The Company warrants to the Purchaser that the equipment to be delivered hereunder will be free from defects in material or workmanship and will be of the kind and quality designated or specified in the contract.
For stand-by generator set applications, this warranty shall apply only to defects appearing within two years or 1000 hours of operation, which ever comes first, from the date of shipment by the Company. For continuous use application, this warranty shall apply only to defects appearing within one year or 1000 hours of operation, whichever comes first, from the date of shipment by the Company. If the Company installs the equipment or supplies technical direction of installation by contract, the warranty period shall run from the completion of installation, provided same is not unreasonably delayed by the Purchaser. The conditions of any tests shall be mutually agreed upon and the Company shall be notified of, and may be represented at, all tests that may be made. This warranty shall not apply to goods which have been subjected to misuse, abuse, neglect or improper storage, handling or maintenance, or which have been damaged by misalignment, torsional vibrations, or critical speeds.
If the equipment delivered hereunder does not meet the above warranty, and if the Purchaser promptly notifies the Company, then the Company shall thereupon correct any defect, including non-conformance with the specifications, either (at its option) by repairing any defective or damaged parts of the equipment, or by making available at the Company plant necessary repaired or replacement parts. The liability of the Company under this warranty, or for any loss or damage to the equipment whether the claim is based on contract or negligence, shall not in any case exceed the cost of correcting defects in the equipment as herein provided and upon the expiration of the warranty period all such liability shall terminate. The foregoing shall constitute the exclusive remedy of the Purchaser and the exclusive liability of the Company.
The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR PURPOSE SHALL APPLY. The Company does not warrant any equipment of other manufacture designated by Purchaser.
Warranty does not apply in the following cases.
(1) Damage or defects caused by accident, misuse, negligence or natural calamity.
(2) Damage or defects caused by using parts or installation attachments that are not authorized in writing by the Company.
(3) Change, alteration or modification to machine or any of its components or parts by non approved the Company nominated dealers which in the sole judgment of the Company, affects the performance, stability or purpose for which it was manufactured.
(4) Slight defects which do not affect the stability or reliability of the machine.
(5) Service maintenance, such as engine cleaning, replacement of consumable parts, lubrication, etc.
Pro rata payments shall become due as shipments are made. If shipments are delayed by the Purchase, payments shall become due on the date when the Company is prepared to make shipment. If the work to be performed hereunder is delayed by the Purchaser, payments shall be made based on the purchase price and the percentage of completion. Equipment held for the Purchaser shall be at the risk and expense of the Purchaser.
If the financial condition of the Purchaser at any time does not, in the judgment of the Company, justify continuance of the work to be performed by the Company hereunder on the terms of payment agreed upon, the Company may require full or partial payment in advance or shall be entitled to cancel any order then outstanding and shall receive reimbursement for its reasonable and proper cancellation charges. In the event of bankruptcy or insolvency of the Purchaser or in the event any proceeding is brought against the Purchaser, voluntarily or involuntary, under the bankruptcy or any insolvency laws, the Company shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of the Company under this paragraph are cumulative and in addition to all rights available to the Company at law or in equity.
SALES AND SIMILAR TAXES
The Company prices may not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise, or other similar tax applicable to the sale or use of the equipment hereunder shall be paid by the Purchaser, or in lieu thereof the Purchaser shall provide the Company with a tax-exemption certificate acceptable to the taxing authorities.
The Purchaser may cancel his order only upon written notice and upon payment to the Company of reasonable and proper cancellation charges.
LIMITATION OF LIABILITY
The Company liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection, repair, operation or use of any equipment covered by or furnished under this contract shall in no case, exceed the price allocable to the equipment or unit thereof which gives rise to the claim and shall terminate two years after the completion of installation of the equipment.
In no event, whether as a result of breach of contract or warranty or alleged negligence, shall the Company be liable for special or consequential damages including, but not limited to, loss of profits or revenue, loss of use of the equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, or claims of customers of the Purchaser for such damages.
Any assignment of this contract, or any rights hereunder, by the Purchaser without consent of the Company shall be void.
The provisions of this contract are for the benefits of the parties thereto and not for any other person. No understanding, promise or representation, and no waiver, alteration or modification of any of the provisions hereof, shall be binding upon the Company unless assented to in writing by an authorized representative of the Company.