12-MONTH LIMITED EXPRESS WARRANTY FOR PRODUCTS / REJECTION OF NON-CONFORMING GOODS:
Acme Cryogenics (“Acme”) warrants to Buyer that the Products of Acme’s own manufacture supplied hereunder will, for a period of 12 months from the date of shipment to Buyer, be free from defects in material and workmanship under normal and proper installation, operating conditions and service. Within 10 days after Buyer’s discovery of what Buyer believes is a defect, Buyer must notify Acme thereof in writing and ship the product (at Buyer’s expense) to Acme Cryogenics at 2801 Mitchell Avenue, Allentown, PA 18103. Thereafter, Acme will, at its option and in its sole discretion, repair or replace any Product or part, individual component or spool thereof, that is found to be defective. This shall be Buyer’s sole and exclusive remedy for any Product or part, individual component or spool thereof, determined by Acme not to comply with the terms of Acme’s limited express warranty.
Notwithstanding the foregoing, Acme shall have no warranty obligation hereunder if all payments due from Buyer have not been made. This limited warranty does not extend to any Product or part that is not installed and used continuously in accordance with Acme’s printed instructions, all applicable state and local regulations, and all applicable national standards. This limited express warranty does not extend to any Product or part that has been damaged by accident, misuse, abuse, failure to maintain or neglect, nor does it extend to any Product or part that has been modified, altered, disassembled or repaired in the field. This limited express warranty does not apply if the Product or part becomes defective in whole or in part as the result of installation or repairs not made by Acme, or as the result of removal, improper use, storage or maintenance, or operation above rated capacities or misapplication thereof after it has been delivered to Buyer. This limited express warranty does not cover any cosmetic issues, such as scratches, dents, marring, fading of colors or discoloration.
Acme’s warranty does not extend to systems designed, in whole or in part, by Buyer or any third party, and Acme accepts no responsibility for the design of said system into which any Products are incorporated, including with respect to whether the system will function as intended by Buyer.
Products and parts made by other manufacturers are not warranted by Acme, and Buyer hereby expressly agrees and acknowledges that Buyer shall only have such warranty with respect to products and parts made by manufacturers and/or persons other than Acme as provided by such other manufacturers and/or persons provided to Acme. No repair or replacement under Acme’s warranty obligations will extend or enlarge the original 12-month limited express warranty period.
Acme shall be responsible for the replacement of non-conforming Products rejected by Buyer, provided that Buyer reports said non-conformance (including, without limitation, errors in quantity or weight) to Acme in writing within ten (10) days of receipt of such goods. If Buyer fails to notify Acme of any non-conformance within ten (10) days of Buyer’s receipt of any Products, Buyer shall be deemed to have accepted all Products delivered subject to Acme’s warranty obligations hereunder.
DISCLAIMER OF ALL OTHER WARRANTIES
EXCEPT AS SET FORTH HEREIN, ACME EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT IT IS NOT RELYING UPON ACME’S SKILL OR JUDGMENT TO SELECT OR FURNISH PRODUCTS SUITABLE FOR ANY PARTICULAR PURPOSE OR UPON ANY AFFIRMATIONS OF FACT OR PROMISES OF ACME WHICH EXTEND BEYOND SPECIFICATIONS MUTUALLY AGREED UPON IN WRITING BY ACME AND BUYER. IN THAT REGARD, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER AGREES AND ACKNOWLEDGES THAT IT IS ACCEPTING ANY GOODS, SERVICES AND / OR PRODUCTS HEREUNDER ON AN “AS-IS” AND “WITH ALL FAULTS” BASIS. FURTHERMORE, BUYER HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT ACME SHALL HAVE NO LIABILITY OF ANY NATURE HEREUNDER BEYOND REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCT, OR PART, INDIVIDUAL COMPONENT OR SPOOL THEREOF, EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND THE LIMITATION OF LIABILITY CONTAINED IN SECTION 22 OF THE ACME CRYOGENICS TERMS & CONDITIONS OF SALE SHALL APPLY IN FULL FORCE.
LIMITATION OF LIABILITY
Incidental and Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACME’S AGGREGATE LIABILITY WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY ACME FOR THE PRODUCTS OR SERVICES GIVING RISE TO ANY CLAIM HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACME SHALL NOT BE SUBJECT TO, AND BUYER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO, ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM ACME’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD OR SERVICES RENDERED PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF ACME OR OTHERWISE AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACME SPECIFICALLY DISCLAIMS AND BUYER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR SERVICES OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS OR FOR ANY OTHER TYPES OF ECONOMIC LOSS AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES.
Remedies. THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND CONDITIONS AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN). THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
NOTE: Some states do not allow the exclusion or limitation of incidental, consequential or punitive damages, so the above limitation or exclusion may not apply to Buyer. This warranty gives Buyer specific legal rights, and Buyer may have other rights that vary from state to state. The portions of this limited warranty and limitation of liability shall be considered severable and all portions which are not disallowed by applicable law shall remain in full force and effect.
The benefits given by the Limited Warranty above are in addition to any other rights and remedies to which Buyer may be entitled by law.
Limited Services Warranty. Acme warrants that it shall perform Services in a good and workmanlike manner, consistent with the standard of care exercised by Acme in performing services similar to the Services for its other customers. If Buyer notifies Acme in writing of any non-conforming Services no later than 12 months after they are rendered, Acme shall use commercially reasonable efforts to reperform such Services so that they conform to the warranty. However, Acme has no duty to incur costs for corrective reperformance that exceed the costs paid for the Services being reperformed. If Acme is unable to reperform the Services so that they conform to the warranty, Acme shall refund to Buyer the fees paid for such non-conforming Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CORRECTIVE REPERFORMANCE OF NON-CONFORMING SERVICES OR REFUND OF FEES PAID THEREFOR AS SET FORTH IN THIS PARAGRAPH SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER, AND THE EXCLUSIVE LIABILITY OF ACME, FOR ANY NON-CONFORMING SERVICES, AND BUYER EXPRESSLY WAIVES ANY OTHER RECOVERY.
WARRANTY: MEC Cryo LLC warrants to the original Purchaser that valves manufactured by MEC Cryo LLC will be free from defects in material or workmanship for a period of thirty-six (36) months from the date of shipment from MEC Cryo LLC or twenty-four (24) months of use under normal use and service, whichever comes first. All other goods covered hereby and manufactured by MEC Cryo LLC will be warranted for a period of eighteen (18) months from the date of shipment from MEC Cryo LLC or twelve (12) months of use under normal use and service, whichever comes first.
This limited express warranty shall not apply to:
(a) any goods that are not installed and used continuously in accordance with MEC Cryo LLC’s printed instructions, all applicable state and local regulations, and all applicable national standards;
(b) any goods that are damaged through improper installation, accident, failure to maintain, negligence, abuse, or poor operating practices;
(c) any goods that are modified, altered, disassembled, or repaired in the field;
(d) any systems designed, in whole or in part, by Purchaser or any third party, as MEC Cryo LLC accepts no responsibility for the design of said systems into which any Products are incorporated, including whether such systems function as intended by Purchaser;
(e) any cosmetic issues, including but not limited to scratches, dents, marring, fading of colors, or discoloration;
(f) replacement parts not manufactured or supplied by MEC Cryo LLC; or
(g) defects or damage caused by the use of parts not manufactured or supplied by MEC Cryo LLC or by repairs not performed by MEC Cryo LLC.
REMEDY: If any goods covered hereby and manufactured by MEC Cryo LLC are alleged to be defective under the warranty set forth above, the Purchaser shall, within ten (10) days after discovery of the alleged defect, notify MEC Cryo LLC in writing. After receipt of shipping advice, the Purchaser may return the alleged defective item to MEC Cryo LLC at 4430 East Adamo Drive, Suite 305, Tampa, Florida, transportation charges prepaid by the Purchaser.
If the returned goods are found to be defective, MEC Cryo LLC will, at its option and in its sole discretion, repair or replace the item free of charge, except for transportation charges. Any repair or replacement under this warranty shall not extend or enlarge the original warranty period. Notwithstanding the foregoing, MEC Cryo LLC shall have no warranty obligation hereunder if all payments due from Purchaser have not been made.
DISCLAIMER OF ALL OTHER WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN, MEC CRYO LLC EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Purchaser acknowledges that it is not relying upon MEC Cryo LLC’s skill or judgment to select or furnish products suitable for any particular purpose, nor upon any affirmations of fact or promises beyond specifications mutually agreed upon in writing. Except as expressly provided herein, Purchaser agrees that all goods, services, and/or products are accepted on an “AS IS” and “WITH ALL FAULTS” basis.
Furthermore, Purchaser expressly agrees and acknowledges that MEC Cryo LLC shall have no liability of any nature beyond the repair or replacement of defective products, parts, or components, except as expressly set forth herein, and that the limitation of liability contained in Section 20 of MEC Cryo LLC’s Terms & Conditions of Sale shall apply in full force.
LIMITATION OF LIABILITY: The parties agree that Purchaser’s sole and exclusive remedy against MEC Cryo LLC shall be repair or replacement as provided above. To the maximum extent permitted by applicable law, MEC Cryo LLC shall have no liability for any other damages of any kind whatsoever.
Purchaser specifically agrees that no other remedy shall be available, including but not limited to damages for personal injury, property damage, lost profits, labor costs, interruption of operations, repair or replacement costs, or any special, exemplary, punitive, incidental, or consequential damages, whether arising from breach of contract, breach of warranty, strict liability, negligence, or otherwise, and whether or not such damages were foreseeable.
This exclusive remedy shall not be deemed to have failed of its essential purpose so long as MEC Cryo LLC is willing and able to make said repair or replacement. MEC Cryo LLC neither assumes nor authorizes any other person to assume any additional liability in connection with the goods covered hereby.
SPECIFICALLY EXCLUDED DAMAGES: Without limiting the foregoing, and to the maximum extent permitted by applicable law, MEC Cryo LLC specifically disclaims and Purchaser waives any claims for property damage or personal injury, penalties, lost profits or revenues, loss of use, cost of capital, cost of substitute products or services, downtime, shutdown or slowdown costs, or any other economic loss, including claims asserted by Purchaser’s customers or any third party.
NOTE: Some states do not allow the exclusion or limitation of incidental, consequential, or punitive damages, so the above limitations may not apply. This warranty provides Purchaser with specific legal rights, and Purchaser may have additional rights that vary by state. The provisions of this limited warranty and limitation of liability are severable, and any provisions not disallowed by applicable law shall remain in full force and effect.