1. LIMITED WARRANTY
1.1 Lovejoy warrants that, on the Shipment Date, the Products (a) will conform to any specifications explicitly identified on the face of Lovejoy’s quotation or acknowledgement or set forth explicitly in another document that is a part of the Agreement, and (b) will be free of defects in material and workmanship that would be discovered by following Lovejoy’s standards of manufacture and inspection at the time of manufacture. Lovejoy warrants that the Services will be performed in a good and workmanlike manner in accordance with any specifications explicitly identified on the face of Lovejoy’s quotation or acknowledgement or set forth explicitly in another document that is part of the Agreement. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF, AND LOVEJOY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF DESIGN, PERFORMANCE OR PRODUCT LIFE, WARRANTIES OF COMPLIANCE WITH BUYER’S QUALITY MANUALS, QUALITY POLICIES, INSPECTION Lovejoy, LLC Terms & Conditions of Sale 3 Version 2019 (April 8, 2019) PROTOCOLS AND OTHER POLICIES AND REQUIREMENTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.2 The limited warranty will be void upon any action inconsistent with the proper use and handling of the Products, Service Items or other results of Services, including (a) improper handling, transportation, modification or repair, (b) accident, abuse or improper use (including improper selection, improper sizing, improper alignment, or the use of horsepower,or torque outside of the product catalog ratings.), and (c) improper installation, lubrication or maintenance.
1.3 The limited warranty in Section 1.1 does not apply to Products supplied for testing and evaluation (“prototype parts”). Prototype parts are supplied “AS IS” without warranty of any kind. Lovejoy will have no liability for any claims related to prototype parts, and Buyer shall indemnify, defend and hold Lovejoy harmless from any such claims. Lovejoy makes no warranty to those persons defined as consumers in the Magnuson-Moss Warranty – Federal Trade Commission Improvement Act.
2. EXCLUSIVE REMEDY; LIMITATION OF LIABILITY
2.1 If a Product does not meet the limited warranty described in Section 1.1, Buyer’s sole and exclusive remedy will be, at Lovejoy’s choice, repair or replacement of the nonconforming Product (EXW the designated Lovejoy facility) or a credit of a fair amount not to exceed the price paid for the nonconforming Product. If an item of Services does not meet the limited warranty described in Section 1.1, Buyer’s sole and exclusive remedy will be, at Lovejoy’s choice, for Lovejoy to re-perform the nonconforming portions of the Services or issue a credit of a fair amount not to exceed the price paid with respect to the nonconforming portions of the Services. To be entitled to the exclusive remedy, Buyer must (a) submit the warranty claim to Lovejoy within one year following the Shipment Date for Products or Completion Date for Services, as applicable (but no later than six weeks following the first discovery of a possible nonconformity), (b) return to Lovejoy 100% or, if agreed by Lovejoy, a lesser but still statistically relevant percentage of the Products or Service Items claimed to be defective, and (c) provide reasonable evidence in support of the warranty claim, including, if requested by Lovejoy, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. The warranty claims limitation period for repaired or replaced Products and re-performed Services will expire at the same time as the original warranty claims limitation period.
2.2 The remedy described in Section 2.1 is Buyer’s sole and exclusive remedy for a breach of the limited warranty and for any other claim relating to the Products and Services, regardless of the basis of Buyer’s claim, whether it is in contract, tort, express or implied warranty, negligence, strict liability or otherwise, and regardless whether any damages were caused by Lovejoy’s negligence or by any defect in the Products or Services. Without limiting the generality of the preceding sentence, Lovejoy will not be liable for, and Buyer shall not assert, any of the following, whether or not due to Lovejoy’s negligence or due to a defect in the Products or Services, and regardless whether the basis is product warranty, delayed or incomplete delivery, negligence or any other cause: (a) consequential, incidental, indirect, special and punitive damages; (b) the cost of removing and reinstalling Products or Service Items, sending Products or Service Items to Lovejoy for warranty inspection, and any other work performed on the Products or Service Items; (c) damage to or the cost of making adjustments or repairs to any mechanism, equipment or machinery in which the Products, Service Items or other items that were the subject of Services were installed; (d) loss of profits or revenue, loss of use, line shut-down, cost of capital, and cost of substituted product, facilities or services; and (e) claims of Buyer’s customers or other third parties for damages or penalties, whether or not Buyer is legally obligated to pay them. This disclaimer and exclusion will apply even if the exclusive remedy described in Section 2.1 fails its essential purpose.
2.3 An action by Buyer to enforce a warranty claim, whether by court action, arbitration or other proceeding, will be barred unless commenced within one year following Lovejoy’s notification to the customer of Lovejoy’s determination (for example, on the validity of the warranty claim or the availability or scope of the remedy) upon which Buyer’s claim is based.