Product Selection and Suitability
All products and documents provided by RCS, Inc. are for further investigation by Buyers and Users having technical expertise. The Buyer and User, through their own analysis and testing, is solely responsible for making the final selection of the system and components and assuring that all performance, endurance, maintenance, safety and warning requirements of the application are met. The user must analyze all aspects of the application, follow applicable industry standards, and follow the information concerning the product in the current product catalog and in any other materials provided from RCS, Inc. All clerical errors are subject to correction. Many states and localities have codes and regulations governing sales, construction, installation, and/or use of products for certain purposes, which may vary from those in neighboring areas. While RCS attempts to assure that its Products (“Product”) comply with such codes, it cannot guarantee compliance, and cannot be responsible for how the Product is installed or used. As these Products are dynamic and versatile, RCS shall not be responsible for how Products are used or installed and the Product’s conformance to local or regional codes or regulations. Review the Product materials and application, relevant code, regulations or ordinances, to be certain that the Product, its installation, and use will satisfy these requirements. In no event will RCS be responsible for any loss or damage arising out of Purchaser’s improper selection, misapplication or misuse of a Product.
Limited Warranty and Remedy
Seller warrants to the original purchaser that the products sold hereunder shall be free from defects in workmanship and material upon delivery under normal use and service for a period of ten (10) years from the date of shipment. The liability of Seller under this warranty is limited to replacing, repairing, or issuing credit (at cost, FOB factory and at Seller’s discretion) for any part or parts which are returned by Buyer during such period provided that (a) Seller is notified in writing within ten (10) days following discovery of such defects by Buyer, or within ten (10) days after such defects should reasonably have been discovered, whichever is less, (b) the defective unit is returned to Seller, transportation charges prepaid by Buyer, (c) payment in full has been received by Seller for said products, (d) Seller’s examination of such unit shall disclose to Seller’s satisfaction that such defects have not been caused by misuse, neglect, improper installation, repair, unauthorized modification, Buyer’s design, alteration, act of God, or accident. Seller makes no warranty, expressed or implied with respect to the specific application for which Seller’s products are used or with respect to the design or operation of an entire system, in which Seller’s products sold hereunder are mere components, nor does Seller make any warranty, expressed or implied, with respect to other components of Seller’s product, where such components are warranted separately by their respective manufacturers. Repair or replacement of the products sold hereunder, or refund of the purchase price as provided in this warranty, is the Buyer’s exclusive remedy. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel for site travel and diagnosis under this warranty shall be borne by Buyer unless accepted in writing by Seller. This exclusive remedy will not be deemed to have failed its essential purpose so long as Seller is willing and able to repair or replace any defective product or refund the purchase price, in the prescribed manner. THIS LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. BUYER’S FAILURE TO PAY THE FULL AMOUNT DUE WITHIN SIXTY (60) DAYS OF DATE OF INVOICE SHALL OPERATE TO RELEASE SELLER FROM ANY AND ALL LIABILITY OR OBLIGATION ARISING PURSUANT TO ANY WARRANTY, EXPRESSED OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, MADE IN CONNECTION WITH ANY CONTRACT FORMED HEREUNDER. BUYER AGREES THAT SUCH FAILURE TO PAY SHALL CONSTITUTE A VOLUNTARY WAIVER OF ANY AND ALL SUCH WARRANTIES ARISING PURSUANT TO SUCH CONTRACT. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND AND ANY REPAIR OR ATTEMPT TO REPAIR PRODUCTS BY ANYONE OTHER THAN AN AUTHORIZED REPRESENTATIVE OF SELLER AUTOMATICALLY VOIDS ANY WARRANTY OF THOSE PRODUCTS. ANY ORAL OR WRITTEN STATEMENT CONCERNING THE PRODUCTS INCONSISTENT WITH THE WARRANTY CONTAINED HEREIN SHALL BE OF NO FORCE OR EFFECT.
Limitation of Liability
Under no circumstances shall Seller be liable for any indirect, consequential, collateral, special or incidental damages (including without limitation, increased manufacturing costs, loss of profits, or goodwill) whether such claim is based on contract, negligence, strict tort, warranty or any other basis. Seller’s liability shall, in no event, exceed the purchase price of the particular products with respect to which a claim is made. Seller does not insure Buyer under any of its insurance policies, including liability or workers’ compensation. Seller will not provide Buyer with indemnification for any matter nor does Seller agree to provide Buyer with contribution for any damages. Seller has no obligation to Buyer to direct Seller’s insurance companies to waive their right of subrogation against Buyer in the event of an insured loss.
Limitation of Actions
Any actions or claims by Buyer under this Agreement shall be brought within 120 months after shipment of the products sold by Seller hereunder or shall be deemed barred by waiver.
Nuclear Limitation of Use
Unless otherwise agreed in writing by a duly authorized representative of Seller, products provided hereunder are not sold or intended for use in any nuclear or nuclear related applications. Buyer (i) accepts the restriction set forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Seller from all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from the use of products in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.