Terms & Conditions
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I. ACCEPTANCE OF ORDER:
Big Top Inflatables (hereinafter, formally known as BTI), will accept your order for the Product(s) or Device(s) as documented on your Invoice. By accepting the order, Purchaser(s) (i.e., person, company, or entity purchasing the product or device) acknowledges and certifies that they have had sufficient opportunity to read our Terms and Conditions, understand its content, and the order was executed freely, intelligently, and without duress of any kind. Purchaser(s) further agrees to the terms set forth in this Agreement and as documented on the Invoice and irrevocably agrees to operate the Product(s) or Devices(s) purchased in compliance with the Manufacturer(s) Product Manual(s) and according to and within all guidelines set by the Local, State, and Federal Authorities.
A) BTI will not accept different, amended, or additional terms without written consent of an authorized BTI Representative.
B) BTI is not responsible for clerical or typographical errors or omissions made on any documents, quotations, website, literature, advertisements, and / or other relevant material.
C) Preliminary negotiations shall not constitute an Agreement for the sale of goods.
D) BTI does not warehouse, design, manufacture, or package the products or devices sold. The products purchased are drop-shipped directly from the Respective Manufacture(s) to the Purchaser(s).
E) Upon receipt of Purchased Product(s) and prior to usage, should Purchaser(s) not receive the Manufacture(s) Product Manual(s), Purchaser(s) is prohibited from using, renting, or leasing the products purchased until the Product Manual(s) is received by the Respective Manufacture(s). Please contact BTI or the Respective Manufacture(s) for assistance in obtaining the Product Manual(s).
BTI requires full payment at the time order - 100% (Pre-Paid US Funds).
A) Payments must be received by BTI no later than 5 calendar days from invoice date; otherwise the order will not be processed and automatically cancelled without further notice.
B) The ship date on the Invoice will reflect the Estimated Ship Date the Product(s) or Device(s) will be released from the Respective Manufacture(s).
C) Payments on the Invoice must be received prior to releasing Purchaser(s) Product(s) and Device(s). BTI is not responsible for monitoring final payments. It is the Purchaser(s) responsibility to keep track of the date their product is due to ship and making arrangements with BTI for the final payment prior to the estimated scheduled ship date. Should Purchaser(s) fail to make final payment, as stated on the Invoice and in this Agreement, then all deposits and payments are voluntarily forfeited. BTI will retain all said deposits and payments and will resell the Product(s) and Device(s) ordered on the Invoice and under this Agreement.
D) Full, Partial and Final Payments must be made in the form of a U.S. Certified Funds, Money Order, Bank Wire Transfer, or any of the following Credit Cards: Visa, MasterCard, Discover, and American Express. BTI also accepts PayPal Payments and PayPal Payments distributed via PayPal Credit or any other BTI Preapproved Finance Company or Banking Institution. Please Note: Purchaser(s) Product(s) or Device(s) will not be shipped until payment has cleared our financial institutions.
E) All payments are payable to Big Top Inflatables.
Freight is always "Collect" unless otherwise indicated on the Invoice.
A) BTI will not be responsible for freight charges over what may have been quoted prior to shipment.
B) The ship date listed on the Invoice refers to the Estimated Ship Date the Product(s) or Device(s) will be ready for shipment.
C) Delay of payment on an order will result in a potential delay in the on-time completion of Purchaser(s) order and shipment.
D) BTI may use the services of Fed Ex, UPS, USPS and any other unrelated common carriers to handle the delivery of Purchaser(s) Product(s) or Device(s).
E) Whenever possible, BTI will offer the discounts afforded to BTI to the Purchaser(s) for their shipments.
F) Unless a carrier is specified by the Purchaser(s), BTI will use, at its discretion, its best method and carrier to get the Product(s) or Device(s) to the Purchaser(s).
G) International Orders: Purchaser(s) will be required to authorize BTI's International Shipping Policy prior to shipment.
H) BTI is not responsible for delays in shipping due to weather, union strikes, fires, floods, freight embargos, terrorism, and acts of governments or nature.
I) Shipments to residences / businesses or the use of a lift gate style truck to unload Product(s) or Device(s) may be subject to additional shipping charges.
J) DAMGES CAUSED BY THE CARRIERS ARE NOT THE RESPONSIBILITY OF BTI. Freight and Ground Carriers policies, for the handling of damaged goods during shipment, must be followed to assure the claims are handled properly. The Purchaser(s) must inspect the package(s) for damage(s) prior to signing the Bill of Lading. Purchaser(s) should refuse and relinquish any damaged package(s) back to the freight carrier, or should Document the Damage on the Delivery Receipt (i.e., Bill of Lading) for further claim investigation. Moreover, the Purchaser(s) shall inspect the Product(s) or Device(s) promptly after receipt and shall notify the BTI and their Respective Manufacturer(s), in writing (i.e., US Certified Mail), of any claims, including claims of breach of warranty, within five (5) days after purchaser discovers or should have discovered the facts upon which the claim is based. Failure of Purchaser(s) to give written notice of a claim within the inspection time period shall be deemed to be a waiver of a claim for defective Product(s) or Device(s), a waiver of the right to reject the goods, and conclusive proof that the Product(s) or Device(s) were received by Purchaser(s) without defect(s).
K) IT IS IMPORTANT TO CHECK ALL ORDERS IMMEDIATELY WHEN RECEIVED! All returned shipments must be Pre-approved by BTI and their respective Manufacturer(s) and a Return Authorization (RA) number issued; if not, Purchaser(s) will be responsible for the freight charges.
IV. MANUFACTURE(S) WARRANTY & PRODUCT MANUALS:
All products are sold with the Manufacture(s) limited warranty, if any. The warranty period and service varies by the Respective Manufacturer and the Product(s) or Device(s). Clearance Items, Slide Liners, Pool Liners, Stairs / Handles attached to Liners, Netting, Zippers, Velcro, Module Art Panels, Misting Kits, and Hand Trucks are all Sold As-Is No Warranty, No Replacement, No Return, and No Refund. These item(s) are considered Wear Items or Items that the Respective Manufacture(s) have elected not to warranty, repair, or replace.
A) BTI DOES NOT MANUFACTURE NOR PROVIDES A WARRANTY ON ANY PRODUCT(S) OR DEVICE(S) SOLD TO PURCHASER(S).
B) BTI is not responsible for any lost revenue as a result of a warranty claim by Purchaser(s).
C) BTI shall not be responsible for any Freight to and from the Respective Manufacturer(s) business location(s) with respect to warranty issues or returns.
D) Any Warranty Claims of defect must be directed to the Respective Manufacturer(s) and not BTI.
E) The Respective Manufacture(s) warranty cards, product manuals, or name will be provided with or documented on the product(s) purchased. For more assistance, please contact BTI regarding Manufacture(s) contact details for warranty claims or assistance with the warranty process.
BTI PROVIDES NO SEPARATE WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BTI EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING ANY PRODUCT(S) OR DEVICE(S) SOLD TO YOU, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
BTI is a Drop-ship, Distribution Company that sells Product(s) and Device(s) from numerous Manufacture(s) who all have their own policies regarding returns. Due to the various policies of our Respective Manufacture(s), BTI does not accept returns on any shipped items. However, BTI will authorize a full return on any cancelled orders prior to the Product(s) or Device(s) being shipped.
A) In the rare case the Purchaser(s) Product(s) or Device(s) unfortunately arrive damaged or defective, replacements are usually offered by the Respective Manufacture(s) and at no charge to the Purchaser(s). Purchaser(s) must comply with Section III (SHIPPING) of this Agreement. The Product(s) or Device(s) must be in a "New and Unused-Like Condition" when returned. Any necessary repairs required to bring the returned Product(s) or Device(s) to a "New and Unused-Like Condition" will be paid by Purchaser(s). BTI, and the Respective Manufacturer(s), will not accept returns for any Used, Pre-Ordered, or Custom Manufactured Product(s) or Device(s). This includes, Purchaser(s) name tags or graphics added to item(s), custom designs, and custom ordered colors not standard on the Product(s) or Device(s) for Purchaser(s).
B) Purchaser(s) will not receive a Refund or Credit until all Product(s) or Device(s) have been returned, authorized and accepted by the Respective Manufacture(s), and third-party billing (i.e., shipping charges, administrative, handling, restocking, and storage fees, etc.), which have also been cleared BTI and their accounting department. Refunds may take upwards of 60 or more business days due to third-party billing to account for an accurate refund or credit.
C) In the case that Purchaser(s) Product(s) or Device(s) is not able to be delivered and requires to be held in storage, for the following reasons but is not limited to,: – Wrong address/Contact information provided to BTI – Away from residence/business/terminal and not able to accept delivery, Purchaser(s) will have 3 business days to respond to the Respective Carrier(s) or contact BTI to reschedule delivery (some fees may apply). After this timeframe has elapsed and no delivery has been scheduled, the Product(s) or Device(s) will be returned to the Respective Manufacturer(s) and NO refund will be issued under our Shipping and Returns Policies as outlined on this Agreement. *Restocking fees vary from Respective Manufacture(s). Please contact BTI prior to purchasing and inquire about these required fees.
VI. JURISDICTION AND VENUE:
In the event of litigation between the parties concerning the Product(s) or Device(s) shipped to Purchaser(s), such action shall be governed by the laws of Texas, U.S.A. Mandatory and exclusive venue shall be in the state or federal courts located in Bexar County Texas.
VII. SALES AND USE TAXES AND DUTY:
BTI prices do not include sales and use tax. All charges are subject to the local, state, and federal taxes, if any. Purchaser(s), located within the State of Texas, to include Will Call Orders and orders with a Texas Ship-To Destination, Purchaser(s) are subject to Texas State Sales and Use Tax unless they provide a valid Texas Sales and Use Resale or Exemption Certificate. Purchaser(s) shall pay such taxes imposed on the invoice, and all penalties and interest, if any, accrued therewith. The amount of any present or future sales and use tax applicable to the sale or use of the Product(s) or Device(s) sold hereunder shall be paid by the Purchaser(s). Purchaser(s) agrees to indemnify and hold BTI harmless from any and all taxes (and any interest and penalties arising thereon) which any governmental or taxing authority claims or determines is due and has not been paid on the Invoice, as a direct or indirect result of the Purchaser(s) act or omission, including the Purchaser(s) failure to qualify for any sales or use tax exemption. All duty and or taxes owed for international orders will be paid by Purchaser(s) to custom authorities for their respective country.
BTI DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO PURCHASER(S) OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY PRODUCT WHICH HAS BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT, OR MISAPPLIED, OR MODIFIED OR REPAIRED BY UNAUTHORIZED PERSONS, OR IMPROPERLY INSTALLED OR MAINTAINED. PURCHASER(S) AGREES TO COMPLY AND OPERATE THEIR PRODUCT(S) OR DEVICE(S) ACCORDING AND WITHIN THE GUIDELINES SET BY THE RESPECTIVE MANUFACTURE(S) AND LAWS ACCORDING AND WITHIN THE GUIDELINES SET BY LOCAL, STATE, AND FEDERAL AUTHORITIES.
BTI IS NOT THE MANUFACTURER OF ANY PRODUCT(S) OR DEVICE(S) AND TO THE GREATEST EXTENT ALLOWED BY LAW HEREBY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO PURCHASER(S) TO PROVIDE PURCHASER(S) WITH ANY TRAINING, WARNINGS, PRODUCT OPERATION MANUAL OR OTHER INSTRUCTIONS OR WARNINGS CONCERNING THE SAFE OPERATION OF THE PRODUCTS. PURCHASER IS SOLELY RESPONSIBLE FOR OBTAINING ALL SUCH TRAINING AND INFORMATION TO THE EXTENT NECESSARY.
All dimensions and weights stated on the BTI Website, located at www.BigTopInflatables.com and pertaining to Product(s) or Device(s) sold by BTI are approximate. BTI, or the Respective Manufacturer(s), at their sole discretion, may substitute standard colors for similar colors and if deemed necessary to complete an order on time, to include, not being responsible for color matching of Product(s) or Device(s) based on photographs or computer generated illustrations.
All logos, product names, trademarks, artwork, literature, and photographs are proprietary of BTI and their Respective Manufacture(s). Any unauthorized reproduction, of any of these items, constitutes a copyright infringement and is punishable by law.
Prices are subject to adjustment if Purchaser(s) request changes in specifications, quantities, or delivery requirements. All paragraphs of this Agreement shall apply to Product(s) or Device(s) to which such changes apply, and no modifications of the terms and conditions hereof shall be binding on BTI or their Respective Manufacture(s) unless contained in writing, signed by an authorized BTI Representative, and expressly stating both that such terms and conditions are being modified and the nature of such modification. Any changes requested are subject to re-quotation of the final cost of the item(s) purchased by Purchaser(s).
Purchaser(s) may cancel this Agreement, in whole or part, upon written notice (i.e. US Certified Mail) to BTI within 48 hours from the Date of Order. Purchaser(s) may be liable for the payment of any cancellation charges resulting from cancellation incurred by BTI. BTI reserves the right to withhold initial payment(s), in part or in full, made by Purchaser(s), to use as remedy for production readjustment and associated costs. Cancellation requests are not accepted on items that have shipped or been prepared for shipment. A refusal of the item at delivery will not be considered a return and credit will NOT be issued back to your original payment method. Please note that all items are shipped directly from the Respective Manufacture(s). Should BTI not have Purchaser(s) Tracking information at the time Cancellation request, this does not mean that the Purchaser(s) Product(s) or Device(s) have not shipped.
Purchaser(s) (whether one or more) shall and does hereby agree to indemnify, hold harmless and defend BTI and each of its successors, assigns, heirs, legal representatives, devisees, employees, agents and/or counsel (collectively "Indemnitees") from and against any and all liabilities, claims, damages, losses, liens, causes of action, suits, fines, judgments and other expenses (including, but not limited to, attorneys' fees and expenses and costs of investigation), of any kind, nature or description, (hereinafter collectively referred to as "Liabilities") arising out of, caused by, or resulting, in whole or in part, from this Agreement.
THIS INDEMNITIFCATION APPLIES EVEN IF SUCH LIABILITIES ARE CAUSED BY THE CONCURRENT OR CONTRIBUTORY NEGLIGENCE OR BY THE STRICT LIABILITY OF INDEMNITEES OR ANY OF THEM.
Purchaser(s) hereby waives its right of recourse as to any Indemnitee when Indemnification applies, and Purchaser(s) shall require its insurer(s) to waive its/their right of subrogation to the extent such action is required to render such waiver of subrogation effective. Purchaser(s) shall be subrogated to Indemnitees with respect to all rights Indemnitees may have against third parties with respect to matters as to which Purchaser(s) provides indemnity and/or defense to Indemnitees. No Indemnification is provided to Indemnitees when the liability or loss results from (1) the sole responsibility of such Indemnitee; or, (2) the willful misconduct of such Indemnitee. Upon irrevocable acceptance of this Indemnification obligation, Purchaser(s), in its sole discretion, shall select and pay counsel to defend Indemnitees of and from any action that is subject to this Indemnification provision. Indemnitees hereby covenant not to compromise or settle any claim or cause of action for which Purchaser(s) has provided Indemnification without the consent of Purchaser(s).
XIV. FORCE MAJEURE:
In the event either party is prevented from performing this Agreement by circumstances beyond its control, and without its fault, including without limitation, strikes, lockouts, fire, explosion, flood, disruption of supply, acts of God, war or other hostilities, acts of terrorism, banking or other systemic economic failure, riot or other civil commotion, embargoes or other governmental acts, orders or regulations, breakdown of machinery, and inability to obtain shipping facilities or supplies, the obligation of BTI and its Respective Manufacturer(s) to deliver and the obligation of Purchaser(s) to accept delivery of products or services hereunder during the period of such disability shall be suspended and the products or services so affected shall by mutual agreement either be eliminated from this contract without liability to either party or reasonable extensions of the time for performance will be granted.
Delay in delivery of any merchandise shall not relieve Purchaser(s) of its obligation to accept remaining merchandise. If Purchaser(s) delays shipment after completion of the products ordered by Purchaser(s), ownership will pass to BTI, and BTI will issue an invoice for storage and handling costs, which will accrue to Purchaser(s) account until shipment is made.
XVI. SUCCESSORS AND ASSIGNS:
All the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.
Any and all controversies, of any kind or nature whatsoever, arising, directly or indirectly, in connection with this Agreement or its interpretation shall be subject to mandatory arbitration to be conducted in Bexar County, San Antonio, Texas in accordance with the rules of the American Arbitration Association, and judgment may be entered upon any final award or other final disposition in any court in Bexar County, San Antonio, Texas having jurisdiction thereof.
Any and all notices, demands, or other communication required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (3) days after deposit thereof in the United States mail to whom such notice, demand or other communication is to be given.
Section Headings are not to be considered a part of this Agreement and not intended to be a full and accurate description of the contents hereof.
Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
XXI. GOVERNING LAW:
CONSENT TO PERSONAL JURISDICTION: THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF BEXAR COUNTY AND THE STATE OF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAW PRINCIPLES. PURCHASER(S) HEREBY EXPRESSLY CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN BEXAR COUNTY TEXAS FOR ANY LAWSUIT FILED THERE AGAINST PURCHASER(S) BY BTI ARISING FROM OR RELATING TO THIS AGREEMENT.
XXII. ENTIRE UNDERSTANDING:
The Terms and Conditions constitute the entire understanding and Agreement between BTI and the Purchaser(s), and all prior Agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. There are no representations, warranties or conditions, express or implied, statutory or otherwise except those herein contained, and no agreements or waivers collateral hereto shall be binding on either party unless in writing and signed by Purchaser(s) and accepted by BTI and their Respective Manufacturer(s). This Agreement contains all the promises, warranties if any, terms and conditions of the Agreement between the parties and supersedes any and all oral or implied promises, undertakings and prior Agreements.
If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
XXIV. ATTORNEY FEES:
In the event that this Agreement becomes subject to litigation between BTI and the Purchaser(s), both parties agree that the prevailing party shall be entitled to an award of attorney's fees, costs, and the prevailing statutory interest from the other party.
XXV. FURTHER DOCUMENT:
If any other provisions or agreements are necessary to enforce the intent of the Terms and Conditions, both parties agree to execute such provisions or agreements upon request.