Warranty

John Guest USA, Inc. Terms & Conditions of Sale
Rev. July 2014
premises any of the said goods which the Buyer believes to be
defective, carrier paid, properly packed and clearly marked
with the Buyer’s full name and address and any other
information such as serial numbers which may be necessary
to enable the goods to be identified, together with a complete
description of the respects in which it is alleged that the
goods are defective, they will be repaired or new goods will be
supplied in exchange and the goods so repaired or such new
goods will be delivered to the Buyer free of charge at the
Seller’s premises provided that the foregoing warranty shall
only be applicable if upon demand by the Seller, the Buyer
proves to the Seller’s satisfaction: (i) that the defect was due
solely to defective workmanship; (ii) that no alterations or
repairs have been made to the goods except with the Seller’s
written consent; (iii) that the defect was not caused by any act
of the Buyer or its agents; and (iv) that the defect was not
caused by any matter beyond the reasonable control of the
Seller, including, without limitation, accident or normal wear
and tear. (b) For John Guest PEI, MWI and PSEI Series
Plumbing products and Speedfit PEX Pipe only, the warranty
period contained in sub-paragraph (a) may be extended to 300
months (25 years) from date of delivery of the goods to the
Buyer provided that, in addition to all other requirements,
Seller’s products are: (i) used in domestic plumbing
applications; (ii) Installed by a Licensed Contractor, Plumber
or qualified equipment installation professional; and (iii)
Installed and operated in accordance with published John
Guest technical specifications. (c) All costs and expenses,
including freight charges, customs duties, and insurance
incurred in returning the goods to the Seller’s premises in
accordance with this provision shall be paid by the Buyer. The
benefit of this warranty shall not be assignable by the Buyer.
(d) The warranty contained in sub-paragraphs (a) and (b)
above does not extend to any goods not manufactured by the
Seller even though supplied by the Seller nor does it extend to
any second-hand or reconditioned goods nor does it extend to
components manufactured by the Seller but installed, attached
or welded by the Buyer or his customer on equipment not
manufactured by the Seller. Goods not manufactured by the
Seller carry only the warranty (if any) of their makers and the
Buyer is entitled to the benefit thereof only so far as the Seller
has the power to transfer it. (e) This warranty comprises the
sole and entire warranty pertaining to items provided
hereunder; the Seller makes no other warranty, guarantee, or
representation of any kind whatsoever. All other warranties,
including but not limited to, merchantability and fitness for
purpose, whether expressed or implied, or arising by
operation of law, trade usage, or course of dealing are hereby
disclaimed. (f) Notwithstanding the foregoing, there are no
warranties whatsoever on items built or acquired wholly or
partially to the Buyer’s designs or specifications.
15. Limited Remedy. The Seller’s liability arising from or in
any way connected with the items sold or this Agreement shall
be limited exclusively to repair or replacement of the items
sold. In no event shall the Seller be liable to the Buyer or any
3rd party for any incidental, consequential or special damages
of any kind or nature whatsoever, including but not limited to
lost profits arising from or in any way connected with this
agreement or items sold hereunder, whether alleged to arise
from breach of contract, express or implied warranty, or in
tort, including without limitation, negligence, failure to warn or
strict liability.
16. Indemnity for Infringement of Intellectual Property Rights. (a) The
Buyer shall defend and indemnify the Seller against all actions, claims,
demands, penalties and costs by 3rd parties in tort, or for infringement, or
alleged infringement, of patents, trademarks, copyrights, trade dress, trade
secret or other rights of any 3rd party resulting from the goods manufactured in
accordance with the Buyer’s specifications or based on any information
provided by the Buyer. The Buyer will defend any action against the Seller for
title, patent, trademark, copyright infringement, or other claimed by a 3rd party
at the Buyer’s sole cost and expense. (b) The Seller shall have no liability for
infringement of any patents, trademarks, copyrights, trade dress, trade secrets
or similar rights except as provided in this provision. The Seller will defend and
indemnify the Buyer against allegations of infringement of US patents, US
trademarks, copyrights, trade dress and trade secrets (“Intellectual Property
Rights”). The Seller will defend at its expense and will pay the cost of any
settlement or damages awarded in an action brought against the Buyer based
on an allegation that an item sold pursuant to this contract infringes the
Intellectual Property Rights of a 3rd party. The Seller’s obligation to defend and
indemnify the Buyer is contingent on the Buyer notifying the Seller within 10
days after sole control over the defense of any allegations or actions, including
all negotiations for settlement or compromise. If an item sold hereunder is
subject to a claim that it infringes the Intellectual Property Rights of a 3rd party,
the Seller may, at its sole expense and option, procure for the Buyer the right to
continue using said item, replace or modify said item so as to make it non-
infringing, or offer to accept return of said item and return the purchase price
less a reasonable allowance for depreciation. Notwithstanding the foregoing, the
Seller shall have no liability for claims of infringement based on information
provided by Buyer, or directed to items delivered hereunder for which the
designs are specified in combination or use in a system of any item sold
hereunder. The foregoing in this provision shall constitute the Seller’s sole and
exclusive liability and the Buyer’s sole and exclusive remedy for infringement of
Intellectual Property Rights.
17. Lien. In addition to any right of lien to which the Seller may by law be
entitled, the Seller shall have a general lien on all goods of the Buyer in the
Seller’s possession (although such goods or some of them may have been paid
for) for the unpaid price of any other goods sold and delivered to the Buyer by
the Seller under the same or other contracts.
18. Waiver. The Seller’s rights shall not be affected or restricted by any
indulgence or forbearance granted to the Buyer. No waiver by the Seller of any
breach shall operate as a waiver of any later breach.
19. Force Majeure. The Seller shall be excused from performing any of its
obligations under this Agreement which are prevented or delayed by any
occurrence not within the reasonable control of the Seller, including but not
limited to, accidents, acts of God, destruction or damage to the goods or the
Seller’s manufacturing plant, delays or failures in delivery of carriers or
suppliers, shortages of materials, strikes or other labor matters, floods,
earthquakes, fire, riots, explosions, or any regulations, rules, ordinances or
orders of any governmental authority, federal, state or local, whether such
cause exists at the date of the order or not.
20. Buyer’s Representation of Solvency. The Buyer hereby represents that
as of the signing of this Agreement it was not insolvent within the meaning of the
Uniform Commercial Code or the Bankruptcy Laws of the United States.
21. Assignment and Delegation. The rights and obligations of the parties
under this Agreement may not be assigned or delegated, except on the express
written consent of the other party to the assignment or delegation.
22. Integration. The rights and obligations of the parties and the terms and
conditions set forth herein, together with any amendments, modifications and
any different terms and conditions expressly accepted by the Seller in writing,
shall constitute a complete and exclusive statement of the terms of this
Agreement. This Agreement supersedes not only all prior agreements, but also
oral agreements made contemporaneously with the execution of this
Agreement. All such materials may not be used to supplement, explain, or
contradict the terms of this Agreement.
23. Severability. If any of these conditions or any part thereof purports to
exclude or restrict or limit any liability and such exclusion or restriction or
limitation is prohibited or rendered void or unenforceable by any legislation to
which it is subject, or is itself prohibited or rendered void or unenforceable by
any legislation to which it is subject, then the exclusion restriction or limitation on
the condition or part thereof in question shall be so prohibited or rendered void
or unenforceable and the validity or enforceability of any other part of these
provisions shall not thereby be affected.
24. Governing Law/Limitation on Actions. The terms, conditions, rights, and
obligations under this Agreement shall be construed under the laws of the State
of New York, without regard to principles of conflicts of laws. No actions arising
out of the sale of the items sold hereunder or this Agreement may be brought by
the Buyer more than two (2) years after such cause of action accrues.