The following are the Terms and Conditions appended to and fully incorporated into the Sales Agreement between BAGJUMP ACTION SPORTS GmbH, also defined as “Bagjump” or “Seller” or the “Company”, and the buyer (“Buyer”) of goods or services through any form of sale as between the parties hereto.
Bagjump develops, produces through engaging third-parties, and sells to arenas, amusement parks, ski and snowboard facilities, and other sport and leisure companies, and to individuals, products designed to avoid or to reduce the severity of injuries and other consequences that may occur as a natural consequence of some sports and leisure activities.Bagjump products can best fulfil their tasks safely when properly serviced, maintained and used, based on the Operations Manual (“OP Manual”), which is provided to and known to the Buyer. Since these products are regularly used in potentially life-threatening situations, a risk of injuries can never be excluded, and thereby the risks can only be minimized.
Nonetheless, even in the case of proper utilization of Bagjump’s products and services, the potential for serious, even fatal injuries cannot be excluded, and Buyer has knowledge of the considerable risks of using the Object of Purchase herein and agrees to utilize all of Bagjump’s products and services only for their intended use and under uninterrupted surveillance while in use, in order to minimize the risks as much as possible.
1. Acceptance of Controlling Terms and Conditions
Buyer agrees to the Terms and Conditions outlined hereunder with respect to the goods, services and information provided by or through Bagjump (“Object of Purchase” or “Objects of Purchase”). Together with these Terms and Conditions, the Sales Agreement constitutes the entire and only agreement between Bagjump and Buyer, and supersedes any and all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the Object of Purchase or Objects of Purchase provided by or through Bagjump, concerning the subject matter of this Sales Agreement. Buyer agrees to review these Terms and Conditions prior to purchasing anything, and purchase of a product or service from Bagjump shall be deemed to be acceptance of these Terms and Conditions and the Sales Agreement to which they are appended. Any terms and conditions proposed in Buyer’s offer, acceptance or in any acknowledgment, invoice, or other form of Buyer that add to, vary from, or conflict with the terms herein are hereby rejected, and shall be of no force or effect unless specifically agreed to in writing by Bagjump.
2. Single Transaction
The Sales Agreement is solely for the products or services provided thereunder and shall not be a recurring order. Any additional or repeat orders for products from the Bagjump shall be ordered under a separate Sales Agreement.
a) Where applicable, the Purchases Price stated in the Sales Agreement will be invoiced together with the then prevailing sales tax and/or the Austrian Value Added Tax, if any.
b) Banking fees that are charged for bank wires or for other cross-border transfers to the account of the Bagjump shall be entirely borne by the Buyer.
c) The Purchase Price is payable in two instalments unless otherwise agreed on specifically in writing:
i) The first partial payment is due and payable upon execution of the Sales Agreement. Only after receipt of this payment by the Bagjump, will it commence to produce the Object of Purchase. Accordingly, delays in payment may affect the delivery date.
ii) The second partial payment, in effect the remainder of the Purchase Price, shall be paid before Bagjump’s turning over the Object of Purchase to the Buyer from the facility of Bagjump, if not agreed differently. Only after receipt of this payment and thereby of the entire Purchase Price, is the Object of Purchase turned over to the Buyer or, respectively, to any assigned logistics enterprise.
iii) All payments are to be dispatched to the bank account of Bagjump as specified in the offer (grace period of 3 days), and all transfer fees are to be borne by the Buyer:
d) Should the Buyer default when paying an instalment, Bagjump may withdraw from the Sales Agreement after having previously set a grace period of 14 days in writing. Should the Object of Purchase have already been produced at that time, a cancellation fee of 60% of the entire Purchase Price becomes due and payable. Should the first partial payment not have been paid, and the Object of Purchase had not yet been completed, a cancellation fee of 20% of the Purchase Price becomes due and payable. In case of special orders regarding printing, color, shape etc. higher cancellation fees can also apply.
e) Setting-off of any claims of the Buyer against the Purchase Price, or the cancellation fees or other claims of the Bagjump shall not be permissible.
4. Delivery and Retention of Title
a) Buyer will be informed by Bagjump on the date that the Object of Purchase is completed for pick-up. The Object of Purchase may be picked up after the payment by Buyer of the remaining second payment, and such taking possession by Buyer shall constitute delivery.
b) Accordingly, delivery is completed when the goods are given to Buyer, its authorized personnel, or the carrier of Buyer’s choice and designation at the production plant or warehouse specified by Bagjump.
c) Risk of loss shall pass to Buyer upon delivery by Bagjump to Buyer or its carrier or other authorized personnel of Buyer.
d) Delays caused by production or transportation are permissible and do not provide grounds for withdrawal from the Sales Agreement by Buyer.
e) Bagjump retains title to all products that it ships until Buyer has performed all of the obligations owing to Bagjump under the Sales Agreement, and until the purchase price of the products has been fully paid. However, such products after delivery shall be at the risk and expense of the Buyer as to loss, destruction, or damage, and taxes and charges of every kind. Until such time as title passes, Buyer shall hold the Object of Purchase as fiduciary. Bagjump retains a security interest in the Object of Purchase, and in all accessions to, replacements of, and proceeds from the Object of Purchase, as security for the performance by the Buyer of all of the Buyer’s obligations arising under the Sales Agreement.
f) Until complete payment of the Purchase Price, the Buyer shall not be entitled to sell or encumber the Object of Purchase.
a) Bagjump hereby represents and warrants that the Object of Purchase provided hereunder:
(i) is free from defects in material workmanship and title at the time of transfer, and will be suitable for its intended purpose so long as Buyer utilizes the products in accordance with Bagjump‘s written instructions (“OP Manual”), which are incorporated by reference and made a part of the Sales Agreement. Except as otherwise provided herein, Bagjump expressly disclaims all warranties and conditions of any kind, whether express or implied to the fullest extent permitted by applicable law.
(ii) is merchantable for the intended purpose;
(iii) shall match the description, assortment, shipping unit, case pack, and quantity prescribed in the Sales Agreement;
(iv) have been produced and provided in accordance with Buyer’s desired specifications.
b) If the Object of Purchase does not meet the above warranties, Buyer shall immediately notify Bagjump in writing and Buyer shall refrain from using the product until it has been repaired in accordance with Bagjump s repair regulations in order to avoid any subsequent damage or injuries. Bagjump shall at its option, repair or replace defective products. If despite Bagjump’s reasonable efforts, a non-conforming Object of Purchase or component cannot be repaired or replaced, Bagjump shall refund or credit monies paid by Buyer for such non-conforming product. Warranty repair, or replacement by Bagjump shall not extend or renew the applicable warranty period.
c) Manufacturer’s warranty shall be given for a duration of 2 years. This covers all clear manufacturing or material defects. Wear on replaceable wear-and-tear items (such as air pillars, topsheets, etc.) as well as mechanical damages due to excessive force or use outside the intended purpose are subject to evaluation by Bagjump and may not be covered under warranty.
d) Buyer shall immediately notify Bagjump of any defects in the Object of Purchase in writing. In case of the occurrence of any defects, Buyer shall immediately stop using the Object of Purchase in order to avoid any injuries resulting therefrom. Only a product doubtlessly free of defects may be used by the Buyer. Buyer is not authorized to cure defects himself or to assign such cure to a third party without written approval by Bagjump. Shipping costs to transport the Object of Purchase to the workshop of Bagjump are initially paid by Buyer. In case of a justified warranty claim, the shipping costs back to the Buyer’s facility are paid by Bagjump. Should it be possible to repair the Object of Purchase immediately and on-site, the transportation costs and travel expenses for the personnel of Bagjump are paid by Buyer. In case the warranty claim is justified, then the transportation costs and travel expenses shall be paid by Bagjump. Should no warranty claim exist after inspection by Bagjump, all repair fees are charged to the Buyer. Upon arrival at the repair shop of Bagjump, a repair period of up to 6 weeks may be required.
e) Warranty shall be null and void and Bagjump shall be released from all liabilities as to any Object of Purchase in the event that Buyer performs any modifications to Bagjump product(s) using any components that are not manufactured or approved by Bagjump.
6. Bagjump’s Obligations
a) In the case of a self-installation by Buyer Bagjump shall provide Buyer an Installation Manual that gives written and visual instructions for every step of self-installing the Object of Purchase by Buyer.
b) Bagjump shall provide to Buyer an Operations Manual („OP Manual“) together with the Object of Purchase.
7. Buyer’s Obligations
a) Buyer confirms to have been informed by Bagjump, that injuries in connection with the Object of Purchase cannot be completely avoided and that due to the inherent nature of its use, a residual risk remains. Any use, including short-term use, or insignificantly altered use of the Object of Purchase without adequate compliance with the extensive security provisions provided by Bagjump may result in serious and severe injuries and may result even in fatalities.
b) With every purchase Bagjump provides an OP Manual that explains the correct mode of installation, the basic risk of using the product, and which details the ideal use conditions, as well as warnings with respect to the dangers of improper use. In order to prevent personal injuries, Bagjump furnishes information on how to handle, install, and maintain the products by way of its OP Manual. Buyer agrees to comply with Bagjump’s instructions on product safety and proper installation, operation, storage, and maintenance of Bagjump ‘s products contained therein. It is the sole responsibility of the Buyer of any product sold by Bagjump to obtain proper instruction from the OP Manual and to always act safely, prudently and with caution while using our products. The warranties will only remain in effect if Buyer, and through the Buyer comply with the instructions set forth in the OP Manual. Buyer agrees to review the OP Manual as well as all applicable product information mentioned therein, to refer all persons handling Bagjump’s products to such product information.
c) It is the sole responsibility of Buyer to exercise ordinary care, to use protection measures, and to manage and supervise the protection of the Object of Purchase from accidental damage, abuse, or misuse. Bagjump assumes no responsibility for a product that is damaged due to improper handling or inadequate handling of such product. We provide guidelines for protection of products once installation is complete.
Before each use
i) Buyer undertakes to verify that with respect to the Object of Purchase, no defects exist, and check the functional efficiency of the product, making proper notation in the log-book as prescribed in the OP Manual. Buyer agrees not to use the Object of Purchase should only the slightest defect be found during daily checks or, respectively, should there be the slightest doubt concerning freedom from defects.
ii) The location of use has to be checked for its suitability before each use, in compliance with the guidelines contained in the OP Manual.
iii) Buyer agrees to service the Object of Purchase at regular intervals. Details are contained in the OP Manual.
iv) The continuous electricity supply of the blowers shall be regularly checked in order to avoid a decrease in pressure. The hardness or respectively the softness of the Object of Purchase may be set, using the blowers and the air outlet valves. Buyer shall assure that the softness is correctly adjusted and that this is maintained over a period of three minutes in order to avoid fluctuations, before the Object of Purchase is used. The setting of the softness may require repeated manipulation by trained staff and readjustments may be necessary. The softness setting of the product may be taken from the OP-Manual and is explained in detail during the product training. During the operation, the product and its characteristics, electricity supply and similar factors as outlined in the OP Manual need to be checked and safeguarded.
v) The maximum drop height into the Object of Purchase as well as the age and weight restrictions of its users must be taken from the OP-Manual. Non-compliance with these restrictions may increase the risk of serious injuries and death. Any industry or local standard needs to be followed- even if OP Manual states a higher fall height.
d) Buyer will comply with all applicable laws and regulations including, without limitation, all applicable laws and regulations of the United States of America, and the state, county and city in which the Object of Purchase is used, as pertaining to such products.
e) Buyer shall furnish visible signage within 5 feet of where the Object of Purchase is installed, advising its guests that there are inherent and other risks associated with the use of or participation in or on any recreational facilities located at Buyer’s site. Each guest accepts the inherent and other risks associated with the use of or participation in or on any recreational facilities located at the site, as well all other risks, all risks of which an ordinary prudent person is or should be aware and all risks of which the guest is warned pursuant to these Terms and Conditions, other on-site rules and regulations, other posted warnings, directions and instructions and site-operator warnings, directions and instructions. In furtherance and not in limitation of the foregoing, each guest acknowledges and agrees to have read, understood and accepted, and to be bound hereby.
8. Limitation of Liability
a) EXCEPT FOR THE WARRANTIES EXPRESSED IN THIS AGREEMENT, BAGJUMP DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW.
b) IN NO EVENT SHALL BAGJUMP BE LIABLE TO ANY BUYER OF THE PRODUCT OR ANY OTHER PERSON, REGARDLESS OF THE FORM OF ACTION, FOR ANY INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES OR LOST PROFITS, OF ANY NATURE WHATSOEVER. UNDER NO CIRCUMSTANCES SHALL BAGJUMP’S LIABILITY ARISING FROM OR RELATING TO THE PURCHASE OF THE OBJECT OF PURCHASE EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE FOR THE PRODUCTS AND/OR SERVICES ORDERED HEREUNDER.
c) Liability is specifically disclaimed for consequential damages. Consequential damages are losses that are suffered by the BUYER or other third parties as a result of the failure of a BAGJUMP product that was incorrectly installed by any contractor or any other person or for any other reason other than design or manufacturing. These kinds of losses can include physical injury or death and can include damage to real or personal property.
d) BAGJUMP shall not be liable for advice or assistance that is not required for the scope OF work under this SALES AGREEMENT.
During the Term of the Sales Agreement to which these Terms and Conditions are appended, and continuing after the expiration or termination thereof, Buyer shall indemnify Bagjump and its subsidiaries and affiliates, and the shareholders, officers, directors, employees and agents and attorneys of each of the foregoing, and the successors and assigns of each of the foregoing (the “Bagjump Related Parties”), and shall hold the Bagjump Related Parties harmless from any loss, liability, damage, cost or expense, arising out of any claims or suits which may be brought or made against any Bagjump Related Party, by any third party, for personal injuries, wrongful death, property damage, infringement of intellectual property rights or any other cause or action, based upon, arising out of, or otherwise attributable to: (i) any breach or violation of this Sales Agreement by Buyer including any noncompliance with or breach of any of the Buyer’s Obligations set forth and enumerated in Paragraph 7 of these Terms and Conditions; (ii) any use of the Object of Purchase other than in accordance with the provisions of the Terms and Conditions appended to this Sales Agreement; (iii) any breach of any duty, failure to perform, or any alleged defect (whether obvious or hidden) in or use of, any product sold, or in any athletic facility, ride or attraction, or connected to any other service, at the Buyer’s site; (iv) any injury to persons (including, without limitation, bodily injury or death) or to property, arising out of or in connection with the Buyer’s site, or any of Buyer’ activities or operations relating to the athletic facility, ride or attraction, that is the purpose of the Buyer’s site; (v) Buyer’s non-compliance with any applicable federal, state or local laws or with any other applicable regulations; or (vi) any infringement or breach of any copyright, design, trade name, trade mark, service mark, patent or other proprietary or equitable right of any person or entity, or any libel or invasion of the right of privacy, publicity or other proprietary or equitable right of any person, in connection with the athletic facility, ride or attraction, that is the purpose of Buyer’s site (vii) Buyer’s construction or operation of the athletic facility, ride or attraction, that is the purpose of Buyer’s site, including without limitation, any rides, attractions, ski slopes or other leisure or recreational facilities. For avoidance of ambiguity, such indemnification by and from the Buyer shall extend to and include the Bagjump Related Parties’ legal fees and court costs, court or arbitration awards or judgments, and any other expenses or costs incurred by the Bagjump Related Parties by reason of claims, extrajudicial defense, or mediation, arbitration or judicial disputes, brought by any third party or parties, in which the Bagjump Related Parties become in any way involved as a result of Buyer’s use and/or operation of the Object of Purchase or Objects of Purchase, whether at Buyer’s place of business or at any other location at which Buyer uses or operates the Object or Objects of Purchase.
10. Termination of Bagjump’s Obligations Upon Resale
a) Each Object of Purchase is custom-built for the Buyer, and the installation and maintenance specifications as well as safety and precautionary measures differ as to every customer’s individual needs and setting and desired applications and use.
As such, Bagjump’s sale of the Object of Purchase is a transaction contemplated solely as between Bagjump and Buyer, and in the event that Buyer causes a change of ownership or control of the Object of Purchase to any third party, through re-sale, lease, offset for cancellation of an obligation, gift, or any other means that results in change of ownership or control from Buyer to a third party, there is no further obligation as from Bagjump to any third party, including but not limited to the new purchaser or its affiliates, employees, patrons or customers, and all warranties, guarantees, and other promised performance or specified obligations on the part of Bagjump shall cease therewith.
b) In addition to the foregoing, in the event that Buyer allows a change of ownership and control and claims are made by third parties that include the Bagjump Related Parties in any capacity, Buyer shall indemnify the Bagjump Related Parties and shall defend and hold harmless the Bagjump Related Parties, at no cost or expense to them whatsoever, as more fully described in Paragraph 9 of this Agreement.
11. Governing Law
All questions with respect to the construction of this Agreement, and the rights and liabilities of the parties to this Agreement, shall be governed by the laws of the United States of America and the State of California.
Any dispute or portion thereof, or any claim for a particular form of relief, not otherwise precluded by any other provision of this Agreement, may be heard or litigated solely and exclusively in the United States District Court for the Central District of California, Western Division. The specific matter or request for remedy in question shall be resolved by the court, sitting without a jury, and the parties hereby irrevocably waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action or other proceeding brought by any party against any other party with respect to any matter arising out of, or in any way connected with or related to, this Agreement or any portion thereof, whether based upon contractual, statutory, tortious or other theories of liability.
12. No Partnership
This Agreement does not constitute and shall not be construed to constitute a partnership or joint venture between Bagjump and Buyer. Neither party shall have any right nor authority to obligate or bind the other party in any manner whatsoever, and nothing herein shall give, or is intended to give, any rights of any kind to any third persons.
The currency shall be US Dollars.
14. Language and Interpretation
The governing language to be used for purposes of the interpretation and meaning of these Terms and Conditions shall be English.
15. Paragraph Headings
Paragraph headings are for the convenience of the parties only and shall have no legal effect whatsoever.
16. Effect of Waiver
The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreements by the other party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
17. Partial Invalidity
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way; provided that the continuation hereof shall not be inequitable to either party hereto.