TEAM Industries, Inc. warrants that the Gen III (Model WEH) 3000# Welding Positioner, the Gen IV (Model WEHVHL) 3000# Welding Positioner, the WP440 Tabletop Positioner, and the Team Gripper (collectively referred to as the "Positioner") furnished to the original Buyer from TEAM will for a period of 12 months from the date of delivery:
In the event that any defects in material or workmanship are directed by the original Buyer within the above-stated 12 month period, TEAM Industries, Inc. will repair or replace, at TEAM Industries, Inc.'s option, any defective part or component, F.O.B. TEAM's Fabricating Plant. TEAM Industries, Inc. shall be given a reasonable opportunity to inspect such alleged defects before corrective work is undertaken at its option. The cost to TEAM Industries Inc. for any repair or replacement shall not be greater than the original charge to the Buyer for the Positioner according to the prices set forth in the contract for such Positioner.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THIS WARRANTY DOES NOT APPLY TO MALFUNCTIONS CAUSED BY ACCIDENTS, NEGLIGENCE, ALTERATION, DAMAGE, UNREASONABLE USE, MISUSE, REPAIR SERVICE BY UNAUTHORIZED PERSONS, OR NORMAL WEAR AND TEAR. THE LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND TEAM INDUSTRIES, INC. NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON OR ENTITY TO ASSUME FOR TEAM INDUSTRIES, INC., ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THE MODEL WEH 3000# WELDING POSITIONER (GENERATION III), MODEL WEHVHL 3000# WELDING POSITIONER (GENERATION IV), OR THE TEAM GRIPPER TO THE ORIGINAL BUYER. IN ADDITION, THE REMEDY PROVIDED ABOVE IS THE EXCLUSIVE REMEDY OF THE BUYER FOR FAILURE OF TEAM INDUSTRIES, INC. TO COMPLY WITH ITS LIMITED WARRANTY OBLIGATION. THE LIMITED WARRANTY IS FURTHER CONDITIONED UPON THE EQUIPMENT NOT BEING SUBJECT TO CONDITIONS BEYOND DESIGN LIMITS AND AT ALL RESPECTS HAVING BEEN MAINTAINED AND INSTALLED IN A NORMAL AND PROPER MANNER UNDER COMPETENT SUPERVISION AND NOT HAVING BEEN SUBJECTED TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE OR MISUSE WHICH WAS A CONTRIBUTING FACTOR TO THE FAILURE UNDER THE LIMITED WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TEAM INDUSTRIES, BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE DAMAGES, DAMAGES FOR ANY LOSS OF USE, LOSS OF OPERATING TIME, LOSS OF PROFITS, COST OF REPLACAEMENT POWER, COST OF REPLACEMENT FACILITIES, COST OF REPAIR OR REPLACEMENT ON NON-TEAM INDUSTRIES, INC.-SUPPLIED GOODS, OR COST OF REPLACEMENT OF NON-TEAM INDUSTRIES INC.-SUPPLIED SERVIES, INCREASES IN COST OF CONSTRUCTION, OPERATION OR MAINTENANCE OR CLAIMS OF BUYER'S CUSTOMERS OR OTHER THIRD PARTIES, THE COST OF SUBSTITUTE OR REPLACEMENT PROPERTY OR EQUIPMENT, OR FOR INJURY OR DEATH OF ANY PERSON AND FOR DAMAGES TO OR LOSS OF ANY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE MODEL WEH 3000# WELDING POSITIONER (GENERATION III), MODEL WEHVHL 3000# WELDING POSITIONER (GENERATION IV) OR THE TEAM GRIPPER (COLLECTIVELY REFERRED TO AS THE "POSITIONER"). FURTHER, THE MAXIMUM AMOUNT OF ANY LIABILITY FOR WHICH TEAM INDUSTRIES, INC. MAY BE LIABLE HEREUNDER SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS RECEIVED BY TEAM INDUSTRIES, INC. FROM BUYER FOR THE PURCHASE OF THE POSITIONER. THESE LIMITATIONS ON LIABILITY APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THE LIMITED REMEDIES PROVIDED IN THE AFOREMENTIONED LIMITED WARRANTY SECTION. THE PARTIES UNDERSTAND AND EXPRESSLY ACKNOWLEDGE THAT THE CONTRACT PRICE FOR THE POSITIONER IS BASED UPON THE LIMITATION OF LIABILITIES PROVIDED IN THE PURCHASE AGREEMENT. ANY ACTION BY BUYER AGAINST TEAM INDUSTRIES, INC. ARISING UNDER THE PURCHASE AGREEMENT OR RELATED TO THE POSITIONER MUST BE FILED WITHIN EIGHTEEN MONTHS OF THE DATE OF THE DELIVERY OF THE POSITIONER
The Buyer hereby irrevocably and unconditionally consents to the jurisdiction of the courts of the State of Wisconsin located in the County where TEAM Industries, Inc. is located for any actions, suits or proceedings arising out of or relating to the purchase of the Model WEH 3000# Welding Positioner (Generation III), Model WEHVHL 3000# Welding Positioner (Generation IV), or the Team Gripper and agrees not to commence any actions, suits or proceedings relating thereto except in such Courts. The Buyer further agrees that the law of the State of Wisconsin will govern all such actions, suits or proceedings.