EXCUSE OF PERFORMANCE - Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; shortages of labor, fuel, raw material or machinery; or technical failure where Seller has exercised ordinary care in the prevention thereof; or, unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Products or such material (without obligation to acquire other supplies of any Products or material) among its purchasers on such basis as seller determines to be equitable without liability for any failure of performance which may result therefrom.
RETURNS - Under no circumstances may Product be returned to the Seller unless advance written authorization and shipping instructions have been received from the Seller. Product specially manufactured by Buyer (Custom Product) is not returnable. Standard Product, in an unused and undamaged condition, subject to written authorization above, may be returned at Buyer’s expense within thirty (30) days after receipt subject to payment by Buyer of a ten (20) percent of the purchase price, inspection and restocking charge.
LIMITED WARRANTY - Subject to the limitations of this Section,, Seller warrants that the Products represented by Seller will be free from defects in material and workmanship under normal use and regular service and maintenance for a period of from 30 days from date of shipment by Seller (“Warranty Period”) dependent upon warranty of the manufacturer that supersedes this warranty in ALL cases.. Products purchased by Seller from a third party for resale to Buyer shall carry only the warranty extended by the original manufacturer.
If within thirty (30) days after Buyer’s discovery of any warranty defects within the Warranty Period, Buyer notifies Seller thereof in writing, Seller shall, at its option, repair, correct or replace F.O.B. point of manufacture or refund the purchase price for, that portion of the Products found by Seller to be defective; provided, that buyer’s exclusive remedy for a breach of this warranty as to converters shall be limited to one time replacement of the converter. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Products repaired or replaced (excluding converters) during the warranty period shall be covered by the foregoing warranty for the remainder of the original warranty period or ninety (90) days from the date of shipment, whichever is longer. This warranty shall not apply to and does not cover:
(a) Any Product: (1) which has been repaired or altered by parties other than Seller in any manner so as, in Seller’s judgment, to affect its serviceability or proper operation or re-sale; (2) which has been subjected to improper handling, installation, operation, maintenance, repair, or modification, or alteration; or (3) which has been subjected to misuse, negligence, abuse, accident, abnormal wear and tear, or deterioration caused by chemicals or other substances or corrosion;
(b) Cavitations erosion of the tank and transducer surfaces or horn surface wear of Branson™ , Bransonic™, and Greco Brother products, each of which is a normal occurrence and develops over time in the operation of ultrasonic equipment; and
(c) Performance or nonperformance of the Products in Buyer’s application of the Product, unless otherwise provided for by AMS materials, LLC in the warranty section as contained in the Instruction or Operation Manual governing the use of the model of Product. Buyer acknowledges that, due to differences in abrasive qualities of materials used in Buyer’s (or other user’s) parts on the Products, the life span of the horn and/or fixture c(for Branson™, Bransonic and Greco Brothers products) cannot be predicted, and Buyer’s (or other user’s) specific application of the Products may be impractical or inappropriate.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other products/components.
THESE ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO PRODUCTS AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS, OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
LIMITATION OF REMEDY AND LIABILITY - THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION LIMITED WARRANY ABOVE) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 7.
SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE TO BE PAID BY BUYER FOR THE SPECIFIC PRODUCTS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment