of the parties without the prior written consent of the other parties. Subject to the foregoing, these Terms & Conditions will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
SEVERABILITY
Any provisions of these Terms & Conditions which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In such conditions, the remainder of these Terms & Conditions shall
continue in full force and shall be enforced to the maximum extent possible.
NO WAIVER
The failure to exercise any right, power or remedy provided under these Terms & Conditions or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
HEADINGS AND CAPTIONS
The headings and captions in these Terms & Conditions are included for convenience of
reference only and in no other way define, limit or delineate any of the provisions hereof or
otherwise affect their construction or effect.
FORCE MAJEURE
Neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, but not limited to, acts of God, acts of war or terrorism, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
TERMINATION
We reserve the right to terminate your rights under these Terms & Conditions without notice if you fail to comply with any of these Terms & Conditions.
SwingIt Commercial LLC / Backyard Recreation LLC
4501 US 9
Howell Township, NJ 07731
