(a) Consumables. BOART LONGYEAR warrants for a period of one (1) year after the date of shipment of the consumable products manufactured by it, or the performance of related services, under the Contract, that such consumable products are free from defects in materials and workmanship and such services are performed in a professional and workmanlike manner; provided, however, with respect to consumable products purchased through an authorized BOART LONGYEAR distributor, the warranty period shall commence on the date of purchase by the end-user.
(b) Capital Equipment. BOART LONGYEAR warrants for a period equal to the lesser of (i) one (1) year after the date of shipment, or (ii) the initial 1,000 operating hours. BOART LONGYEAR warrants for a period of six (6) months after the performance of related services that such services are performed in a professional and workmanlike manner.
(c) General Terms. BOART LONGYEAR further warrants that, to the extent applicable, as of the date of shipment or performance, all goods manufactured by it and services performed shall conform to the written specifications agreed between the parties. THIS IS BOART LONGYEAR’S ONLY WARRANTY. BOART LONGYEAR MAKES NO OTHER WARRANTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. As a condition to BOART LONGYEAR’s warranty obligations, any goods claimed to be defective under the foregoing warranty must be returned to the facility designated by BOART LONGYEAR, which return shall be made promptly upon Purchaser’s discovery of the alleged defect. With respect to consumable products purchased through an authorized BOART LONGYEARTM distributor, the party making the warranty claim must also deliver to BOART LONGYEAR reasonable evidence of the date of purchase. BOART LONGYEAR shall perform its examination of the goods so returned by Purchaser and shall report the results of its examination to Purchaser within thirty (30) days following its receipt of such goods from Purchaser, or, if longer time is required to complete such examination, within such time as would be required through the exercise of reasonable diligence. As a further condition to BOART LONGYEAR’s obligations hereunder for breach of warranty, Purchaser shall offer its reasonable cooperation and assist BOART LONGYEAR in the course of BOART LONGYEAR’s review of any warranty claim. If requested by Purchaser, BOART LONGYEAR will promptly repair or replace at BOART LONGYEAR’s expense. Goods that are non-conforming according to BOART LONGYEAR’s warranty as set forth herein. All removal and installation of goods shall be at Purchaser’s expense. BOART LONGYEAR reserves the right to reimburse Purchaser for an amount equal to the purchase price of any defective goods in lieu of providing repaired or replacement goods. Anything contained herein to the contrary notwithstanding, in no event shall BOART LONGYEAR be liable for breach of warranty or otherwise in any manner whatsoever for: (i) normal wear and tear; (ii) corrosion, abrasion or erosion; (iii) any goods, components, parts, software or services which, following delivery or performance by BOART LONGYEAR, has been subjected to accident, abuse, misapplication, modification, improper repair, alteration, improper installation or maintenance, neglect, or excessive operating conditions; (iv) defects resulting from Purchaser’s specifications or designs or those of its contractors or subcontractors other than BOART LONGYEAR; (v) defects associated with consumable parts or materials, the lifetime of which is shorter than the warranty period set forth in this Section; (vi) defects associated with Purchaser’s specifications or designs or those of its contractors or subcontractors other than BOART LONGYEAR; (vii) 119 defects resulting from the manufacture, distribution, promotion or sale of Purchaser’s own products; or (viii) accessories of any kind used by the Purchaser which are not manufactured by or approved by BOART LONGYEAR.
(d) Sourced Goods. If the defective parts or components are not manufactured by BOART LONGYEAR, the guarantee of the manufacturer of those defective parts or components is accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the defective parts or components. BOART LONGYEAR agrees to assign to the Purchaser on request made by the Purchaser the benefit of any warranty or entitlement to the defective parts or components that the manufacturer has granted to BOART LONGYEAR under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
(e) Limitation on Liability. Except as provided for herein, in no event will BOART LONGYEAR be liable for any indirect, incidental, special, consequential, punitive or similar damages including, but not limited to, lost profits, loss of data or business interruption losses. In no event will the total, aggregate liability of BOART LONGYEAR under the Contract exceed the value of the Contract under which liability is claimed. The liability limitations shall apply even if BOART LONGYEAR has been notified of the possibility or likelihood of such damages occurring and regardless of the form of action, whether in contract, negligence, strict liability, tort, products liability or otherwise. The parties agree that these limits of liability shall survive and continue in full force and effect despite any termination or expiration of any Contract. Any action by Purchaser against BOART LONGYEAR must be commenced within one year after the cause of action has accrued. No employee or agent of BOART LONGYEAR is authorized to make any warranty other than that which is specifically set forth herein. The provisions in any specification, brochure or chart issued by BOART LONGYEAR are descriptive only and are not warranties.