YOU MUST READ AND ACCEPT THE TERMS OF THIS DOCUMENT BEFORE INSTALLING, OPERATING, OR OTHERWISE USING ANY BOAT PROPELLER GUARD PRODUCT. THIS DOCUMENT RELEASES MANUFACTURER FROM CERTAIN LIABILITY TO YOU ARISING FROM SUCH USE OF THE BOAT PROPELLER GUARD™ PRODUCT.
Propeller Guard products are intended to reduce the dangers inherent to the use of propellers. No device can completely eliminate such risk. Any activity involving the use of propellers, any activity conducted in the proximity of propellers, and any modification to propellers or to components of boat propulsion will carry inherent risks, as will any boating activity or other waterborne recreational activity. The following disclosures are intended to inform users of Boat Propeller Guard products of which risks may be reduced or otherwise affected by use of the product. It is not possible to foresee every possible risk inherent to boating activities, and it is understood that this document cannot substitute for good judgment and safe conduct in boating and related activities.
In consideration for and as an express condition of installing, operating, or using any Boat Propeller Guard™ product, you (the “User”) acknowledge and agree to the provisions contained within this document.
Please review these terms carefully.
Warranties and Representations
The Boat Propeller Guard product is intended to reduce the incidence and severity of certain common injuries associated with propeller-driven boats. No product can completely eliminate such injuries, nor does the use of the Boat Propeller Guard product obviate or in any way reduce the User’s responsibility to operate any boat in a safe and reasonable manner. Nothing in this document shall be construed as a guarantee against damage, injury, or death from unsafe activity involving or in the vicinity of any boat or any component thereof. Nothing in this document shall be construed to reduce or obviate the User’s responsibility to operate any boat, motor, or propeller in a manner consistent with its associated product manual or other documents.
To induce the User to enter into agreement with the provisions given in this warning and disclosure statement, Boat Propeller Guard represents and promises the terms of the attached warranty for use of this product. The Company has taken all necessary action to authorize the execution, delivery, and performance of this agreement, and use of the product shall constitute an acceptance of the offer of
the attached warranty as well as the terms in this warning and disclosure document.
Proper Installation and Use of Product
1) The Boat Propeller Guard product should be installed according to the instructions included with the product. If an instruction booklet is lost or missing, copies are available at the manufacturer’s website, firstname.lastname@example.org. Failure to install the device properly can damage your boat, boat motor, propeller, or other component of the propulsion system.
Additional support can be found elsewhere:
a. At the manufacturer’s website in the form of videos demonstrating a proper
b. Via telephone with the manufacturer at 602-726-0751.
c. At any licensed boat mechanic, each listed at the manufacturer’s website.
2) Failure to properly install and inspect the product for defects shall constitute a waiver of all remedies for any and all damage, injury, or death which may occur while using the product. Any attempt by the User to install the product without the assistance of a licensed mechanic shall constitute a binding representation that the User possesses the necessary expertise to properly install and inspect the product.
3) At all times, the User should use the Boat Propeller Guard product in a manner consistent with the Installation Manual.
4) A properly functioning Boat Propeller Guard product includes a hinge which allows the aft-end cover flap of the product to move freely between a “closed” position (at rest) and an “open” position (under power). This hinge should be inspected before and after each use of the boat.
5) At all times, the User and any individuals in the vicinity of the Boat Propeller Guard product should exercise reasonable judgment in the safe use of the product; the User should ensure that any individual present at the User’s invitation practices such safe conduct. Safe conduct and safe use of the product include, but are not limited to, the following rules:
A- Neither the User nor any other individual should swim under any boat, nor approach the propeller or PropGuard™ product while the propeller is under power. No individual should attempt to place any object or any part of any person’s body inside of the Boat Propeller Guard product unless the propeller has been safely disabled for maintenance according to its manufacturer’s specifications. Neither the User nor any other individual should activate the propeller while any individual is in front of the boat, in proximity to the boat, or in proximity to the propeller or the PropGuard™
B- The User will not attempt to modify the PropGuard product in any way, except as directed in the Installation Manual.
C- The User, and any other individual present at the User’s invitation, shall at all times continue to abide by the same safety rules and restrictions recommended by the boat manufacturer, the propeller and motor manufacturer, and applicable State and Federal laws and regulations.
D- The User will not use the PropGuard product when it is damaged or appears to be damaged.
E- The User will ensure that no person is in front of, under, or in proximity to the boat before applying power to the propeller.
6) User agrees to indemnify and hold harmless the Company against any claims by any third party resulting from any use of this product which does not comport with the Installation Manual or with this document, including but not limited to any willful, reckless, or negligent use or misuse of the PropGuard product resulting in damage, injury, or death to any third party.
Notwithstanding any other express or implied statement contained within this document, any use of the PropGuard™ product which does not conform with the warnings herein or in the associated
product manual shall constitute a waiver of all claims and remedies against PropGuard for damages, injury, or death which may occur while using the product.
Maintenance, Recalls, and Product Warning Updates
The manufacturers of PropGuard continue to test the product for safety, performance, and reliability. As new information becomes known, such information will be periodically posted to the manufacturer’s website.
From time to time, the manufacturer may issue notices that action is required. Such action may include product upgrades, recalls, or general notices. The User agrees to promptly act in accordance with such instructions; failure to so act shall constitute improper use of the product and shall correspondingly reduce liability attributable to PropGuard™ to the extent that the User’s own negligent, reckless, knowing, or willful actions are a contributing factor to any subsequent damage, injury, or death occurring while the PropGuard product is in use.
The User agrees to the following:
1) The User shall inspect the PropGuard product before and after each use. If the User finds any damage, including ordinary wear and tear sufficiently advanced as to degrade performance, the User will refrain from using the PropGuard product until the User has sought and obtained maintenance, repair, refurbishment, or replacement of the component or product.
2) The User shall, from time to time, review the manufacturer’s website to determine whether any recall or other notice has been posted. If a recall or upgrade is recommended, the User will promptly comply with the posted directions thereto. Failure to comply with this term will waive all claims of damage for use of the product, including but not limited to damage to the propeller or boat, injury to any person, death of any person, or any other direct or indirect damages.
3) The User shall read all new product warnings as they become available and comport themselves accordingly when using or in proximity to the PropGuard product. Product warnings issued after the publication date of this document, when such later-issued warnings
contradict this document, are understood to represent that latest and best understanding of the risks associated with use of the PropGuard product and should be deemed controlling.
1) Notices. All notices under this Agreement shall be in writing and shall be given to the Party entitled thereto by personal service (including received confirmed facsimile), or by certified or registered mail, return receipt requested, or by recognized overnight courier service. All notices shall be deemed given upon the actual receipt thereof.
2) Validity of Agreement and Severability. The invalidity of any portion of this Agreement shall not affect the validity of the remainder hereof. In the event that any portion of this Agreement is found invalid or otherwise unenforceable, that portion shall be deemed as severed from this Agreement.
3) Titles and Captions. Article and section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
4) Person and Gender. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and the word “person” shall include a corporation, firm, partnership or other form of association.
5) Applicable Law. The terms and provisions of this Agreement and any dispute arising hereunder shall be governed by the laws of the State of Arizona. As the Company’s principal place of business is in Arizona, the Courts of the State of Arizona (including Maricopa County Superior Court), or if applicable, the District Court for the Federal District of Arizona, shall have the sole and exclusive jurisdiction in any case or controversy arising under this Agreement or by reason of this Agreement, and for this purpose each Party hereby expressly and irrevocably consents to the jurisdiction of such Courts.
6) Costs of Litigation. In any action between the parties arising from this Agreement or the subject matter to which it is addressed, the prevailing party shall be entitled to recover expenses, including reasonable attorney’s fees and costs, including expenses and fees of any appeals.
7) Including. Whenever the term “including” is used herein, it shall be construed to mean “including, without limitation.”
8) Integration. This Agreement is the final integration of the agreement of the parties with respect to the matters covered by it and supersedes any prior understanding or agreements, oral or written, with respect thereto.
9) Successors and Assigns. This Agreement shall be binding upon and insure to the benefit of the parties hereto, and their respective successors in interest and assigns, but in no event shall any party be relieved of its obligations hereunder without the express written consent of each other party.
10) Arbitration. In the event that a dispute arises between the Parties which is not or cannot be resolved, then the issue shall be resolved by a single arbitrator under the applicable Rules of Arbitration of the American Arbitration Association in Phoenix, Arizona.