Colder Products Company – Limited Warranty
1. General. Colder Products Company (“CPC”) warrants to CPC’s initial customer (“Customer”) only (regardless of any subsequent sale or transfer of the products) that: (i) its products will be free from defects in materials and workmanship and materially comply with CPC’s published product specifications for a period of twelve (12) months after the delivery of the products to Customer; and (ii) any services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Customer must bring any warranty claim within five (5) days after becoming aware of the alleged non-conformance, and the warranty expires twelve (12) months after the delivery of the products or completion of the service, as applicable. Customer’s sole and exclusive remedy for any breach of the warranty is, at CPC’s option: (a) repair or replacement of the nonconforming product(s) or re-provision of the applicable service(s); or (b) an account credit for the actual amount paid for such non-conforming product(s) or service(s). These remedies shall be the exclusive remedies for all claims based on product failure or defect, regardless of when such failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. These warranties are exclusive and are in lieu of all other warranties, conditions and guarantees, whether written, oral, implied or statutory. Repaired or replaced products or re-performed services shall not extend or renew the applicable warranty period. Products may not be returned without CPC’s prior written authorization, and any costs and expenses in connection with storing, repackaging, and returning any Product will be the responsibility of the Customer. Products must be returned in strict compliance with CPC’s written return instructions, as noted above. For the avoidance of doubt, the warranties described herein do not apply under any circumstances to any Other Products (as defined below).
2. Conditions and Exceptions. The warranties and remedies set forth in this warranty are expressly conditioned upon (a) proper storage, installation, use, operation, and maintenance of products; (b) Customer’s keeping complete and accurate records of operation and maintenance during the warranty period and providing CPC access to those records; (c) modification or repair of products only as authorized by CPC in writing; and (d) use of the products solely for their intended purpose. Failure to meet any such condition renders the warranty null and void. CPC is not responsible for normal wear and tear. In addition, the warranty DOES NOT COVER products that: (i) have been subject to misuse, tampering, negligence, accident, or improper installation, maintenance or storage; (ii) have been altered without CPC’s prior written consent; (iii) based on CPC’s examination, do not disclose to CPC’s satisfaction the non-conformance with the warranty; or (iv) are identified as a pre-production version, prototype, sample, reference design or similar.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CPC HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
3. Other Products. Notwithstanding the foregoing, in the event CPC provides products to Customer at no charge, such as samples (“Other Products”), Customer’s use of Other Products is subject to any additional terms that CPC may specify. Customer’s use of Other Products is only permitted for the period designated by CPC. Customer agrees not to use Other Products for competitive analysis or similar purposes. CPC may terminate Customer’s right to use Other Products at any time and for any reason in CPC’s sole discretion, without creating any obligation to Customer. Customer understands that any pre-release products made available by CPC are still under development and may be inoperable or incomplete. All information regarding the characteristics, features or performance of prototypes constitutes CPC’s Confidential Information and shall be protected in accordance with CPC’s Terms and Conditions of Sale. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CPC DISCLAIMS ALL OBLIGATIONS OR LIABILITIES WITH RESPECT TO OTHER PRODUCTS, INCLUDING ANY SUPPORT AND MAINTENANCE, WARRANTY, AND INDEMNITY OBLIGATIONS.
4. Additional Terms Pertaining to Warranties. Deviations from published specifications which do not materially affect performance of the products covered hereby shall not be deemed to constitute a breach of the Limited Warranty, which is subject to the disclaimers and exclusions set forth herein.
5. Limitations of Liability.
a. Incidental and Consequential Damages. CPC’S LIABILITY WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY CPC FOR THE PRODUCTS OR SERVICES GIVING RISE TO ANY CLAIM HEREUNDER. CPC SHALL NOT BE LIABLE FOR OR SUBJECT TO, AND CUSTOMER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO, ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL CONTINGENT AND OTHER DAMAGES WHATSOEVER, RESULTING FROM CPC’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE WARRANTY OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD OR SERVICES RENDERED, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE PRODUCTS EITHER SEPARATELY OR IN COMBINATION WITH OTHE PRODUCTS, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF CPC OR OTHERWISE, AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CPC SPECIFICALLY DISCLAIMS AND CUSTOMER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS 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 CUSTOMER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES.
c. Technical Advice. CPC MAY PROVIDE TECHNICAL ADVICE FROM TIME TO TIME IN CONNECTION WITH THE SALE OF PRODUCTS OR SERVICES. CPC EXPRESSLY DISCLAIMS ALL LIABILITY ASSOCIATED WITH THE PROVISION OF SUCH ADVICE, INCLUDING FOR ANY RESULTS RELATED THERETO. ALL SUCH ADVICE IS ACCEPTED BY CUSTOMER AT ITS OWN RISK.
d. Product Selection. FOR THE AVOIDANCE OF DOUBT, CUSTOMER SHALL BE SOLELY RESPONSIBLE, AND CPC SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER (WHETHER IN WARRANTY OR OTHERWISE), FOR DETERMINING THE NECESSARY OR MOST SUITABLE PRODUCT OR SERVICE FOR ANY PARTICULAR USE CASE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CERTAIN PRODUCTS MAY BE MORE SUITABLE FOR PARTICULAR USE CASES, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ALL DAMAGES RELATED TO SELECTING AN IMPROPER OR LESS SUITABLE PRODUCT OR SERVICE FOR ANY PARTICULAR USE CASE, WHETHER SUCH DAMAGES ARE SUFFERED BY CUSTOMER OR A THIRD PARTY.