1. By purchasing the plans and (if applicable) kits selected, the customer (“Client”) is entering into a binding agreement between Barbara Butler Artist-Builder Inc. (“Artist”) of 325 So. Maple Ave. #37, So. San Francisco, California 94080, and Client, incorporating the below-listed terms and conditions_.
2. The Artist agrees to provide detailed architectural plans (“Plans”) for the specified residential play structure or treehouse (“Structure”). The Client agrees to pay the Artist for the Plans as specified.
3. The Artist will provide a set of Plans sufficiently detailed for construction of the Structure by a home builder familiar with architectural plans and workshop techniques. If kits are also being purchased, the Artist will supply kits and instructions with parts and detailed explanations sufficient, if followed carefully, to provide the materials necessary to facilitate construction of the Structure (“Kits”).
4. The Client is responsible for obtaining and paying for any and all permits necessary for the work to be performed and for researching about and adhering to all applicable local statutes and ordinances. Client is encouraged to compare the stated dimensions of a Structure with applicable local codes to determine if compliance will be met. The Client is further responsible for examining the work site for hidden conditions or suitability for construction of the Structure. Artist recommends installing a soft surface below all Structures, such as a bed of redwood chips or a suitable rubber deck material at a depth that meets the Consumer Products Safety Commissions “Handbook for Public Playground Safety” Critical Heights.
5. All designs and drawings incorporated in the Plans remain the sole intellectual property of the Artist. The Artist reserves all copyright in and to the Plans, and all rights of reproduction and publicity. The Client may photograph the Structure during and after construction for the Client’s personal use, but any commercial exploitation of the images, in connection with or separate from the Plans themselves, is strictly prohibited. Artist derives its livelihood from the designs incorporated in the Plans and any infringement shall be pursued vigorously, including the award of statutory attorneys’ fees and damages.
6. The Artist hereby grants to the Client a limited license to build one (1) Structure utilizing the Plans (the “License”). The Client agrees to pay to the Artist an additional fee of [two-thirds (2/3) the purchase price of the Plans] for each additional Structure built from the Plans, which shall be paid prior to construction.
7. Apart from the use granted in the License, the Client acknowledges that the License is non-transferable. The Client agrees not to make any copies of the Plans and not to sell or otherwise assign the Plans to any other party, except that the Client may transfer ownership of the Plans in the event of the sale by Client of the completed Structure, provided the new owner agrees to the same terms and conditions restricting the transfer of the Plans.
8. Client hereby agrees and recognizes: (a) that Artist does not represent, guarantee or warrant the structural integrity, performance or safety of the Structure to be assembled pursuant to the Plans and/or the Kits (as applicable), and that ARTIST GIVES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, (b) that the Structure assembled will be utilized entirely at the risk of the Client, (c) that individuals may climb and play on the completed Structure with and without supervision and that there is an inherent risk that such individuals may be injured, and (d) that all children should be supervised by an adult at all times while using the Structure. CLIENT, ON BEHALF OF ITSELF, ITS AGENTS AND ASSIGNS HEREBY ASSUMES ALL RISK ASSOCIATED WITH THE USE OF THE PLANS, KITS AND/OR COMPLETED STRUCTURE (AS APPLICABLE) AND WAIVES ANY AND ALL CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE ASSOCIATED WITH ANY SUCH USE BY CLIENT AND/OR CLIENT’S FAMILY MEMBERS, AGENTS, INVITEES OR TRESPASSERS. ADDITIONALLY, CLIENT AGREES TO INDEMNIFY AND HOLD HARMLESS ARTIST FOR ANY AND ALL CLAIMS MADE BY THIRD PERSONS DUE TO INJURIES, INCLUDING DEATH, AND FOR PROPERTY DAMAGE STEMMING IN ANY WAY FROM THE USE OF THE PLANS, KITS AND/OR STRUCTURE (AS APPLICABLE) BY ANY PERSON.
9. Artist hereby warrants against defects in the materials and workmanship for the materials supplied in Kits for one (1) year. The warranty is limited to repair of any defects discovered within one year of completion and does not include (a) normal wear and tear (b) damage or abuse, or (c) defects resulting from incorrect homeowner? construction.
10. In no event shall Artist be liable to the Client, in any circumstance arising under this Agreement, for more than the amount paid to the Artist for the Plans and/or the Kits, as applicable.
11. Artist recommends using the same type of quality redwood for construction that are supplied in the Kits, and to stain such wood only with pigmented tung-oil stains. Keep in mind that, whether obtained in a Kit or not, natural variations may occur in redwood. Surface variations are to be expected and are in no way to be considered defective. As wood ages, it does not retain its original color or necessarily color uniformly. Wood may take on a myriad of color and stain variations at different rates depending upon many factors, such as species growing conditions, season of harvest, the nature of weather/moisture exposure primers and coatings if applied, and extent of extractive bleeding (wood naturally contains extraneous materials, the organic components of which are called extractives). As the wood weathers it may develop surface “checks” which are not structural in nature and the pigmented stain will fade. Artist recommends annual maintenance of the, including cleaning,re-staining worn spots, application of a clear coat of tung-oil and safety review. Client is responsible for following any included maintenance instructions and for regularly inspecting the condition of a Structure.
12. This Agreement shall be construed in accordance with the laws of the State of California. This written Agreement constitutes the entire terms and conditions between parties, together with the order form. The Client acknowledges that he or she: (a) is at least eighteen (18) years of age and (b) has had an opportunity to seek legal advice before entering into this Agreement.