This Warranty is applicable to all Stobag North America Corp., (“STOBAG”) manufactured products (the “Products”). In this Warranty, the term “End User” means the first end user of the Products to whom a distributorauthorized by STOBAGsells the Products.
1.1. STOBAG warrants to the End Userof the Products that for the Warranty Period (as defined below), the Products will be free from defects in materials and workmanship under normal use, and will conform to STOBAG’s published specifications of the Products. Notwithstanding the foregoing, STOBAG retains its right to deviate from its published specifications due to the latest innovations and improvements in function and design of the Products.
1.2. This warranty shall exclude and STOBAG shall not be liable for any failure of the Products caused by:
(a)improper storage and transportation of the Products;
(b)the use of the Products in conjunction with any other equipment which has not been provided or approvedby STOBAG;
(c)any use of the Products other than for the purpose for which they were designed;
(d)neglect or abuse of the Products;
(e)installation, repair or maintenance of the Products by persons other than authorized distributors of STOBAG;
(f)modifications to theProducts that were not approved by STOBAG;
(g)corrosion to the Productscaused byexternal factors including but not limited tosand, salt, hailor stones;
(h)normal wear and tear on the Products; or
(i)any other cause not involving manufacturing defects in the Products.
1.3. The End User of the Product shall immediately, but in any event no later than five (5) days following installation of the Product, inspect the Product for conformity and visible defects. The End User of the Product shall give STOBAG immediate written notice of any non-conformities or visible defects regarding the Product. In the event that the End User fails to provide STOBAG within five (5) days following installation of the Product with notice of any non-conformities or visible defects, any warranty claims in this regard shall be deemed waived.
1.4. End User shall immediately notify STOBAG in writing of any other defects of the Products and return such defective Product. STOBAG’s sole obligation under the foregoing warranty is, at STOBAG’s option, to repair, replace or exchange the defective Product. Any replaced or exchanged Products shall be subject to the warranty set forth in 1.1., following their replacement or exchange, and the Warranty Period for the replaced or exchanged product shall be five (5) years from the invoice date on the original Product that was replaced or exchanged. If STOBAG receives notification from End User of a defect to the Product, and no defect is discovered, in STOBAG’s sole discretion, End User shall bear the costs that STOBAG incurred as a result of the notice.
1.5. STOBAG also makes no warranty that the Products manufactured under an order made to End User specifications do not infringe the intellectual property or other proprietary rights of any third party and End User is solely responsible for assuring that such Products do not so infringe.
1.6. The “Warranty Period” begins on the date of STOBAG’s invoice to the distributor for the Products and automatically terminates five (5)
1.7. STOBAG does not authorize any person or party to assume or create for it any other obligation or liability in connection with the Products except as set forth herein.
1.8. All requests and notices under this Warranty shall be directed to:
1.9. The warranty set forth in section 1.1. Is made in lieu of all other warranties (whether express or implied), rights or conditions, and End User acknowledges that except for such limited warranty, the products are provided “as is.” STOBAG specifically disclaims, without limitation, all other warranties, express or implied, of any kind, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose, non-infringement, and those warranties arising from a course of performance, a course of dealing or trade usage.
2. LIMITATION OF LIABILITY:
2.1. Under no circumstances shall STOBAG be liable for any punitive, indirect, incidental, special or consequential damages, including but not limited to, damages for loss of earnings, profits, revenue, goodwill or use, incurred by End User or any third party, whether in an action based upon equity, contract, tort, strict liability, or imposed by case law or statute, or otherwise, even if previously advised of the possibility of such damages.
2.2. Notwithstanding the terms and conditions set forth in section 2.1., STOBAG’s liability – whether based upon contract, tort, equity, negligence or any other legal concept – shall in no event exceed the value of End User’s order to which the damages are pertaining to, as described on the order form, or the order value for one (1) calendar year, whichever amount is lower. It is agreed and acknowledged that the provisions of this agreement allocate the risks between STOBAG and End User in an equitable manner, that STOBAG’s pricing reflects this allocation of risk, and but for this allocation and limitation of liability, STOBAG would not have entered into this agreement.
2.3. In jurisdictions that limit the scope of or preclude limitations or exclusion of remedies or damages, or of liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth above are intended to apply to the maximum extent permitted by applicable law. End User may also have other rights that vary by state, country or other jurisdiction.
2.4. This Warranty provides the sole remedies of the End User for any breach of warranty for the Products to the exclusion of all other remedies to the extent permitted by law.
3. GOVERNING LAW:
3.1. This Warranty is governed by the laws of the Province of Ontario and the federal laws of Canada which apply in Ontario. The United Nations Convention on the International Sale of Goods shall not apply to any sale of the Products. The Courts of the Province of Ontario shall have exclusive jurisdiction for all disputes regarding this Warranty. The parties waive their right to a trial by jury in any proceeding relating to this Warranty.