The duly completed and signed Proposal (the “Order”) together with the Terms and Conditions set forth herein shall constitute the entire agreement (the “Agreement”) between (the “Customer”) and INDOOR GOLF DESIGN, an Arizona L.L.C. (the “Company”) relating to the sale and use of the products and services that are being sold by Company to Customer (the “Products”).
Customer’s acceptance of the Proposal and or Products, and or payment for the Products, shall constitute acceptance of these Terms and Conditions.
- Price and Payment
- Dollars; Taxes; Fees. Unless otherwise stated on the Order, all sales (plus sales tax if applicable) C.I.F. US Dollars. All federal, state, local and sales, use, property, and similar taxes levied in connection with the sale and delivery of the Products shall be paid by Customer. Sales tax shall be applied to all orders except where sales tax does not apply to such order by law. Sales tax is always the responsibility of the Customer and or GC. Any and or all Government Fees are the responsibility of the Customer.
b-1. Initial Payment. An Initial Payment is due upon acceptance of Proposal. No work will commence until Payment is received.
b-2. Additional Payment. A payment of 50% of total contract amount is due upon acceptance of The Design and prior to ordering and manufacturing of the products. No work will commence for this phase until Payment is received.
b-3. Balance Due. The remaining balance including any and all signed Change Orders to date is due seven (7) weeks prior to shipping and installation. The delivery will be scheduled once all funds are received. The installation will be scheduled once delivery is scheduled and The Pre-Installation Checklist has been signed and sent back. Two weeks prior to install, prior to booking travel, Proof of Project Readiness needs to be confirmed via pictures and or video of the site, all funds received and confirmation that all shipped products have arrived on site. The shipment verification requirement is waived if IGD is bringing the products to the site with the installers.
b-4. Additional Charges. Should there be any additional Travel Costs or Change Orders at the time of Install they will be billed and due within 7 days after install.
b-5. Late Payment; Fees. If any payment is late IGD will charge a late fee equal to the maximum allowed for the state the install is in. The late fee will be charged on any and all past due payments and shall be computed from the invoice date. All work will cease until such time as the payment is made and the account is brought current to IGD billings. If there are any outstanding balances 7 days after Install IGD and its suppliers reserve the right to immediately turn off the equipment and or software until the balance is paid in full.
b-6. No Refunds, Returns, or Cancellations. The Terms and Conditions of this Agreement are for a Design, Supply and Install project. Due to the custom design and installation of our projects, no returns, refunds or cancellations will be issued once contract is executed. If Customer wishes to cancel this contract for any and all reasons, any funds paid to date will be forfeited.
b-7. Additional Parts and Services. Payment for sales of additional parts or services other than in the original install rendered by the Company will be due in full prior to manufacture and shipment of the products.
- Return Procedures. No returns will be accepted without prior written authorization from the Company. Claims for shortages or discrepant parts must be made no later than seven (7) calendar days after installation.
- No Offset. Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the Customer may have or allege to have against the Company.
- Delivery and Risk
- Delivery. The time and method of delivery will be at the Company's discretion unless other arrangements are made in advance by Customer and agreed to in writing by Company. Delivery is conditional upon receipt by Company of all funds specified in Section 1.b-1,2,3. The date for Installation will be set once all Funds as set forth in Sections 1.b-1,2,3 and The Pre-Installation Check List duly completed and signed by Customer and or Customer's GC or Builder are received. Upon receipt of said items, Company will schedule an installation date.
- Project Readiness. Picture and or video Proof of Project Readiness will need to be received by the company prior to booking travel for installers. Customer shall make all necessary arrangements to receive the goods at the time specified by the Company and shall in all other respects be prepared in accordance with the Pre-Installation Checklist.
- Assistance. Customers and or GCs in states other than Arizona must provide one (1) assistant for the install technician to utilize as needed during the installation process and two (2) six (6) foot fiberglass ladders two hundred twenty-five (225) pound rated in excellent working order. Said assistants must be covered by the Customer’s insurance policy in the event of an accident. The Customers insurance shall also cover Company’s installers at all times they are on the
- Customer Property. The time of delivery and installation shall not be of the essence. The Company shall have no liability to the Customer for any delay in delivery or installation caused by Customer's failure to comply with the Pre- Installation Checklist requirements. Simulator parts and products may arrive up to two (2) weeks prior to installation. Customer must provide a secure area for storage of said parts & products.
- Inspection and Acceptance
- Timing and Notice. Customer must examine the goods immediately upon installation and within seven (7) calendar days of completion of installation must notify Company in writing of any shortages or discrepant parts.
- Training and Support
- Initial Training. A one (1) hour Training will be provided by the Company immediately following installation. Additional training for the Products will be at the Customer’s expense. The Company shall provide operation manuals and reasonable technical support to the Customer by telephone or online after the installation. During the first 12 months of simulator ownership, the Company shall maintain a free remote service (via telephone, modem, fax, or internet connection) through which Customer may contact the Company for detailed service advice provided Customer is not in default in making any payment due to the Company as set forth in Section 1.
- Telephone Support. Starting the 13th month after the original installation, Company may provide unlimited telephone support to Customer for an additional fee of two hundred and ninety-nine dollars ($299) per calendar year for a single simulator or four hundred and ninety-nine dollars ($449) per site for multiple simulators up to a total of six (6). “Site” is defined as a single business operation at a single physical premise. Customer agrees to pay Company these sums for any calendar year in which telephone support is provided. Telephone support is available by calling Company's USA office between the hours of 9 a.m. and 5 p.m. MST, Monday-Friday. Telephone support is non-transferrable. Additional back-up services from Company shall be available at additional charge upon Customer’s request.
- Warranties, Limitations, Liabilities and Remedies of the Customer
- Warranty. Subject to the Customer's material compliance with the maintenance plans as set out in the manual supplied with the Products (''the Maintenance Plan'') and provided Customer is not in default of any payments owed to Company, Company warrants FOR A PERIOD OF ONE (1) YEAR FROM DATE OF ORIGINAL INSTALLATION, that the Products will be free from defects in workmanship and materials and in conformity with the Company’s specifications, or any specifications provided by Customer and expressly agreed to in writing by the Company. If during the one-year limited warranty period any product is found by the Company to be defective, the Company will, at its option, repair the Product or replace the defective Product with a new Product or exchange the Product with an equivalent Product. This limited warranty does not extend to interruptions in the performance or operation of the software, or hardware due to acts of God (power failures, storms, etc.) or computer or software viruses. THIS LIMITED WARRANTY IS AVAILABLE ONLY TO THE ORIGINAL PURCHASER OF THE PRODUCTS, AND IS EXPRESSLY MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS.
- Limitation of Warranty. The warranty in Section 5.a does not apply to Products that have been damaged by accident, shipment, handling or abuse, alterations or repairs not performed by the Company, or any defect arising from willful damage, negligence of Customer or third persons, failure to follow the Company's reasonable instructions for operation and maintenance, including but not limited to the Maintenance Plan. Consumable items such as screens, tees, hitting mats, projector bulbs, cosmetic parts, and other items that wear out due to normal usage are also excluded from the warranty. Items not manufactured by the Company, such as projectors, touch-screens, and computers, are covered by their respective manufacturers or suppliers. The Company will not warrant interruptions in the performance or operation of the software, or hardware due to acts of God (power failures, storms, etc.) or computer or software viruses. The Customer acknowledges that it is not possible to test computer software and hardware in all possible circumstances and that it is therefore not possible to produce software that is free from error in all respects.
- Prerequisites to Coverage. The Company shall have no liability under the warranty (or any other warranty condition or guarantee) if the Total Price to include any Change Orders and or additional travel fees has not been paid in full.
- Limitation of Liability. The Company’s total liability in connection with this Agreement and the Products to all persons and from all causes of action in the aggregate, whether in contract, tort or otherwise, shall not exceed the amounts paid by the Customer for the Products directly related to the damage.
- Waiver and Release of Liability and Covenant Not to Sue
- Waiver and Release. For valuable consideration, including but not limited to the opportunity to purchase and use the Products and participate in a simulated golfing experience, Customer, and Customer’s successors, assigns, representatives, employees, agents, Customers, and anyone else claiming by or through Customer, hereby expressly releases, discharges, holds harmless from, and waives any and all claims (including but not limited to claims for property damage, personal injury, or death) whether foreseeable or not, arising from negligence, carelessness, strict liability, which Customer may at any time in the future possess against Company, or any employee, agent, representative, shareholder, officer, director, affiliate, contractor, subcontractor, successor or assignee of Company (all of whom are hereinafter referred to as the “RELEASED PARTIES”). The foregoing release and waiver is meant to and shall apply to any and all claims, causes of action, demands, or sums of money that Customer, or anyone claiming on behalf of or through Customer, may have or be entitled to from any of the RELEASED PARTIES as a consequence of any type of damage (whether personal or property), loss, death or injury that Customer, or anyone claiming on behalf of or through Customer has or may have in the future as a consequence of the purchase and use of the Products, and regardless of whether the claim, cause of action or demand is grounded in negligence, tort, contract or any other legal bases for recovery other than intentional conduct by Company specifically intended to injure. Customer understands that the Releases herein APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF THE USE OF THE COMPANY’S PRODUCTS, AS WELL AS THOSE KNOWN AND ANTICIPATED. Customer acknowledges that he, she or it understands that the consequence of this waiver is that even if Customer should suffer injury, death or property damage while using the Products, Customer will not be able to make any claim for those damages against the Company.
- Title
- Ownership and Payment. In spite of delivery having been made, title in the goods shall not pass from the Company until the Customer has paid the full Price stated on the Purchase Order, including all taxes if applicable and any other sums whatever due from the Customer to the Company.
- Repossession. Until such time as title in the goods passes from the Company, the Customer shall, upon Company’s request, deliver up such of the goods as have not ceased to be in existence or been resold to the Company. If the Customer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Customer where the goods are situated and repossess the goods.
- Conditional License
- Scope of License. Customer is granted a conditional, non-transferable license to use the proprietary software originally installed with the Products for as long as Customer owns the Products. The license is conditioned upon full and timely payment by Customer of all sums due to Company and may be revoked without notice if Customer is in default of any payment or any provision of this Agreement. No part of Company's proprietary software may be used separately from the Products. Unless otherwise stated on the Purchase Order, the Price does not include any updates or enhancements of Company's proprietary software.
- Miscellaneous
- Severability. If any provision of this Agreement shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Agreement shall remain in full force and effect.
- Choice of Law; Jurisdiction; Venue. This Agreement shall be deemed to have been executed in Chandler, Arizona at the address of Company set forth below. The laws of the State of Arizona shall govern the validity, performance, interpretation and enforcement of all obligations contained herein. Should either party institute a legal suit or action for enforcement of any obligation contained in this Agreement, it is agreed that the exclusive jurisdiction and venue for such suit or action shall be the Superior Court of the State of Arizona in and for the County of Maricopa.
- Merger. This Agreement represents the entire understanding between the parties and supersedes all prior agreements and understandings, written or oral. This Agreement may not be modified except in writing and signed by both Customer and a duly authorized representative of the Company. If it is necessary to enforce performance under this Agreement by referring to an attorney, the Customer shall be responsible for payment of all costs incurred, including reasonable attorney fees, whether or not suit is filed.
- Support. Answers to questions regarding the Products or the terms and conditions of this Agreement may be obtained from the Company by calling 1- 602-888-4018 between the hours of 9 a.m. and 5 p.m. Arizona Time, or by mail addressed to: 4980 S. Alma School Rd., Suite A2 #244, Chandler, AZ 85248
*REVISED 7_1_2022