Sales Terms & Conditions
All sales of WaveJet products are subject to, and by making any payment and/or accepting delivery of any WaveJet product you agree to be bound by, these Terms and Conditions and Limited Warranty.
TERMS AND CONDITIONS AND LIMITED WARRANTY
The following terms and conditions (“Terms and Conditions”) apply to the sale of all products manufactured or distributed by or for Boomerboard, LLC, a Connecticut limited liability company doing business as WaveJet (“WaveJet” and the “Products”).
1. Transportation, Title, Risk of Loss, Costs. All Products will be shipped F.O.B. WaveJet’s designated facility. Title and risk of loss will pass to Customer upon delivery by WaveJet of the Products to the carrier. WaveJet will select the carrier for shipment of the Products to Customer. WaveJet, upon the written request of Customer, will procure insurance to cover losses incurred during shipment. Customer will be responsible for payment of all shipping, handling and insurance costs.
2. Limited Warranty. WaveJet warrants to Customer that for a period of one (1) year from the date a Product is shipped by WaveJet, the Product will be free of defects in materials and workmanship. WaveJet will repair, replace, or refund Customer’s purchase price (in WaveJet’s sole and absolute discretion) for any Product that fails to conform to the limited warranty set forth in this Section. Such repair, replacement, or refund will be Customer’s sole and exclusive remedy for all claims of any kind arising out of or relating to the Products. Customer may not assign or pass through this Limited Warranty to any third party, and any purported assignment or pass-through is null and void. This limited warranty will not apply to any Product that (a) has had the Serial Number or other identification marking altered, removed or rendered illegible; (b) has been damaged by or subject to improper operation or has been used in any way other than in strict compliance with WaveJet’s operation manuals; (c) has become defective or inoperative due to its use with any equipment or products not supplied or approved by WaveJet; or (d) has been repaired, modified, or otherwise altered by anyone other than WaveJet.
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, THAT THE PRODUCT WILL MEET CUSTOMER’S NEEDS, THAT THE OPERATION OF THE PRODUCT WILL BE ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
3. Limitations on Liability. WAVEJET WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES SUFFERED BY CUSTOMER RELATING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS AND/OR THE USE OR INABILITY TO USE THE PRODUCTS, LOSS OF GOODWILL OR PROFITS, AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WAVEJET’S LIABILITY FOR ANY CAUSE OF ACTION RELATING TO THESE TERMS AND CONDITIONS AND/OR THE USE OR INABILITY TO USE A PRODUCT EXCEED AMOUNTS RECEIVED BY WAVEJET FROM CUSTOMER FOR THAT PRODUCT.
4. Products Return Procedures. If Customer believes it has a warranty claim, Customer must contact WaveJet and obtain a Return Material Authorization (“RMA”) number. Customer will pack and ship the Product in a container which can be reasonably expected to safely transport the Product. Customer will prepay the shipping costs, and if directed by WaveJet any insurance costs, for such return. WaveJet will not accept any return Product shipment sent C.O.D. Customer will indicate the RMA number on the outer portion of the shipping container and will include a description of the problem with the Product in the shipment. If WaveJet determines that the Product is subject to a valid warranty claim, WaveJet will ship the repaired or replacement product to Customer at WaveJet’s cost (or, in WaveJet’s discretion, will refund the purchase price of such Product), and will reimburse Customer for properly documented shipping and insurance costs incurred in returning the Product to WaveJet.
5. Non-Warranty Repair. For non-warranty repairs, Customer will return the Product to WaveJet following the procedure described in Section 4 above. The Product will be evaluated by WaveJet, and a repair estimate will be provided to the customer within ten (10) business days of WaveJet’s receipt of the Product.
6. Force Majeure. WaveJet will not be liable for any failure to perform or other loss due to unforeseen circumstances or causes beyond its control, including without limitation acts of nature, strikes, labor, material and/or transportation shortages, natural casualties, governmental regulations, war, fire, flood, disasters and civil unrest.
7. Proprietary Rights. WaveJet will exclusively own all right, title and interest in and to all intellectual property rights embodied in or related to the Products and to all improvements thereto (the “Proprietary Rights”). Subject to Customer’s performance of all obligations hereunder, WaveJet hereby grants to Customer a personal, non-exclusive, non-transferable license to use WaveJet’s Proprietary Rights only as they are embodied in the Products as directed in WaveJet’s operation manuals and for no other purpose. Customer will not remove WaveJet’s intellectual property notices from the Products or any other materials supplied by WaveJet. Customer’s breach of this Section 7 may result in irreparable and continuing damage to WaveJet for which there may be no adequate remedy at law, and WaveJet will be entitled to injunctive relief without the posting of a bond, as well as such other and relief as may be appropriate.
8. Waiver. WaveJet will not be deemed to waive any default of any provision of these Terms and Conditions unless WaveJet signs a written waiver to such effect.
9. Indemnity. Customer will indemnify, defend and hold WaveJet and its members, officers, managers, agents, employees and representatives harmless from and against all claims, damages, expenses, liabilities and losses, including without limitation, attorneys’ fees and costs incurred that in any way arise out of or relate to (a) the manner in which Customer or any person uses or operates the Products; (b) any personal injuries, property damage, or other losses resulting from the use of the Products by any person; (c) any transactions or agreements between Customer and other persons concerning the Products; (d) a breach by Customer of these Terms and Conditions; or (e) Customer’s integration or use of a WaveJet Pod or related accessory, as set forth in Section 15 below.
10. Entire Agreement. Customer agrees to these Terms and Conditions by making any payment to WaveJet and/or accepting delivery of any WaveJet Product. These Terms and Conditions are the sole and entire agreement between the parties. No modification of these Terms and Conditions will be valid unless in writing and signed by an authorized representative of WaveJet.
11. Governing Law and Venue. These Terms and Conditions will be construed and enforced under the laws of the State of California, without regard to conflicts of law. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in San Diego, California, for the purpose of any action brought in connection with this Agreement
12. Export. Customer will not directly or indirectly export, transfer, or in any way distribute any of the Products, or parts thereof, or any of WaveJet’s Proprietary Rights or technical data to any country or territory that is prohibited from receiving such materials under any applicable law of the United States, including without limitation, the United States export laws and regulations. Customer will be responsible for obtaining all export licenses or other approvals required to export or re-export the Products outside of the United States or Customer’s country.
13. Assumption of Risk and Waiver. Customer acknowledges it has been informed and understands that there are certain risks and dangers associated with the use of the Products. Those risks include but are not limited to personal injury, death and property damage which may result from, among other things, loss of control, collisions with surfers or other users of watercraft, swimmers, and natural and man-made objects.
Customer fully understands and appreciates the danger involved in using the Products. Customer, on behalf of CUSTOMER and CUSTOMER’S heirs, executors, administrators, successors and assigns: (a) fully assumes the risks involved and agrees to use best judgment in undertaking these activities; (b) will strictly follow all safety instructions set forth in the WaveJet OPERATIONS MANUALS, OTHER DOCUMENTS PROVIDED BY WAVEJET, AND APPLICABLE LAWS; and (c) hereby fully and voluntarily waives, relinquishes, covenants not to sue, releases and agrees to indemnify and hold harmless WaveJet, its members, officers, managers, agents, employees and representatives (each a “Released Person”) from any breach of a covenant set forth herein and from any claim or loss for personal injury, property damage, or death that may arise from use of the PRODUCTS, whether or not such injury, damage or death was caused by or contributed to by the alleged negligence on the part of a Released Person.
Customer, on behalf of Customer and its heirs, executors, administrators, successors, and assigns: (a) further agrees that this waiver and assumption of risk is intended to be as broad and inclusive as is permitted by applicable law and that if any portion thereof is held as invalid, it is agreed that the balance shall nonetheless continue in full force and effect; (b) acknowledges and agrees this assumption of risk and waiver provides for the release of legal rights; and (c) expressly waives whatever benefits may be available under Section 1542 of the California Civil Code which reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
14. Age and Legal Restrictions. WaveJet Products are onlyrecommended for use by persons age 12 and above (or, if higher, such other minimum age as may be prescribed by applicable law). Customer must comply with all applicable laws when using the WaveJet Products, including without limitation laws relating to the minimum age of a rider, safety and training requirements, marking requirements, speed limits, registration requirements, use taxes, alcohol and drug laws, and all other similar laws.
15. WaveJet Pods. WaveJet Pods and related accessories are intended for use only with WaveJet brand watercraft. Customer integrates or uses a WaveJet Pod or related accessory with a product other than a WaveJet brand watercraft at Customer’s own risk. WaveJet will not be responsible for any claims, damages, expenses, liabilities or losses resulting in whole or in part from Customer’s integration or use of a WaveJet Pod or related accessory with any product other than a WaveJet brand watercraft, and Customer will indemnify, defend, and hold WaveJet harmless from and against all such items as set forth in Section 9 above. Customer’s integration or use of a WaveJet Pod or related accessory with any product other than a WaveJet brand watercraft will nullify and void all of WaveJet’s representations and warranties with respect to such Pod or related accessory.
16. Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be void, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
