Terms and Conditions
All sales by Ewing Acquisitions, LLC, dba The Ice Barrel (“Seller”) of any products (“Goods”) to any customer (“Buyer”) shall be exclusively governed by these terms and conditions (“Terms and Conditions”). These Terms and Conditions take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Buyer is limited to these Terms and Conditions. Any changes in these Terms and Conditions must specifically be agreed to in writing by Seller and Buyer before becoming binding on either Seller or Buyer. The parties expressly agree that except for the item type, quantity, requested delivery dates and location, any terms and conditions on Buyer’s purchase order will have no effect whatsoever.
- All orders placed with Seller must be in a signed writing or upon verbal order confirmed in a signed writing. Any such purchase order shall only be accepted and binding on Seller upon written acceptance or shipment of the Goods, whichever occurs first (“Order”).
- Unless otherwise expressly agreed to by the parties, Seller shall deliver Goods, “Ex Works” Seller’s point of manufacture. Shipping dates are approximate and risk of loss to the Goods shall pass to Buyer upon delivery to the common carrier. Buyer shall be responsible for Goods lost, damaged or delayed in transit, as well as all delivery costs. Seller reserves the right to allocate shipments of Goods among its customers when Seller determines allocation is necessary.
- Goods are deemed accepted upon shipment unless notice of a material and patent defect is received within ten (10) days of shipment and the Goods are returned to Seller unused within thirty (30) days of acceptance. In the event of Buyer’s rejection of defective Good(s), Seller’s sole and exclusive obligation to Buyer shall be, at Seller’s option, to exchange such Good(s) for a new one of the same type or to provide Buyer with a refund or credit in the amount of the price of the Good(s). Following acceptance, Buyer waives all right to revocation.
- Prices and Payment. All prices are quoted in good faith and are subject to change without notice. From time to time manufacturers may change prices without notice prior to shipment, Seller may quote an incorrect price or applicable taxes may increase, in which case any price or tax increase may be added to Buyer’s price. Prices are exclusive of, and Buyer is responsible for all sales, value added, use and like taxes and any applicable customs duties, import licenses, excise fees or tariffs (“Taxes”). All Goods will be paid for by Buyer in advance upon placement of Buyer’s order. Failure of Buyer to make payments requested by Seller shall give the Seller the option to cancel or to delay delivery without otherwise affecting Seller’s rights hereunder.
- Warranty Disclaimer. All Goods are provided “as is.” Seller makes no representation or warranty (express, implied or statutory) with respect to the Goods to be provided to Buyer under these terms and conditions, and expressly disclaims any implied warranty of non-infringement, title, merchantability or fitness for a particular purpose. No statement made by seller, whether on its website or otherwise shall be construed to create any express or implied warranty.
- Limitation of Liability. Seller’s total liability arising from the purchased Goods, under any theory of liability, will be limited to the amounts received by the Seller from Buyer for the particular Good giving rise to a claim. In no event shall Seller be liable for any special, incidental, indirect, punitive or consequential damages, including without limitation, any loss of use, loss of contracts, loss of profit, loss of revenue, loss of goodwill, loss of anticipated savings, increased costs or liabilities to third parties, arising out of or related to Buyer’s order of Goods, regardless of whether Seller has been advised of the possibility of such damages. No action relating to the Goods may be brought more than one year after shipment.
- Buyer will indemnify, defend, and hold Seller, its members, officers, employees, affiliates, successors and assigns harmless against all claims, liabilities, obligations, damages, expenses (including reasonable attorney fees), and amounts paid in settlement by, imposed on or incurred by Seller related to acts or omissions of Buyer.
- Proprietary Information and Confidentiality. All written information provided by Seller in connection with any order, including, but not limited to, any specifications, drawings, and any other types of tangible or intangible information, shall remain the property of Seller and shall not be disclosed to any third parties without written consent of Seller. No licenses are granted to any Seller intellectual property rights under these Terms and Conditions or any orders. All rights not expressly granted in these Terms and Conditions are reserved by Seller, and all intellectual property rights developed in relation to the Goods shall vest in Seller. In no event shall Buyer reverse engineer the Goods. Buyer shall keep confidential and shall not, without the prior written consent of the Seller, disclose to any third party or otherwise make public the terms or existence of any confidential or proprietary information of the Seller, including without limitation, these Terms and Conditions, information not generally known to the public, strategies, pricing, trade secrets, know-how, financial information, sales and distribution information, actual and potential customers.
- Seller may, with written notice, for whatever reason or no reason, with or without cause terminate any order. The provisions of Sections 5, 6, 7 and 8 shall survive the termination of any order.
- Licenses and Authorizations. Buyer is responsible for obtaining any licenses or other authorizations necessary for acquisition or use of any purchased Good(s). Buyer warrants that it has the requisite power and authority to enter into and agree to these Terms and Conditions and that doing so, will not conflict with, result in the breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease or contract to which Buyer is bound.
- Relationship of Parties. The parties agree that each is an independent contractor of the other and cannot bind the other in any respect. Neither party is responsible for the actions of the other, its agents, independent contractors or employees. Buyer will comply with all applicable laws, regulations and orders.
- Miscellaneous. Buyer agrees to comply with all applicable laws, regulations and orders. If a provision of these Terms and Conditions is held invalid, illegal or unenforceable, such holding will not affect the other sections in these Terms and Conditions. Seller can exercise any and all remedies allowed by law. If Seller waives a breach or fails to waive a breach, it is not deemed to be a waiver to other breaches. These Terms and Conditions are governed by Colorado law. The parties irrevocably consent to the jurisdiction and venue in any federal or state court of competent jurisdiction located in Colorado. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions. Buyer may not assign any of its rights, interests, obligations or liabilities with regard to the purchase of Goods. Seller shall be excused from performance of its obligations if it suffers an event that is caused by an act of God, or other cause beyond its control.
WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNIFICATION AGREEMENT
PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.
- Definitions. The person who is participating in the purchase of and use of The Ice Barrel products shall be referred to hereinafter as “”. The “Undersigned” means only the Participant when the Participant is age 18 or older OR it means both the Participant and the Participant’s parent or legal guardian when the Participant is under the age of 18. “Released Parties” means The Ice Barrel and any of its respective successors in interest, affiliated organizations and companies, insurance carriers, agents, employees, representatives, assignees, officers, directors, members, and shareholders. The “Activity” means taking part in use of the product (Product).
- Risks of Activity. The Undersigned agree and understand that taking part in the Activity can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. The Undersigned acknowledge that the Activity is inherently dangerous and fully realize the dangers of participating in the Activity. The risks and dangers of the activity include but are not limited to: extreme physical demands associated with exposure to cold water immersion, entering and exiting the cold water container, and Participant’s poor health or physical condition, and mental distress from exposure to any one of the above. THE UNDERSIGNED ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.
- Risks of purchase of, use of, transportation of, and storage of the product. Undersigned acknowledges there are risks inherent with improperly using, transporting, and storing the Product that could result in physical injury and/or property damage. The Product is a barrel that is designed to be filled with water. Improper use of the product could result in water damage to property. Improper transportation of the product could result in water damage or other damage to property being utilized to transport the Product. Improper storage or placement of the Product in any residence, building, storage facility, porch/deck, outdoor area, or otherwise could further result in property damage. Undersigned is responsible for proper maintenance of the Product and The Ice Barrel is not responsible for any injuries or damage resulting from improper maintenance of the Product.
- Release, Indemnification, and Assumption of Risk. In consideration of the Participant being permitted to participate in the activity, ownership, and use of the Product, the Undersigned agree as follows:
(a) Release. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE, AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which the Undersigned, or any of them, have or which could be asserted on behalf of the Undersigned in connection with the Participant’s participation in the Activity, including, but not limited to, claims of negligence, negligence per se, negligent misrepresentation, premises liability, tort claims, breach of warranty, statutory violations and breach of contract.
(b) Indemnification. The Undersigned hereby agree to indemnify, defend and hold harmless the Released Parties from and against any and all liability, costs, property loss, medical bills, loss of income, expenses, attorney’s fees, liens, subrogation rights, and all other damages of any kind or nature whatsoever, and from any suits, claims or demands, including legal fees and expenses whether or not in litigation, arising out of or related to Participant’s participation in the Activity and ownership of the Product. Such obligation on the part of the Undersigned shall survive the period of the Participant’s participation in the Activity.
(c) Assumption of Risk. The Undersigned agree and understand that there are dangers and risks associated with the participation in the Activity and use pf the Product and that INJURIES AND/OR DEATH may result from participating in the Activity and use of the Product, including, but not limited to, the acts, omissions, representations, carelessness, and negligence of the Released Parties. The Undersigned acknowledges that participation in the Activity is voluntary. The Undersigned also acknowledge that Participant is physically and mentally capable of participating in the Activity. By signing this document, the Undersigned recognize that property loss, injury and death are all possible while participating in the Activity. RECOGNIZING THE RISKS AND DANGERS, THE UNDERSIGNED UNDERSTAND THE NATURE OF THE ACTIVITY AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE PARTICPATION IN THE ACTIVITY AND USE OF THE PRODUCT, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT, OR OTHERWISE. Undersigned further acknowledges the risks inherent with ownership, transportation, and storage of the Product.
5. Minor Acknowledgment. In the case of a minor Participant, the Undersigned parent or legal guardian acknowledges that he/she is not only signing this Agreement on his/her behalf, but that he/she is also signing on behalf of the minor and that the minor shall be bound by all the terms of this Agreement. Additionally, by signing this Agreement as the parent or legal guardian of a minor, the parent or legal guardian understands that he/she is also waiving rights on behalf of the minor that the minor otherwise may have. The Undersigned parent or legal guardian agrees that, but for the foregoing, the minor would not be permitted to participate in the Activity and product use. By signing this Agreement without a parent or legal guardian’s signature, Participant, under penalty of fraud, represents that he/she is at least 18 years of age. If signing as the parent or guardian of a minor Participant, signing adults represent that they are a legal parent or guardian of the minor Participant.
6. Miscellaneous. The Undersigned further agree and understand: (a) Participant will not engage in any activities prohibited by any applicable laws, statutes, regulations and ordinances; (b) this Agreement shall be governed by the laws of the State of Colorado, and the exclusive jurisdiction for any claim shall be the District Court of Douglas County, Colorado or the federal court of the State of Colorado; (c) THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR CONTRACTS, ARRANGEMENTS, COMMUNICATIONS, OR REPRESENTATIONS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF INCLUDING BUT NOT LIMITED TO ANY PRIOR REPRESENTATIONS ABOUT THE ACTIVITY ITSELF OR THE SAFETY THEREOF; (d) the Undersigned is voluntarily and fairly entering into this Agreement. The Undersigned understand and acknowledge that this Agreement is a contract and shall be binding to the fullest extent permitted by law. If any part of this Agreement is deemed to be unenforceable, the remaining terms shall be an enforceable contract between the parties. It is the intent of the Undersigneds that this agreement shall be binding upon the assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives of the Undersigned.
I HAVE CAREFULLY READ THE FOREGOING ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNIFICATION AGREEMENT AND UNDERSTAND ITS CONTENTS. I AM AWARE THAT I AM RELEASING LEGAL RIGHTS THAT OTHERWISE MAY EXIST.
THE ICE BARREL IS MADE FROM 90% VIRGIN POLYETHYLENE WITH 10% RECYCLED POLYETHYLENE.
CALIFORNIA REQUIRES THE FOLLOWING NOTICE: WARNING
THIS PRODUCT CONTAINS CHEMICALS (LLDPE) KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. FOR MORE INFORMATION PLEASE GO TO WWW.P65WARNINGS.CA.GOV
ALL PRODUCTS SHIPPED TO CALIFORNIA DO NOT HAVE ANY RECYCLED POLYETHYLENE. PROP 65 CALIFORNIA COMPLAINT ORDERS ARE MADE WITH VIRGIN POLYETHYLENE.