I. Limited Warranty
1. Limited Warranty. Petroleum Analyzer Company, L.P. (“PAC”) offers a limited warranty on each of its products against failure due to defects in material and workmanship for a period ending the earlier of (i) eighteen (18) months from the date of the invoice relating to the sale of the product and (ii) twelve (12) months from the date of installation of the product (collectively, the “Initial Warranty”). During the Initial Warranty, PAC offers a limited warranty against failure due to defects in material and workmanship on each part of a product repaired or replaced by an authorized service person for a period ending the later of (a) the remaining term of the Initial Warranty of the product and (b) ninety (90) days from the date of such repair or replacement. After expiration of the Initial Warranty, PAC offers a limited warranty against failure due to defects in material and workmanship on each part of a product repaired or replaced by an authorized service person for a period ending ninety (90) days from the date of such repair or replacement. PAC further offers a limited warranty that the products and parts it sells will conform to PAC’s written specifications therefor. The foregoing limited warranties cover parts and labor only and PAC does not warrant and will not reimburse the buyer of its products (“Buyer”) for any costs relating to the access by service persons of PAC to the product at issue. The foregoing limited warranties cover only the repair or replacement of defective parts and such determination will be in the sole discretion of PAC. In its sole discretion, PAC may make repairs or replacements under these limited warranties with either new or refurbished parts. To the extent Buyer’s product cannot be remedied under these limited warranties through repair or replacement of parts, Buyer may return the product for a refund of the purchase price, less a reasonable reduction in such purchase price equal to the depreciation expense incurred by Buyer relating to such product. The limited warranties of this Section I.1. are further subject to those warranty exclusions set forth below in Section I.2.
2. Limited Warranty Exclusions. Excluding the warranties provided for in Section I.1., PAC provides all products to Buyer “as-is,” without any other warranty of any kind. PAC disclaims any and all express or implied warranties of merchantability, fitness for a particular purpose and non-infringement of the intellectual property of others. PAC makes no warranty, express or implied, as to the design, sale, installation or use of its products. PAC’s warranties will not be enlarged by, nor will any obligation or liability of PAC arise due to PAC providing technical advice, facilities or service in connection with any product. There is no warranty by PAC with respect to any product’s: (i) uninterrupted or error-free operation; (ii) actual performance, other than the product’s capability to meet PAC’s specifications therefor; (iii) removal or installation from a worksite or process; (iv) electronic components or associated accessories (including without limitation circuit boards and integrated circuits); (v) maintenance (including without limitation gasket and seal replacements, adjustments, minor repairs and other inspection requirements, preventative or otherwise); (vi) use under inappropriate conditions or not in accordance with operating instructions; or (vii) use in connection with the operation of a nuclear facility. There is no warranty for labor expenses associated with field repairs or the repair or replacement of defective parts in the engine or power unit of any product if such product has been in the possession of the owner or operator for greater than twelve (12) months. There is no warranty for products determined to be, in PAC’s sole discretion, damaged as a result of (a) misuse, neglect or accident; (b) improper application, installation, storage or use; (c) improper or inadequate maintenance or calibration; (d) operation outside of the published environmental specification; (e) improper site preparation or maintenance; (f) unauthorized repairs or replacements; (g) modifications negligently or otherwise improperly made or performed by persons other than PAC; (h) Buyer-supplied software or supplies; (i) use in conjunction with or interfacing with unapproved accessory equipment; (j) use of ABC-style or dry powder fire suppression agents; or (k) leaked sample materials. To the extent a PAC product is used in connection with the operation of a nuclear power facility, Buyer agrees to indemnify and hold PAC harmless from any and all actions, claims, suits, damages and expenses arising from such use. PAC provides no warranty on the oral representations made by its personnel while they are attempting to assist Buyer in the operation of a product. This Standard Limited Warranty does not apply to items consumed by the products during their ordinary use, including but not limited to fuses, batteries, paper, septa, fittings, screws, fuses, pyrolysis, dryer or scrubber tubes, sample boats, furnaces or UV lamps.
3. Non-PAC Products. PAC does not in any way warrant products it does not manufacture except to the extent the warranty of the manufacturer of the product at issue passes through or is otherwise assigned to PAC. If a manufacturer warranty is so assigned to PAC, PAC will only be bound to comply with the length of time associated with such warranty. All other terms of such warranty will be governed by this Standard Limited Warranty and PAC’s General Terms and Conditions incorporated herein by reference.
4. Expenses on Non-Warranty Work. All repairs or replacements by PAC after the expiration of any applicable limited warranty period will be performed in accordance with PAC’s standard rate for parts and labor. Further, if upon PAC’s inspection and review, PAC determines the condition of the products is not caused by a defect in PAC’s material and workmanship, but is the result of some other condition, including but not limited to damage caused by any of the events or conditions set forth in Section I.2., Buyer shall be liable for all direct expenses incurred by PAC to conduct the inspection and review of the product.
5. Exclusive Remedy. The foregoing limited warranty constitutes Buyer’s exclusive remedy with respect to products sold by PAC and PAC’s liability shall be exclusively limited to the written limited warranty specified herein. No employee, representative or agent of PAC is authorized to either expressly or impliedly modify, extend, alter or change any of the limited warranties expressed herein to Buyer.
6. Procedure and Costs. All limited warranty claims must be made in writing promptly following discovery of any defect. Buyer must hold defective products for inspection by PAC. If requested by PAC, Buyer must send the product to PAC for inspection. Any such returns by Buyer will be at Buyer’s expense and Buyer will remain liable for any loss of or damage to the product during such product’s transportation to PAC. No products will be sent to PAC for inspection unless PAC has authorized Buyer to do so.
7. Terms and Conditions. PAC’s General Terms and Conditions are incorporated herein by reference and Buyer accordingly agrees to be bound by the terms thereof.
II. Limitations on PAC Liability
1. In General. Buyer agrees PAC shall not be liable for any direct, indirect, incidental, punitive or consequential damages, including lost profits, lost savings or loss of use, whether Buyer’s claim is based in contract, tort, warranty, strict liability or otherwise, which Buyer may suffer for any reason, including reasons attributable to PAC. Buyer agrees these limitations on PAC’s liability are reasonable and reflected in the amounts charged by PAC for its products.
2. Force Majeure. This Standard Limited Warranty does not cover and PAC shall not be liable for either direct or consequential damage caused, either directly or indirectly, as a result of: (i) any act of God, including but not limited to natural disaster, such as floods, earthquakes, or tornadoes; (ii) damages resulting from or under the conditions of strikes or riots, war, damages or improper operation due to intermittent power line voltage, frequency, electrical spikes or surges, unusual shock or electrical damage; or (iii) accident, fire or water damage, neglect, corrosive atmosphere or causes other than ordinary use.
3. Limitation on Warranty Claims. Prior to any obligation of PAC to perform any limited warranty service as set forth herein, Buyer must have: (i) paid all invoices to PAC in full, whether or not they are specifically related to the product at issue; and (ii) notified PAC of the limited warranty claim within sixty (60) days from the date Buyer knew or had reason to know of the defect. |