EXPRESS WARRANTIES
Upon Seller’s receipt of Buyer’s payment in full of all outstanding invoices with Seller and subject to the terms and conditions set forth in this Article, Seller hereby warrants the Metal Building System to the Buyer only against failure due to defective material or workmanship for a period of one (1) year from date of shipment from its plant or in the case of an Erected building from date of substantial completion. Damage due, whether in whole or in part to faulty or improper erection or maintenance by others not affiliated with Seller as per Seller’s and Buyer’s Agreement, shall NOT be covered. As a condition precedent to the effectiveness of the foregoing warranty, the Metal Building System must be erected promptly after shipment from Seller’s plant, without any undue delay and must be erected in strict accordance with Seller’s plans and specifications. Any damage to the Metal Building System not directly and wholly attributable to the negligence or fault of Seller, misuse and abuse, lack of proper maintenance, and normal wear and tear are not covered by this warranty. Seller’s sole obligation and Buyer’s sole and exclusive remedy, in Seller’s sole discretion, with respect to the foregoing warranty is expressly limited to repair of the defective materials or furnishing necessary replacement materials FOB Seller’s facility, but shall not include any charges for transportation, insurance, or labor of dismantling and installing such materials. This warranty does not cover products, materials, accessories, parts or attachments that are not manufactured by Seller except to the extent of any replacements or reimbursements that are obtained pursuant to any warranty given Seller by the original manufacturer, and specifically excludes any obligation by Seller related to other property of Buyer or any property of third parties. This warranty is specifically non-assignable and not-transferable.
DISCLAIMER OF WARRANTY- THE ABOVE WARRANTY DOES NOT COVER PRODUCTS, ACCESSORIES, PARTS OR ATTACHMENTS THAT ARE NOT MANUFACTURED BY SELLER, EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN. SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE METAL BUILDING SYSTEM AND ANY AND ALL IMPLIED WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SELLER’S MAXIMUM AGGREGATE LIABILITY TO BUYER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY SUBSEQUENT PURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER WITH RESPECT TO THE METAL BUILDING SYSTEM.
ACCORDINGLY, BUYER AGREES TO ASSUME THE RESPONSIBILITY FOR INSURING AGAINST OR OTHERWISE BEARING THE RISKOF ANY AND ALL GREATER DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, LIQUIDATED, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, COST OF COVER OR BACK-CHARGE DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, LABOR COSTS AND EXPENSES, COST OF RENTING EQUIPMENT AND OTHER ADDITIONAL EXPENSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES AS A RESULT OF BUYER’S (OR ANY OTHER PARTY’S) NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE OR CONTRIBUTING CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE.
UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER, OWNER(S) OR ANY THIRD PARTY, IN ANY RESPECT FOR, AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY. WARRANTIES AND REPRESENTATIONS REGARDING, PAST, PRESENT OR FUTURE WATER LEAKS OR MOISTURE INTRUSIONS, DAMAGES TO THE SUBJECT BUILDING(S) OR ANY COMPONENTS OR CONTENTS THEROF,OR ANY INTERIOR SPACE(S) OR PROPERTY THERIN, INCLUDING CLAIMS PERTAINING TO MOLD, MILDEWAND/OR FUNGI, OR THE INTERRUPTION IN THE USE OF THE SUBJECT BUILDING(S) OR PERSONAL INJURY OR PROPERTY DAMAGE CLAIMS RESULTING FROM THE ALLEGED EXISTENCE OR GROWTH OF MOLD, MILDEW AND/OR FUNGI.
BUYER ACKNOWLEDGES THAT THE PRICING OF THE PRODUCTS AND/ORSERVICES TO BE PROVIDED BY SELLER PURUANT TO THIS AGREEMENT REFLECTS THE INTENT OF THE PARTIES TO LIMIT SELLER’S LIABILITY AS PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE ARE INTENDED TO LIMIT SELLER’S LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT FIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING.
BUYER AGREES TO USE ITS COMMERCIAL BEST EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY BUYER, OWNER(S) OR ANY THIRD PARTIES PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTADING THE FOREGOING, THE DISSCLAIMER OF WARRANTIES AND/OR THE DISCLAIMER AND/OR LIMITATIONS SET FORTH HEREIN ARE NOT FULLY ENFORCEABLE UNDER APPLICABLE LAW, BUYER MAY HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
The parties acknowledge that it is not unconscionable under the commercial circumstances of this Agreement to limit the award of consequential damages as contemplated by this Agreement. In the case of an FOB Contract, except for the obligations of Seller under “Warranty”, all responsibility of Seller for the Metal Building System ceases upon delivery thereof by Seller to the Buyer’s jobsite or by the Buyer taking possession of the Metal Building Package at Seller’s plant. Buyer hereby agrees and stipulates that Seller’s schedule is approximate only.
WEATHER TIGHTNESS WARRANTY
In the case of Seller’s crews erecting the Metal Building System, Seller warrants the Building against Leaks for a period of one (1) year, unless otherwise specified in this Agreement. This Warranty covers leaks solely caused and relating to the installation of materials installed by Seller’s crews, and covers the materials needed as determined by Seller to weather tight the Building. Seller shall not be liable for Consequential Damages to Buyer’s personal property and Seller shall not be responsible for any liquidated damages assessed by the Buyer. Buyer agrees that if Seller is called to the jobsite after de-mobilization of Seller’s crews and equipment to repair a leak, and it is determined to have been caused by another of Buyer’s subcontractors, that Buyer will reimburse Seller of all expenses that are incurred by Seller to re-mobilize on jobsite to inspect for the leak, including but not limited to, materials, vehicle expenses and man hours to and from the Seller’s location at 900 NE Loop 7, in Athens, Texas. Seller may repair the leak if requested to do so by the Buyer. Buyer agrees to reimburse Seller for expenses incurred in the repair of the leak along with previously mentioned expenses.