(b) THIS WARRANTY DOES NOT APPLY UNLESS THE SELLER’S PRODUCTS ARE: (I)
USED IN DOMESTIC PLUMBING APPLICATIONS; (II) INSTALLED BY A LICENSED
CONTRACTOR, PLUMBER OR QUALIFIED EQUIPMENT INSTALLATION
PROFESSIONAL; AND (III) INSTALLED AND OPERATED IN ACCORDANCE WITH
PUBLISHED AQUASURE DRINKING WATER SYSTEM SPECIFICATIONS.
(c) All costs and expenses, including freight charges, customs duties, and insurance
incurred in returning the goods to the Seller’s premises in accordance with this
provision shall be paid by the Buyer. The benefit of this warranty shall not be assignable
by the Buyer.
(d) THIS WARRANTY DOES NOT EXTEND TO ANY GOODS NOT MANUFACTURED
BY THE SELLER EVEN THOUGH SUPPLIED BY THE SELLER NOR DOES IT
EXTEND TO ANY SECOND-HAND OR RECONDITIONED GOODS NOR DOES IT
EXTEND TO COMPONENTS MANUFACTURED BY THE SELLER BUT INSTALLED,
ATTACHED OR WELDED BY THE BUYER OR HIS CUSTOMER ON EQUIPMENT
NOT MANUFACTURED BY THE SELLER. GOODS NOT MANUFACTURED BY THE
SELLER CARRY ONLY THE WARRANTY (IF ANY) OF THEIR MAKERS AND THE
BUYER IS ENTITLED TO THE BENEFIT THEREOF ONLY SO FAR AS THE SELLER
HAS THE POWER TO TRANSFER IT.
(e) THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WARRANTY
PERTAINING TO ITEMS PROVIDED HEREUNDER; THE SELLER MAKES NO
OTHER WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND
WHATSOEVER. ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO
MERCHANTABILITY AND FITNESS FOR PURPOSE, WHETHER EXPRESSED OR
IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF
DEALING, ARE HEREBY DISCLAIMED.
(f) NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES
WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR PARTIALLY TO THE
BUYER’S DESIGNS OR SPECIFICATIONS.
12. Limited Remedy.
THE SELLER’S LIABILITY ARISING FROM OR IN ANY WAY CONNECTED WITH
THE ITEMS SOLD OR THIS AGREEMENT SHALL BE LIMITED EXCLUSIVELY TO
REPAIR OR REPLACEMENT OF THE ITEMS SOLD. IN NO EVENT SHALL THE
SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE
WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS ARISING
FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY ITEMS
SOLD, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS
OR IMPLIED WARRANTY, OR IN TORT, INCLUDING WITHOUT LIMITATION,
NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY. IN NO EVENT
SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY OTHER ENTITY FOR
MORE THAN THE INVOICE PRICE RECEIVED BY THE SELLER FOR ANY NON-
CONFORMING PRODUCTS. THE SELLER SHALL NOT BE LIABLE TO THE BUYER
OR ANY OTHER ENTITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR
ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY, SPECIAL, OR OTHER DAMAGES OF ANY KIND, INCLUDING
WITHOUT LIMITATION THE COST OF PROCUREMENT OF SUBSTITUTE GOODS,
THE LOSS OF PROFITS, PRODUCTS, OR PRODUCTION, OR THE INTERRUPTION
OF BUSINESS, HOWEVER CAUSED. THE SELLER SHALL NOT BE LIABLE TO THE
BUYER OR ANY OTHER ENTITY ON ANY THEORY OF LIABILITY INCLUDING
WITHOUT LIMITATION BREACH OF CONTRACT OR EXPRESS OR IMPLIED
WARRANTY, TORT, NEGLIGENCE, FAILURE TO WARN, OR STRICT LIABILITY, AND
WHETHER OR NOT THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE
LIABILITY OF THE SELLER ARISING OUT OF THE SALE OF PRODUCTS TO THE
BUYER WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER
THEORY OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND
NOTWITHSTANDING THE PROVISIONS OF ANY OTHER AGREEMENT BETWEEN
THE SELLER AND THE BUYER.
13. Indemnity for Infringement of Intellectual Property Rights.
(a) The Buyer shall defend and indemnify the Seller against all actions, claims,
demands, penalties and costs by third parties in tort, or for infringement, or alleged
infringement, of patents, trademarks, copyrights, trade dress, trade secret or other
rights of any third party resulting from the goods manufactured in accordance with
the Buyer’s specifications or based on any information provided by the Buyer. The
Buyer will defend any action against the Seller for title, patent, trademark, copyright
infringement, or other claimed by a third party at the Buyer’s sole cost and expense.
(b) The Seller shall have no liability for infringement of any patents, trademarks,
copyrights, trade dress, trade secrets or similar rights except as provided in this
provision. The Seller will defend and indemnify the Buyer against allegations of
infringement of patents, trademarks, copyrights, trade dress and trade secrets
(“Intellectual Property Rights”). The Seller will defend at its expense and will pay
the cost of any settlement or damages awarded in an action brought against the
Buyer based on an allegation that an item sold pursuant to this contract infringes
the Intellectual Property Rights of a third party. The Seller’s obligation to defend
and indemnify the Buyer is contingent on the Buyer notifying the Seller within 10
days after sole control over the defense of any allegations or actions, including all
negotiations for settlement or compromise. If an item sold hereunder is subject to a
claim that it infringes the Intellectual Property Rights of a third party, the Seller may, at
its sole expense and option, procure for the Buyer the right to continue using said item,
replace or modify said item so as to make it non-infringing, or offer to accept return of
said item and return the purchase price less a reasonable allowance for depreciation.
Notwithstanding the foregoing, the Seller shall have no liability for claims of
infringement based on information provided by Buyer, or directed to items delivered
hereunder for which the designs are specified in combination or use in a system of any
item sold hereunder. The foregoing in this provision shall constitute the Seller’s sole
and exclusive liability and the Buyer’s sole and exclusive remedy for infringement of
Intellectual Property Rights.
14. Waiver.
The Seller’s rights shall not be affected or restricted by any indulgence or forbearance
granted to the Buyer. No waiver by the Seller of any breach shall operate as a waiver
of any later breach.
15. Force Majeure.
The Seller shall be excused from performing any of its obligations under this Agreement
which are prevented or delayed by any occurrence not within the reasonable control
of the Seller, including but not limited to, accidents, acts of God, destruction or damage
to the goods or the Seller’s manufacturing plant, delays or failures in delivery of
carriers or suppliers, shortages of materials, strikes or other labor matters, floods,
earthquakes, fire, riots, explosions, or any regulations, rules, ordinances or orders of
any governmental authority, federal, state or local, whether such cause exists at the
date of the order or not.
16. Buyer’s Representation of Solvency.
The Buyer hereby represents that as of the signing of this Agreement it was not
insolvent within the meaning of the Uniform Commercial Code or any Bankruptcy
Laws.
17. Assignment and Delegation.
The rights and obligations of the parties under this Agreement may not be assigned or
delegated, except on the express written consent of the other party to the assignment
or delegation.
18. Integration.
The rights and obligations of the parties and the terms and conditions set forth
herein, together with any amendments, modifications and any different terms and
conditions expressly accepted by the Seller in writing, shall constitute a complete and
exclusive statement of the terms of this Agreement. This Agreement supersedes not
only all prior agreements, but also oral agreements made contemporaneously with
the execution of this Agreement. All such materials may not be used to supplement,
explain, or contradict the terms of this Agreement
19. Severability.
If any of these conditions or any part thereof purports to exclude or restrict or limit
any liability and such exclusion or restriction or limitation is prohibited or rendered
void or unenforceable by any legislation to which it is subject, or is itself prohibited
or rendered void or unenforceable by any legislation to which it is subject, then the
exclusion, restriction or limitation on the condition or part thereof in question shall be
so prohibited or rendered void or unenforceable and the validity or enforceability of
any other part of these provisions shall not thereby be affected.
20. Governing Law/Limitation on Actions.
The terms, conditions, rights, and obligations under this Agreement shall be construed
under the laws of the State of California, without regard to principles of conflicts of
laws. No actions arising out of the sale of the items sold hereunder or this Agreement
may be brought by the Buyer more than two (2) years after such cause of action
accrues.
