notified
Company and, upon inspection by Company, Company has found the Product to be
defective. In the event Distributor arranges for a Product to be repaired or
servic ~d by a person or entity other than by a service facility approved by
7
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Company, such action shall be solely at the expense of Distributor and shall
effectively terminate any Company warranty for such Product.
3.12
Product Returns. All returns of non-defective Products shall be subject
to Company's standard return policy for commercial and industrial products
attached hereto as Exhibit" ".Company shall have no warranty obligations
whatsoever including the replacement of any Product pursuant to this Article 3
unless all of the provisions of Company's Return Policy then in effect have been
met by Distributor.
3.13
Exclusive Remedy. THE REPAIR OR REPLACEMENT OF ANY NONCONFORMING OR
DEFECTIVE PRODUCT, SHALL CONSTITUTE THE
SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR (AND SHALL
CONSTITUTE FULFILLMENT OF ALL OBLIGATIONS OF COMPANY
HEREUNDER) FOR THE BREACH OF SUCH WARRANTY BY COMPANY OR
ANY LIABILITY (INCLUDING WITHOUT LIMITATION ANY LIABILITY
FOR NEGLIGENCE) OF COMPANY WITH RESPECT TO THE PRODUCTS
AND SERVICES COVERED BY THIS AGREEMENT AND ALL OTHER
PERFORMANCE BY COMPANY UNDER THIS AGREEMENT.
THE PARTIES AGREE THAT COMPANY EXTENDS LIMITED EXPRESS
WARRANTIES SOLELY TO ORIGINAL END-USERS OF THE PRODUCTS
AND NOT TO DISTRIBUTOR. COMPANY MAKES NO EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND TO DISTRIBUTOR WITH RESPECT
TO THE AURA TECHNOLOGY OR THE USE THEREOF, INCLUDING
WITHOUT LIMITATION THE PRODUCTS AND ANY COMPONENTS
THEREOF INCORPORATING THE AURA TECHNOLOGY OR
MANUFACTURED BY THE USE THEREOF. ALL EXPRESS OR IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION THE EXPRESS OR
IMPLIED WARRANTY (I) THAT THE AURA TECHNOLOGY OR THE USE
THEREOF, INCLUDING WITHOUT LIMITATION THE PRODUCTS AND
ANY COMPONENTS THEREOF INCORPORATING THE AURA
TECHNOLOGY OR MANUFACTURED BY THE USE THEREOF WILL BE
FREE FROM CLAIMS OF PATENT INFRINGEMENT, INTERFERENCE, OR
UNLAWFUL USE OF PROPRIETARY INFORMATION OF ANY THIRD
PARTY, OR (II) OF THE ACCURACY, RELIABILITY, TECHNOLOGICAL OR
COMMERCIAL VALUE, COMPREHENSIVENESS OR MARKETABILITY OF
THE AURA TECHNOLOGY, THE PRODUCTS, OR THE COMPONENTS
THEREOF OR ITS SUITABILITY OR FITNESS FOR ANY PURPOSE
WHATSOEVER ARE HEREBY DISCLAIMED AND EXCLUDED.
DISTRIBUTOR FURTHER ACKNOWLEDGES THAT THERE ARE NO
WARRANTIES IMPLIED BY CUSTOM OR USAGE IN THE TRADE
BETWEEN DISTRIBUTOR AND COMPANY THAT HAVE BECOME A PART
OF THIS TRANSACTION. ANY ACTION FOR A BREACH OF ANY OF
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
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MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION HAS ACCRUED.
3.14
No Assurances. Distributor acknowledges that:
(a)
Wind speeds are extremely variable and in wind conditions insufficient
to provide torque levels equal to or exceeding the minimum torque guideline
requirements of the Products established by the manufacturer, such Products may
be unable to produce power levels equal to their maximum rating;
(b)
Company has made no representations to Distributor and Distributor has
received no assurances, that: (i) its business relationship will continue with
Company beyond the