1. Buyer's Representations. Buyer represents that he/she is very experienced in model airplane operation, and that all of the information set forth in the Purchase Application is true and correct. Ultimate-Jets relies on such representations, and would not enter into this sale but for these representations.
2. Buyer's Acknowledgment of Risks and Dangers. Buyer recognizes that operation of the Model Engine may be dangerous, and that under certain circumstances, its handling will be dangerous. As set forth in Paragraph 3 below, Buyer accepts full responsibility for all of these risks and waives all liability as against Ultimate-Jets.
- (a) Buyer's Acknowledgment of Danger. Buyer expressly acknowledges that use of the Model Engine is dangerous if improperly handled, and could inflict injury if attempts are made to handle it properly, if the user does not fully acquaint himself/herself with the Model Engine's operation procedures. The Model Engine may cause burns to the user, or the user's assistant, particularly in the start-up procedure, and Buyer agrees to use extreme caution. The Model Engine exhaust is extremely hot, and will burn someone or something placed directly behind the exhaust tube. Highly flammable liquid is used to operate the Model Engine, and it or its fumes will ignite easily and flare up rapidly. The Model Engine itself remains extremely hot, after it is shut off, and requires a cooling down period. Improper use of the Model Engine, or failure to follow Academy of Model Aeronautics ("AMA") guidelines and rules will result in injury to the user, the user's assistant, or bystanders. Operation of the Model Engine in any location other than an approved location, and under safe circumstances could lead to injury to bystanders. A risk exists from explosion, in the event of tampering, modifications leading to over-speed or extreme metal fatigue.
- (b) Buyer's Obligation to Become Fully Acquainted With Operation Procedure. Buyer acknowledges receipt of operating instructions for the Model Engine which depicts its handling and operation. Buyer agrees to thoroughly acquaint himself/herself with these materials, and to require his/her assistant to become equally familiar with them. Buyer expressly agrees not to allow any person to assist in the start-up procedure of the Model Engine, who has not become thoroughly familiar with these materials.
- (c) Agreement to Use Qualified Assistant in Start-Up Procedure. Buyer acknowledges that the start-up procedure for the Model Engine cannot be safely done, without an assistant. Buyer expressly agrees to use an assistant, who is thoroughly familiar with the Model Engine and its operation as set forth above, on each occasion when the Model Engine is started up.
- (d) Warning to Bystanders. Buyer acknowledges that injury or burns to bystanders could occur, during the start-up procedure or when operating the Model Engine. Buyer expressly agrees to take all steps necessary to assure that no bystander will be in a position to receive injuries during the start-up procedure, or while the Model Engine is running.
3. Full Assumption of Liability; Waiver and Release of Ultimate-Jets. Buyer assumes all risk of injury, harm and damage, of every nature whatsoever, to himself/herself and his/her property. Buyer fully and completely waives and releases any and all claims which he/she might have at any time arising out of the purchase, handling, or operation of the Model Engine. This assumption, waiver and release is complete, full, and comprehensive.
- (a) Release Even If Ultimate-Jets Is Negligent. The waiver and release contained herein releases Ultimate-Jets from all conduct, no matter how it could be characterized or alleged. Ultimate-Jets shall not be liable for its own negligence, whether active, passive, primary, or secondary. Ultimate-Jets shall not be liable for its sole negligence. Ultimate-Jets shall not be liable for its willful misconduct. Ultimate-Jets shall not be liable based on any theory in strict liability in tort. Ultimate-Jets shall not be liable for any alleged breach of warranty, whether express or implied, of any nature whatsoever, whether a warranty of fitness for a particular use, merchantability, or otherwise. There is no warranty of merchantability; there is no warranty of fitness for a particular purpose; and there are no warranties which extend beyond the description on the face hereof or Ultimate-Jets's One Year Limited Warranty.
- (b) Waiver Effective for All Time. The waiver and release contained herein is effective, without regard to the passage of time. It is effective indefinitely. It will not be changed by any modification to the Model Engine, to any later sale, or other changes in circumstances.
- (c) Release Extends to Ultimate-Jets and All Its Associates. The waiver and release contained herein protects Ultimate-Jets, and all of its employees, officers, principals, owners, designers, and agents ("Associates").
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
4. No Modifications to Model Engine. Buyer agrees to make no modifications of any kind to the Model Engine. This Agreement pertains to the entire life of the Model Engine.
5. Sale By Buyer to Other Party. Buyer agrees to fully inform any person to whom he/she sells or transfers the Model Engine, concerning the handling, use, and operation of the Model Engine, and agrees to give all operating instructions to such person, at or before the time of sale or transfer. The indemnity and hold harmless agreement contained in Paragraph 3 continues in effect, following such sale or transfer.
6. Severability. In the event any clause, provision, or term of this Agreement is held to be ineffective, void or otherwise unenforceable for any reason, that clause, provision, or term shall be severed from this Agreement, and the Agreement shall otherwise remain binding and effective. If any portion of Paragraph 3 is found to be unenforceable, then the parties agree that the fullest and most complete waiver and release which is permitted by law, shall be effective.
7. Texas Law Applicable. The law of the State of Texas shall apply to any and all controversies which may arise out of or relate to this Agreement, the sale of the Model Engine, or its ownership, use, or operation.
8. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, OR THE OWNERSHIP, USE, OR OPERATION OF THE MODEL ENGINE, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICE/ENDISPUTE, AT ITS LOS ANGELES OFFICE, UNDER ITS THEN APPLICABLE RULES AND PROCEDURES. THE ARBITRATION SHALL BE BINDING, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. BUYER EXPRESSLY ACKNOWLEDGES AND WAIVES THE RIGHT TO FILE A LAWSUIT IN A COURT OF LAW, TO HAVE THE MATTER DETERMINED BY A JURY, AND TO APPEAL. BUYER'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. THE PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF ALL MATTERS TO NEUTRAL ARBITRATION.
9. This Document Is the Full Expression of Parties' Agreement. This Agreement contains the full and complete agreement of the parties. There is no representation, term, or provision which is outside this Agreement. Any and all discussions, oral agreements, and representations are merged into this single written Agreement. This Agreement cannot be modified or amended in any way, except by written Amendment, signed by the parties.
10. Paragraph Headings Not Controlling. The heading to any paragraph, or subparagraph of this Agreement, shall not be dispositive, but may be used to interpret the parties' intentions.
11. No Interpretation of Agreement Against Either Party. Buyer understands and expressly acknowledges that he/she has the right to have an attorney read and review this Agreement, before execution. This Agreement shall not be interpreted against either party, but shall be interpreted as if it was drafted mutually by the parties.
12. If the Buyer is not prepared to fully accept the PURCHASE AGREEMENT, FULL ASSUMPTION OF LIABILITY AND INDEMNITY AGREEMENT, the Buyer is advised to return this Model Engine immediately in new and unused condition to the place of purchase.
Ultimate-Jets, LLC One Year Limited Warranty
Ultimate-Jets, LLC, a Limited Liability Company, ("Ultimate-Jets") warrants that this MINIATURE TURBOJET ENGINE for model aircraft, cars or boats ("Model Engine") enclosed with this warranty statement is free from defects in materials and workmanship during normal usage, according to the following terms and conditions.
1. The limited warranty extends to the original purchaser ("Buyer") of the Model Engine and is not assignable or transferable to any subsequent purchaser / end-user.
2. Warranty coverage begins the day you buy the Model Engine. For 2 years or 40 hours of measured use by the Electronic Control Unit (which ever comes first), all parts except for batteries, electric motors, glow plug and frictional materials will be repaired or replaced free of charge. All parts, including repaired and replaced parts are covered for the original warranty period. When the warranty on the Model Engine expires, the warranty on all replaced and repaired parts also expires.
3. Buyer must fully accept all conditions of the PURCHASE AGREEMENT, FULL ASSUMPTION OF LIABILITY AND INDEMNITY AGREEMENT.
4. The limited warranty extends only to Buyers who purchased the Model Engine in the United States and includes this written warranty statement.
5. During the limited warranty period, Ultimate-Jets will repair or replace, at Ultimate-Jets option, any defective parts with new or factory rebuilt replacement items if such repair or replacement is needed because of Model Engine malfunction or failure during normal usage. No charge will be made to the Buyer for any such parts. Ultimate-Jets will also pay for the labor charges incurred by Ultimate-Jets in repairing or replacing the defective parts. The limited warranty does not cover defects in appearance. Ultimate-Jets shall not be liable for any other losses or damages.
6. Upon request from Ultimate-Jets, the Buyer must prove the date of the original purchase of the Model Engine by a dated bill of sale or dated itemized receipt.
7. The Buyer must bear the cost of shipping to Ultimate-Jets in Cypress, Texas. Ultimate-Jets shall bear the cost of shipping the Model Engine back to the Buyer, within the continental United States, after the completion of service under this limited warranty. The Buyer must pay for any other shipping charges.
8. The Buyer shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable
- (a) The Model Engine has been subject to abnormal use, abnormal conditions, improper storage, unauthorized modifications, unauthorized repair, misuse, neglect, abuse, accident, alteration, improper installation or other acts which are not the fault of Ultimate-Jets, including damage caused by shipping.
- (b) The Model Engine has been damaged from external causes such as crash damage, foreign object damage, weather, Act of God, improper electrical connections, or connections to other products not recommend for interconnection by Ultimate-Jets.
- (c) The Model Engine is operated for commercial or institutional use.
- (d) The Model Engine serial number has been removed, defaced or altered.
9. If a problem develops during the limited warranty period, the Buyer shall take the following step-by-step procedure:
- (a) The Buyer shall ship the Model Engine prepaid and insured to Ultimate-Jets.
- (b) The Buyer shall include a return address, daytime phone number and / or FAX number, complete description of the problem and proof of purchase.
- (c) The Buyer will be billed for any parts or labor charges not covered by this limited warranty.
- (d) If the Model Engine is returned to Ultimate-Jets during the limited warranty period, but the problem with the Model Engine is not covered under the terms and conditions of this limited warranty, the Buyer will be notified and given an estimate of the charges the Buyer must pay to have the Model Engine repaired, with all shipping charges billed to the Buyer. If the estimate is refused, the Model Engine will be returned freight collect. If the Model Engine is returned to Ultimate-Jets after the expiration of the limited warranty period, Ultimate-Jets normal service policies shall apply and the Buyer will be responsible for all shipping charges.
10. The Model Engine consists of newly assembled equipment that may contain used components that have been reprocessed to allow machine compliance with Model Engine performance and reliability specifications.
11. Ultimate-Jets shall not be liable for delay in rendering service under the limited warranty, or loss of use during the period that the Model Engine is being repaired.
12. Ultimate-Jets neither assumes nor authorizes any other person or entity to assume for it any other obligation or liability beyond that is expressly provided for in this limited warranty.
13. This is the entire warranty between Ultimate-Jets and the Buyer, and supersedes all prior and contemporaneous agreements or understandings, oral or written, and all communications relating to the Model Engine, and no representation, promise or condition not contained herein shall modify these terms.
14. If the Buyer is not prepared to fully accept the liability associated with the use of this Model Engine, the Buyer is advised to return this Model Engine immediately in new and unused condition to the place of purchase.
15. This limited warranty allocates the risk of failure of the Model Engine between the Buyer and Ultimate-Jets. The allocation is recognized by the Buyer and is reflected in the purchase price of the Model Engine.