The Wittern Group (the “Seller”) warrants that all new Intelligent Dispensing Solutions products (the “Products”), or repaired or replaced Products furnished to you (the “Buyer”) pursuant to this section, will be free under normal use and service from any defects in workmanship or materials, provided that any allegedly defective Product has not been altered, misused, neglected, or damaged through causes unconnected with its manufacture. This warranty shall extend solely to Buyer and shall terminate as to each Product upon the expiration of twelve (12) months from the original date of purchase. If within such period any Product shall be proven to Seller’s satisfaction to be defective, the defective Product shall be repaired or replaced at Seller’s option. Such repair or replacement of any defective Product shall constitute a fulfillment of all liabilities, and shall be Buyer’s exclusive remedy, with respect to such Product. Under no circumstances will credit be allowed for unauthorized work on any Product.
To exercise its exclusive remedy provided under this section, Buyer must promptly notify Seller in writing of any claimed Product defect within seven (7) days of the appearance thereof. If Seller repairs or replaces any Product for which a claim has been made, Seller will ship such replacement or repaired Product to Buyer within fourteen (14) days after receiving the allegedly defective Product. Any Product replaced hereunder shall become the sole and exclusive property of Seller. Unless otherwise specified, Seller shall bear the cost and risk of transport of replacement or repaired Products provided by Seller. Seller, in its sole discretion, may hire, contract, or sub-contract with third parties to provide some or all warranty repair work and related services.
The warranty provided under this section is void if failure of the Product is (i) the result of occurrences during shipment of the Product from or to Seller, (ii) caused by the use or operation of the Product in an application or environment other than that intended or recommended by Seller, (iii) caused by modifications not made or authorized by Seller, or (iv) the result of the Product being subjected to unusual physical or electrical stress.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH SELLER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR AGENTS AND REPRESENTATIVES (HEREINAFTER REFERRED TO COLLECTIVELY AS “SELLER”), EXPRESSLY DISCLAIMS. Except as expressly provided above, SELLER provides no warranty, whether express, implied, statutory, or otherwise.
WITHOUT LIMITATION TO THE FOREGOING, SELLER DOES NOT PROVIDE, AND UNDER NO CIRCUMSTANCES SHALL BE RESPONSIBLE OR LIABLE FOR, ANY (I) EMERGENCY MEDICAL OR OTHER FIRST RESPONDER SERVICES, (II) DIRECT MEDICAL CARE, (III) MEDICAL ADVICE, OR (IV) MEDICATIONS, DRUGS, NARCOTICS, OR OTHER MEDICINES OR SUPPLIES STORED IN THE PRODUCTS. ONLY PHYSICIANS, PHARMACISTS, OR OTHER LICENSED AND AUTHORIZED LEARNED INTERMEDIARIES MAY PRESCRIBE OR PROVIDE SUCH MEDICATIONS, DRUGS, NARCOTICS, OR OTHER MEDICINES OR SUPPLIES AND THE DIRECTIONS RELATED THERETO. SELLER PROVIDES NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND WITH RESPECT TO ANY SUCH THIRD PARTY SERVICES OR MATERIALS, INCLUDING BUT NOT LIMITED TO ANY DIRECT OR INDIRECT CONSEQUENCES OF ANY FAILURE TO USE OR ADMINISTER ANY MEDICATIONS, DRUGS, NARCOTICS, OR OTHER MEDICINES OR SUPPLIES STORED IN THE PRODUCTS, WHETHER OR NOT RELATED TO ANY MALFUNCTION OF THE PRODUCTS.
IT IS EXPRESSLY UNDERSTOOD THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL FEDERAL AND STATE LAWS AND REGULATIONS CONCERNING THE ACQUISITION, STORAGE, DISTRIBUTION, CONTROL, AND RECORDKEEPING OF ANY MEDICATIONS, DRUGS, NARCOTICS, OR OTHER MEDICINES OR SUPPLIES THAT SELLER ELECTS TO STORE IN THE PRODUCTS AND FOR PROPER USE OF SUCH PRODUCTS IN ACCORDANCE WITH ANY APPLICABLE INSTRUCTIONS. IT IS FURTHER EXPRESSLY UNDERSTOOD THAT ANY TECHNICAL ADVICE FURNISHED BY SELLER WITH REFERENCE TO THE USE OF THE PRODUCTS IS GIVEN GRATIS AND IS ACCEPTED BY BUYER ONLY AT BUYER’S OWN RISK. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR ANY ADVICE GIVEN OR RESULTS OBTAINED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS, WHETHER ALONE OR IN COMBINATION WITH OTHER ARTICLES OR MATERIALS, OR IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COST, GENERAL EFFECTIVENESS, OR SUCCESS OR FAILURE, REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER WITH RESPECT TO THE USE OF SUCH PRODUCTS BY WAY OF TECHNICAL ADVICE OR OTHERWISE.
To the fullest extent allowed by applicable law, Buyer shall defend, indemnify, and hold Seller harmless against any and all losses, damages, costs, or expenses of any kind (including reasonable attorneys’ fees, court costs, and other costs arising from fines, civil penalties, personal injury to, or damage to the property of third parties) arising from or related to (i) Buyer’s purchase or use of the Products or (ii) Buyer’s recklessness, willful misconduct, or violation of law.
LIMITATION OF LIABILITY
Subject to and without mitigation of any other provision herein, except in the event of gross negligence or willful misconduct, SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST OR DIMINISHED PRODUCTION, BUSINESS INTERRUPTION, OR CLAIMS OF CUSTOMERS OR OTHER THIRD PARTIES, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE. To the maximum extent permitted by law, SELLER’S aggregate liability to BUYER shall not exceed the amount actually paid by BUYER for the Products.
These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.