Subject to the limitations and disclaimers set forth below, DryWired, LLC (“DryWired”) warrants that for the Applicable Warranty Period (as defined below), the DryWired® product will be free of defects in materials at the time of shipment and will perform in the manner prescribed in the relevant Product Data Sheet (PDS) portion entitled “Product Characteristics.” This is the only warranty or representation and the sole basis for liability respecting quality, performance, defects, repair, delivery and replacement of the Products. In the event that the DryWired® product fails as a result of a defect in materials within the Applicable Warranty Period, DryWired will replace, at DryWired’s sole expense, the DryWired® product covered by this limited warranty.
The replacement of any product pursuant to this warranty is the purchaser’s sole and exclusive remedy for the products failure. DRYWIRED’s UNDERTAKING TO REPLACE SUCH PRODUCTS IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. Drywired’s liability out of the sale, use or operation of the Products, whether on warranty, contract, negligence or otherwise (including claims for consequential or incidental damages) shall not in any event exceed the cost of furnishing a replacement for the defective Product as herein provided. The foregoing shall constitute Drywired’s sole liability to the purchaser. This remedy may not be deemed to have failed of its essential purpose so long as Drywired has determined in its sole discretion that the product is defective and Drywired is willing and able to replace any such defective product or part. This limited warranty is extended only to the original purchaser of the product. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
The warranty set forth above is LIMITED and does not cover: (i) failure of the product if the product was not stored, shipped, transported, mixed, cured, used, or applied to the substrate, according to the application parameters described in the application instructions and PDS which are shipped with each product order and available at www.drywired.com or by fax by calling 310-855-1201; (ii) failure of the product if the product is mixed with another product or if another product is applied over or under the DryWired product; (iii) misuse of the product or any use other than the prescribed uses set forth in the application instructions and PDS, including but not limited to the application of any other paint or applicant over or under the DryWired® product; (iv) damage to the substrate caused by the product; (v) labor costs associated with replacing the defective product, (vi) the application of the product, or (vii) the mis-use or defective application of the product. It shall be the sole responsibility of the Purchaser to ensure that the substrate is (i) free from any and all defects, (ii) free from any products that will conflict or render the Drywired Product defective, and (iii) suitable for the application of the Drywired Product. In the event of a claim, Purchaser shall also be required to provide evidence documenting the application procedure and any alleged failure of the product. Such evidence shall be provided concurrently with the claim.Many factors beyond Drywired’s control can affect the use and performance of the Product in a particular application including the conditions of storage, the conditions of the substrate and existing environmental conditions during and after the application of the Product. Since these factors are uniquely within the users knowledge and control, this product warrant expressly excludes Product that is not applied according to the detailed product instructions and PDS, including ideal environmental and substrate conditions before, during and after the product application. IN NO EVENT WILL DRYWIRED BECOME LIABLE FOR DAMAGES TO SUBSTRATE, INJURIES TO PERSON OR PROPERTY, DEATH OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, ECONOMIC LOSS, OR PUNITIVE DAMAGES ARISING FROM THE USE OF THIS PRODUCT. DRYWIRED’S SOLE OBLIGATION UNDER THIS WARRANTY IS TO REPLACE THE DEFECTIVE PRODUCT.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR AS PROHIBITED UNDER THE MAGNUSON-MOSS WARRANTY ACT, THE PURCHASER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING TO THE APPLICATION OR USE OF THE DryWired® PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WHATSOEVER AS TO THE FITNESS FOR A PARTICULAR USE OR THE MERCHANTABILITY OF THE PRODUCT. THIS LIMITED WARRANTY IS GIVEN IN PLACE OF, AND NOT IN ADDITION TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The parties intend this writing to be the final expression of the product warranty and it is intended also as a complete and exclusive statement of the terms of the Product warranty. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this warranty. No agent, employee, or representative of Drywired has any authority to bind Drywired to any affirmation, representation, or warranty concerning the goods sold under this contract, and unless an affirmation, representation, or warranty made by an agent, employee, or representative is specifically included within this contract, it will not be enforceable by Purchaser. Any modification of this contract that relates in any wayto a warranty must be in writing and signed by Drywired; otherwise the purported modification will be null and void.
Applicable Warranty Period:
The limited warranty set forth above is effective for TEN(10) years following the date that the DryWired® product is initially purchased.
In the event of an alleged defect, Purchase must immediately notify DryWired in writing (ADD DRYWIRED ADDRESS. Attention LEGAL) of the alleged defect. The notification shall include the product name, purchase date and any and all information available relating to the location and application of the product. Upon request, Drywired mayrequire that the defective productbe made available for inspection.
Dispute Resolution. The Parties hereby agree that any and all controversies, claims, or disputes with anyone (including Contractors, officers, directors, shareholders or agents), whether brought on an individual, group, or class basis, arising out of, relating to, or resulting from the Party’s performance under this Agreement including any breach of this Warranty, shall be subject to the following dispute resolution procedure:
- First, the parties agree to make reasonable attempts to resolve such disputes upon giving notice per this agreement. Any such notice shall be given pursuant to this agreement, with the Title “Contract Dispute Notice” and include a short statement of its factual basis; and,
- Second, should informal resolution not resolve the dispute, the Parties agree to submit the dispute to a non-binding mediation with each side to bearing its own fees and costs; and,
- Finally, should the non-binding mediation not resolve the dispute, the parties agree to submit the dispute to binding arbitration. Binding arbitration shall be conducted under the arbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and pursuant to California law. The Parties agree to waive any right to a trial by jury. Each agrees that any arbitration will be administered JAMS Endispute, and that the neutral arbitrator will be selected mutually by agreement of the parties, or, if the parties cannot agree, the selection of the arbitrator will be made in a manner consistent JAMS Arbitration Rule 15 (Arbitrator Selection).The parties agree that any arbitration under this Agreement shall be conducted in Los Angeles County, California. The parties agree that the Arbitrator shall not have jurisdiction to enforce an award of attorney fees or discovery. Each side to bear its own attorney fees and costs. No claim will be considered by the Arbitrator in the absence of such prior notice to the other Party as specified in part 1 herein, unless the Arbitrator determines that no Party has been unfairly prejudiced by such lack of formal notice or all Parties agree that such consideration is appropriate notwithstanding the lack of prior notice. Arbitration shall be the sole, exclusive and final remedy for any dispute between the Parties. The arbitration proceedings shall be as confidential and private to the extent permitted by law. To that end, the parties shall not disclose the existence, content or results of any proceedings and materials submitted in connection with such proceedings shall not be admissible in any other proceeding, provided, however, that this provision shall not prevent a petition to vacate or enforce or enforcement of an arbitral award, and shall not bar disclosures required by law.