Warranty
1. EXTENT OF WARRANTY
1.1 Warranty: The words “warranty” and “warrants” are defined, respectively, as a
commitment and an expression of such commitment that a certain fact regarding the
subject of the Agreement is, or shall be, as it is expressly declared or promised to be.
The Seller warrants to the Buyer that the equipment sold by the Seller will be free from
defects in material, workmanship and title. Seller’s warranty applies only to defects in
parts and workmanship and not to damage incurred in shipping or handling, or damage
due to causes beyond the control of the seller such as, without limitation, lightning, fire,
flood, wind, earthquake, excessive voltage, mechanical shock, water damage, or
damage arising out of abuse, alteration or improper application of the equipment.
1.2 Technical Documentation Correct: The technical documentation supplied
by the Seller in conjunction with the equipment shall be complete, clear and correct in
order to meet the requirements of the installation, operation and maintenance of the
equipment.
1.3 No Warranty re Third Party Suppliers: In respect of any goods or
equipment supplied hereunder which are produced by others, the Seller gives no
warranty whatsoever, and the warranty given by such other producers, if any, shall
apply.
1.4 No Warranty re Buyer’s Specifications and Designs: Claims arising from
or related to specifications, drawings and designs supplied by the Buyer shall be the
sole responsibility and expense of the Buyer, and the Buyer shall hold harmless and
reimburse the Seller for any loss, cost or damage, action or cause of action arising out
of and by virtue of such a claim.
1.5 Warranty Conditional: The obligations set forth in Seller’s warranty are
conditional upon proper storage, installation (except where installation is supervised by
or performed by the Seller), use, maintenance and compliance with any applicable
recommendations of the Seller.
1.6 Warranty for Original Buyer Only: This warranty shall apply to the original
Buyer only.
1.7 No Warranty for Goods or Equipment Normally Consumed in
Operation: The above warranty does not apply to goods or equipment normally
consumed in operation or which have a normal life inherently shorter than twelve (12)
months.
2. DURATION OF WARRANTY
2.1 Warranty Period: The duration of Seller’s warranty shall be twelve (12)
months after the date of readiness for delivery of the equipment to the Buyer or upon
successful commissioning by Seller. If the United Nations Convention on Contracts for
the International Sale of Goods applies, the parties agree that, notwithstanding Article
39(2) thereof, the Buyer loses the right to rely on a lack of conformity of the equipment
if the Buyer does not give the Seller notice thereof at the latest within a period of six (6)
months from the date on which the equipment was actually handed over to the Buyer.
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3. NOTICE REQUIRED TO FILE WARRANTY CLAIM
3.1
Notice of Defect to be Given to Seller: Seller’s obligations under its
warranty are conditional upon the Buyer promptly notifying the Seller of any defect and,
if required, promptly making the equipment available for correction. Buyer shall give
notice to Seller of such claimed defect within fourteen (14) days after Buyer has
discovered it or ought to have discovered it. In the event this contract is subject to the
U.N. Convention on the International Sale of Goods, the parties agree that this time
limit for giving notice shall apply notwithstanding Article 39(1) said Convention. The
Seller shall be given reasonable opportunity to investigate all claims and no equipment
shall be returned to the Seller until after inspection and approval by the Seller and
receipt by the Buyer of written shipping instructions from the Seller.
4. IDENTIFICATION OF AGREED UPON REMEDIES FOR A VALID WARRANTY
CLAIM
4.1 Seller to Repair, Replace or Grant Allowance: The Seller’s obligations
under its warranty shall be limited to repairing or replacing the equipment (at the
Seller’s option), EXW Seller’s plant, [Red Deer, Alberta, Canada], or, at the Seller’s
option, effecting repairs at the Buyer’s site or granting a reasonable allowance on
account of the nonconformity.
4.2 Price Adjustment in the Event Warranty cannot be Fulfilled: If a failure
to meet the foregoing warranty, except as to title, occurs within one year from the date
of shipment or within one year after completion of installation (if the latter is supervised
by or performed by the Seller and provided that completion of installation is not
unreasonably delayed by the Buyer) then the Buyer shall not be entitled to terminate or
rescind this Agreement but the Seller shall correct any such failure by either, at its
option, repairing any defective or damaged part or parts of the equipment or, by making
available at EXW Seller’s plant or other point of shipment, any necessary repaired or
replacement part or parts. Where a failure cannot be corrected by the Seller’s
reasonable efforts, the parties shall negotiate an equitable adjustment in price. In the
event of a failure to meet the warranty as to title, the Buyer shall not be entitled to elect
to terminate or rescind this Agreement but the Seller shall correct such failure. The
foregoing sets out the Seller’s sole obligation for failure to comply with the foregoing
warranty. The Seller shall have no obligation whatsoever and the Buyer shall have no
right to make a claim against the Seller in respect of the failure to meet the foregoing
warranty which appears after the one year period set out in this clause, except as to
title.
4.3 No Right to Reduction or Withholding Due to Nonconformity: All
payments due to the Seller hereunder shall be made in accordance with this
Agreement, and shall not be subject to reduction or withholding for any cause including,
but not limited to, claims by the Buyer for damages or reduction in price as the result of
alleged nonconformity of the equipment or other failure of the Seller to perform in
accordance herewith. If this agreement is subject to the U.N Convention on the Sale of
Goods, the parties agree to exclude the application of Article 50 thereof.
4.4 Liability of Seller Limited to Price of Equipment: The total liability of the
Seller (including its affiliates and subcontractors) on any claim, whether in contract, tort
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(including negligence) or otherwise, arising out of, connected with, or resulting from the
manufacture, sale, delivery, resale, repair, replacement or use of any goods or
equipment shall not exceed the price allocable to the goods or equipment which give
rise to the claim.
5. NEGATION CLAUSE
5.1 Negation of Other Warranties and of Damage Claims: The Seller, for
itself, its agents, contractors, employees, providers, and for any parent, affiliate or
subsidiary of the Seller, expressly disclaims all warranties, express or implied other than
those contained herein, including without limitation, of merchantability or fitness for a
particular purpose. In no event shall the Seller or the above identified persons or
corporations be responsible for any direct, indirect, special or consequential damages,
including without limitation loss of anticipated profits, loss of time or any other losses
incurred by the Buyer in connection with the purchase, installation, operation or failure
of the equipment. If the law applicable to this Agreement or to any claim against the
Seller or the above identified persons or corporations either limits or prohibits the
disclaimer of consequential damages, the limitations and disclaimers contained here
shall be to the greatest extent permitted by law.
5.2 Exclusion of Modification or Improper Use: The Buyer specifically
acknowledges that the equipment has been designed and manufactured for a particular
purpose. Any change, alteration or modification of any kind to the equipment, or any
use of the equipment for a purpose other than that for which it has been designed and
manufactured shall render this warranty immediately void. The Seller shall have no
obligations of any kind in respect of any such equipment.
5.3 Exclusion of Negligent Operation or Maintenance: The Buyer specifically
acknowledges that it has received or has been given the opportunity for training in
relation to operation and maintenance of the equipment.
The Buyer further
acknowledges that proper maintenance is essential for the operation of the equipment
and for ongoing safety. Any failure by the Buyer to maintain the equipment in
accordance with recommended practices, or failure to operate the equipment in
accordance with recommended practices shall render this warranty immediately void.
The Seller shall have no obligations of any kind in respect of any such equipment.
5.4 Limitation of Obligation as to Conformity of the Equipment: The parties
agree that the Seller undertakes no obligation with respect to the conformity of the
goods or equipment to the Agreement except as otherwise provided in this Agreement.
In particular, the parties agree to exclude all implied warranties, including the implied
warranties of merchantability and fitness for a particular purpose.
5.5 No Modification to Warranty: The foregoing warranty is the entire warranty
of the Seller. The Seller does not authorize any other person, purporting to act on its
behalf, to modify or to change this warranty, or any other warranty or liability concerning
the goods or equipment.
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