- e) the customer or any of its personnel have attempted to repair or replace or modify the product or any component part;
- f) the customer is past due on any money due to SureBuilt.
This warranty is exclusive of and is in lieu of all other warranties, expressed or implied, including without limitation any warranty of merchantability or fitness for a particular purpose. This warranty is not transferrable, assignable and is void and of no effect in the event that the product is transferred by customer to any third party.
5. Limitation of Liability:
SureBuilt is not liable for its failure to fulfill its obligations due to causes beyond its control. In no event will SureBuilt be liable for any incidental or consequential damages, including but not limited to damages for loss of profit or revenue, loss of capital, claims of customer for service interruptions, or failure to supply, down time, testing or installation cost or costs of substitute products, facility or services, even if SureBuilt has been advised of the possibility of such potential damages or for any claim against the customer by any other party. Customer agrees that any basis for imposing liability on SureBuilt for property damage, personal injury or death or legal expenses relating to the sale or use of SureBuilt product shall be void and unenforceable. The total liability of SureBuilt on any claim, whether in contract, tort, including negligence or otherwise, arising out of, connected with or resulting from the manufacture, sale, delivery, repair, replacement or use of the Product or component part of the Product will not exceed the price allocable to the Product or component part thereof which gives rise to the claim. SureBuilt’s total liability to customer for damages, from any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, is limited to actual damages up to the purchase price paid for the Product or any component part thereof that caused the damages or is the subject matter of the sale of the Product or directly related to the cause of action.
6. Force Majeure:
In no event shall SureBuilt be liable for any losses or damages including incidental or consequential damages, delays or defaults occasioned by: a) acts of God or public enemy; b) acts of the United States or any states or political subdivision thereof; c) fires, floods, explosions, or other catastrophes; d) epidemics and quarantine restrictions; e) strikes, slowdowns or labor stoppage of any kind; f) freight embargos, unusually severe weather; g) delays of a supplier; h) material shortages, or i) causes beyond the control of SureBuilt.
7. Indemnification by Customer:
Customer shall be responsible for, indemnity, defend and hold SureBuilt harmless from and against all liabilities, claims, judgments, costs, damages and expenses (including reasonable attorney fees and expenses), including for personal injury, death, property damage or otherwise, arising out of or relating to the use of the Products and/or the Services and any other act, or omission by Customer or any subcontractor, agent, sublessee, employee, or purchaser of or from Customer with respect to the Products and/or Services, unless resulting from the gross negligence or willful misconduct of SureBuilt. If Customer resells purchased Products, Customer shall include language in an agreement that makes these Terms (including the limitations in paragraph 4) binding on any subsequent purchasers of the Products, including binding the purchaser to these obligations of indemnification, in addition to Customer. Customer represents to SureBuilt that it and its employees and agents are knowledgeable and experienced about the Product and familiar with the use of the Product and that they are not relying on SureBuilt or any representation made by SureBuilt, its salesman, agents, as made in any catalog or otherwise, but that Customer is relying solely on its own expertise and evaluation or expertise of its retained professionals and that Customer has made a separate and independent verification and analysis that the product will meet all standards required in the application for which Customer intends to use the Product.
8. Documentation and Product Data:
Any specifications, plans, drawings or application recommendations furnished by SureBuilt to Customer (“Documentation”) are provided only as a service to Customer to conceptually illustrate the assembly and use of Products. Such Documentation is not intended to be fully directive nor to cover all engineering details on Products, or on products or materials not furnished by SureBuilt, or on their interconnection. Inasmuch as SureBuilt does not control jobsite assembly or procedures, grade or quality of materials, and/or equipment supplied by others, it is the responsibility of Customer to integrate Documentation into composite drawings and information suitably complete for construction purposes. In the case of non-standard, non-stock, and/or made-to- order Products, design drawings will be furnished by SureBuilt for Customer approval prior to production. SureBuilt shall not be responsible for any deviations, changes or alterations to the recommended assembly details described in drawings, unless such deviations, changes or alterations are illustrated in a revised design drawing provided by SureBuilt. SureBuilt shall at all times retain ownership of all Documentation and other technical data (“Product Data”) with respect to the Products and Services, and unless authorized by SureBuilt,