SwingSetMall.com Terms of Service Agreement
Last Updated: October 10, 2022
Thank you for using the SwingSetMall.com website and associated content (hereinafter "Website"), which is owned, operated, or licensed by WonderPlay, Inc. ("SwingSetMall.com"). SwingSetMall.com provides you with a limited license to use the Website subject to the terms and conditions contained within this Terms of Service Agreement (hereinafter "Agreement").
THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT AFFECTS YOUR LEGAL RIGHTS. YOU HAVE A DUTY TO READ THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTAINED WITHIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION AND CLASS ACTION WAIVER, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE WEBSITE.
By using the Website, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. SwingSetMall.com reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event SwingSetMall.com replaces, modifies, or amends this Agreement, the Last Updated date, located at the top of this Agreement, will change. Your continued use of the Website after a change in the Last Updated date above will constitute your manifestation of assent to and agreement with any replacement, modification, or amendment herein.
a. User Warranties
By using the Website, you warrant that you are age eighteen (18) or above the age of majority within your legal jurisdiction, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
b. Limited License
You acknowledge and agree that the Website is the property of or is licensed by SwingSetMall.com and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. SwingSetMall.com reserves all of rights not expressly granted through this Agreement.
SwingSetMall.com provides you with limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.
c. Acceptable Use Policy
You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from scraping, crawling, aggregating, hacking, performing denial of service attacks on, reverse engineering, or circumventing technological protection measures of the Website.
d. Ordering and Payment
Payment for all orders placed through the website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and SwingSetMall.com until SwingSetMall.com accepts your invitation to deal by performance, specifically, by shipping the ordered goods. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that SwingSetMall.com is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by SwingSetMall.com's payment processor. You agree that you will not initiate any chargebacks to SwingSetMall.com unless otherwise authorized by SwingSetMall.com in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against SwingSetMall.com.
All purchases made through the Website are subject to SwingSetMall.com's Shopping and Shipping Policies, which are hereinafter incorporated by reference and may be modified at any time and within SwingSetMall.com's sole and absolute discretion.
SwingSetMall.com's products have been designed for the specific uses designated within their accompanying instructional materials or as displayed on the Website. These products may not be used for unlawful uses or for uses not expressly stated in their instructional materials.
e. Product Availability
While SwingSetMall.com strives to carry or have regular access to sufficient inventory, it is possible high volume or rare products are out of stock at the time of your order. If this is the case, SwingSetMall.com will contact you in a reasonable time frame to advise you of the issue. If you have time sensitive orders, please respond to SwingSetMall.com's notice as soon as possible.
SwingSetMall.com may provide shipping via USPS, UPS, FEDEX Ground, or other providers All prices are F.O.B. from Bremerton, Washington, United States, unless specifically provided otherwise.
Any damaged or incorrect shipments must be reported within 48 hours of receipt. For damaged shipments, the shipment must be refused at the time of delivery and the original box and packaging must be kept until the carrier/shipper who delivered claims them unnecessary for any claim purpose. If not reported within 48 hours of receipt, SwingSetMall.com will consider all claims of damage, defect, or other error waived. All shipment fees incurring from refused products shall be paid by you and will not be chargeable to SwingSetMall.com.
Shipping charges are based on the monetary amount of your order and the shipping destination. All shipments will be made consistent with SwingSetMall.com's Shipping and Handling policy, which is hereinafter incorporated by reference and may be changed at any time and within SwingSetMall.com's sole and absolute discretion.
To return products, you must contact us within thirty (30) days of the date of purchase or ten (10) days from your receipt of the order, whichever is later, and request a return authorization from SwingSetMall.com. Non-defective returns must be received in the original clean and new packaging with all components in working order and in re-sellable and unused condition. Only unused items are eligible for non-defective returns. Non-authorized returns will not be accepted, and all returns will be made consistent with SwingSetMall.com's Shopping Policy, which is hereinafter incorporated by reference and may be changed within SwingSetMall.com's sole and absolute discretion.
You understand and agree that all shipping charges and processing fees may be deducted from any credit due to you for any returned goods, including shipping charges incurred by SwingSetMall.com on the return of goods from "Free Shipped" orders. Returned products may be subject to a 25% restocking fee to be retained by SwingSetMall.com. Further, you are responsible for any and all costs associated with shipping the returned products to SwingSetMall.com.
h. Changed and Cancelled Orders
You understand and agree that you may change quantities or add or remove items from your order by contacting SwingSetMall.com for up to twelve (12) hours after your order is placed and before your order has already shipped. SwingSetMall.com reserves the right to charge an administrative fee of up to $10.00 to any order that has not yet shipped and to which changes have been requested or made after the expiration of twelve (12) hours from the time of order. Orders may not be changed after they have been shipped.
If you would like to change the colors of any items of your order, SwingSetMall.com will make reasonable efforts to make these changes prior to shipping. However, once your order has shipped, the order is finalized and cannot be changed. Any requests to change color after shipping must be processed as a non-defective return as outlined above.
Should you wish to cancel an order, you may do so prior to shipping. Some items may, when canceled, require a restocking fee even if they are canceled prior to shipment. This restocking fee will be deducted from any amount refunded to you. Once any items in your order have shipped, any shipping, handling, or restocking fee costs will be deducted from the refund amount. Some custom items, such as roto-molded slides, powder-coated components, and custom name plates, are non-refundable. You understand and agree that you must review the item's description on the Website to determine if that item is non-refundable.
i. User Accounts
SwingSetMall.com may provide you with the ability to create a user account, which may provide you with the ability to view messages, view order status, and see recently viewed and purchased items through the Website (hereinafter "User Account").
You acknowledge and agree that you control access to your User Account. Your User Account may only be used by you or by third parties with your express written consent. SwingSetMall.com will not be held responsible or liable for any unauthorized access to your User Account, and you are under a continuing duty to promptly provide SwingSetMall.com with notice of any unauthorized or unusual access to your User Account. You are advised to keep the username and password associated with your User Account secure and secret. By creating a User Account and providing your personal information to SwingSetMall.com, you acknowledge and agree that SwingSetMall.com may use your personal information to contact you.
SwingSetMall.com reserves the right to suspend or terminate your User Account at any time and in its sole and absolute discretion, including, but not limited to, for a violation of any term or condition of this Agreement.
j. Third Party Links
You acknowledge and agree that the Website may contain links to third party websites or content that SwingSetMall.com does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that SwingSetMall.com will not be responsible for websites not under the ownership or control of SwingSetMall.com.
k. Term and Termination
The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) SwingSetMall.com terminates your access to the Website; or (ii) you cease using the Website and terminate your User Account. SwingSetMall.com reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.
You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on the Website by SwingSetMall.com, including but not limited to SWINGSETMALL.COM, are common law or registered trademarks owned by or licensed to SwingSetMall.com. You are expressly prohibited from using the trademarks of SwingSetMall.com to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of SwingSetMall.com in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
m. ADA Accessibility Policy
We are happy to accommodate users with special needs or requirements. SwingSetMall.com is committed to providing its employees and the public, including persons with disabilities, with access to the Website and its related information and services. In designing the website, SwingSetMall.com makes reasonable efforts to comply with the WCAG 2.0 Level AA web accessibility standards. The Website has been designed to reach the widest audience possible, but, if you have difficulty viewing the Website, using the Website, or performing any transaction through the Website, you are encouraged to contact SwingSetMall.com at 800-985-7659.
n. Disclaimer of Warranties and Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN "AS-IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT SWINGSETMALL.COM WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT SWINGSETMALL.COM'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.
SWINGSETMALL.COM EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED IN THIS AGREEMENT, PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
SWINGSETMALL.COM WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF PRODUCTS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT SWINGSETMALL.COM'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID FOR THE PRODUCTS OR $1000, WHICHEVER IS LESS.
o. Product Warranty
SwingSetMall.com offers a one-year (12 month) ("Warranty Period") limited warranty on all products advertised and sold under the SwingSetMall.com brand and shipped from its Bremerton, Washington warehouse ("Products"). This limited warranty does not apply to products branded or manufactured by third parties other than SwingSetMall.com. SwingSetMall.com's limited warranty warrants against defects in the materials and workmanship of the Product(s) when used in accordance with the Product's manual, if any, and in adherence with the playground safety instructions displayed on the Website. If a defect arises during the Warranty Period, SwingSetMall.com will, at its option, repair the Product(s), replace the Product(s), issue a gift certificate credit, or refund the original purchase price. SwingSetMall.com does not express or imply, and specifically disclaims, any direct warranty on items that are manufactured or branded as originating from a third-party and are not branded or sold as SwingSetMall.com Products or that do not ship from its fulfillment warehouse in Bremerton, Washington. All such warranties are the responsibility of the third-party manufacturer or shipper.
SwingSetMall.com's limited warranty does not extend to Product(s) that have not been used consistent with the Playground Safety instructions displayed on the Website. Specifically, residential equipment is for use in a private backyard by children between eighteen (18) months and ten (10) years of age only and under one-hundred ten (110) pounds unless otherwise specified in the product description. All residential equipment having part numbers ending in "R" are for residential use only. Commercial equipment can be used in residential backyard settings, as well as in school, park, daycare center, and other public settings. Commercial equipment is intended for use by children between the ages of two (2) to twelve (12) years of age and under one-hundred twenty-five (125) pounds unless otherwise specified in the product description. Any use outside of these specifications will void the limited warranty offered by SwingSetMall.com. SwingSetMall.com's limited warranty also does not extend to Products that are not used in a manner that is consistent with the specific uses designated within their accompanying instructional materials or as displayed on the Website.
Any limitations of liability contained within this Agreement will not apply to (i) death or personal injury pursuant to any mandatory law on product liability; (ii) fraud or fraudulent representation; (iii) intentional misconduct or gross negligence; (iv) or a culpable breach of major contractual obligations. Any claims of damages based on gross negligence or culpable breach of major contractual obligations will be limited to those damages that are foreseeable and typical for the contract.
You agree to indemnify, defend, and hold harmless SwingSetMall.com, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend SwingSetMall.com will not provide you with the ability to control SwingSetMall.com's defense, and SwingSetMall.com reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
q. Choice of Law and Stipulation to Jurisdiction
You and SwingSetMall.com agree that any dispute, claim or controversy arising out of or in relation to your use of the Website, this Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between you and SwingSetMall.com, you and SwingSetMall.com agree that the arbitrator will decide that issue. Notwithstanding the foregoing, you and SwingSetMall.com each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under Washington law and will be heard exclusively in the state and federal courts located in Bremerton, Washington.
You and SwingSetMall.com agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Association's most recent Commercial Arbitration Rules then in effect except where as modified herein. The arbitration will be conducted in Bremerton, Washington and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be provided with the right to award costs and attorneys' fees to the prevailing Party. This arbitration will be held in Bremerton, Washington and both parties agree that they will be required to be present in Bremerton, Washington for arbitration under the terms of this Agreement and hereby submit to exclusive personal jurisdiction in Bremerton, Washington. The arbitrator will apply the laws of the State of Washington and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause.
You and SwingSetMall.com acknowledge and agree that each are waiving the right to a trial by jury as to all arbitrable disputes.
You and SwingSetMall.com acknowledge and agree that, to the fullest extent permitted under the law, each are waiving the right to participate as a plaintiff or class member in any class action lawsuit, class arbitration, or private attorney general action. If this class action waiver is held unenforceable with respect to the dispute between the Parties, the Parties agree that the entirety of the arbitration clause will be deemed void with respect to such dispute and the dispute must proceed in court.
r. Force Majeure
SwingSetMall.com will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond SwingSetMall.com's control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend SwingSetMall.com.
In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
You are expressly prohibited from assigning your rights and duties under this Agreement. SwingSetMall.com reserves the right to assign its rights and duties under this Agreement, including in a sale of SwingSetMall.com or its Website.
Mobile Terms of Service
Last updated: April 28, 2023
The SwingSetMall.com mobile message service (the "Service") is operated by SwingSetMall (“SwingSetMall.com”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
By consenting to SwingSetMall.com’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of SwingSetMall.com through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with SwingSetMall.com. Your participation in this program is completely voluntary.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of the Service at any time. Text the single keyword command STOP to +18776190861 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other SwingSetMall.com mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.
For Service support or assistance, text HELP to +18776190861 or email email@example.com.
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.