STATEMENT OF LIMITED WARRANTY AND LIABILITY
This Statement of Limited Warranty applies to all Sequoia Scientific, Inc. (“SEQUOIA”) products (“Products”). Any additional or different terms, including any terms in any purchase order, will be of no effect unless agreed to in writing by an authorized representative of SEQUOIA as reflected in a written SEQUOIA quotation.
1. Limited Warranty
SEQUOIA warrants that upon delivery by SEQUOIA (a) the Products will be free from defects in materials and workmanship, (b) the Products will perform substantially in accordance with SEQUOIA’s applicable specifications, and (c) any Products (or components or parts thereof) that are manufactured by SEQUOIA do not infringe any U.S. patent or copyright.
2. Correction of Non-Compliance
If, during the twelve months after delivery (the “Warranty Period”), any Product does not comply with the warranties set forth in 1(a) and 1(b) above, SEQUOIA will, at its option, either (a) repair the Product, (b) replace the Product, or (c) refund the purchase price paid by Customer to SEQUOIA for the Product; provided that Customer gives SEQUOIA written notice of the noncompliance within the Warranty Period and ships the Product pre-paid to SEQUOIA within one month after the end of the Warranty Period. As to any Product repaired or replaced by SEQUOIA, the Warranty Period will end upon the later of the end of the original Warranty Period or 90 days after SEQUOIA’s delivery of the repaired or replacement Product to Customer. Any Product, component, part or other item replaced by SEQUOIA becomes the property of SEQUOIA. SEQUOIA may use refurbished components in the repair of Products supplied hereunder.
SEQUOIA’s warranties shall be void and not apply if the Product has been subjected to misuse or alteration or repaired by a party not approved by SEQUOIA or the serial number on a product (if applicable) has been altered or defaced. SEQUOIA shall not be liable for normal wear and tear (such as replacement of consumables), nor for defects or failure caused by maintenance, misuse, negligence or failure resulting from non-compliance with SEQUOIA’s specifications, operating or maintenance manuals.
3. Infringement Indemnification
If any Product does not comply with the warranty set forth in 1(c) above, SEQUOIA will defend and indemnify Customer against any third-party claim asserted in any proceeding against Customer based on this noncompliance; provided that Customer gives SEQUOIA prompt written notice of the claim, SEQUOIA has exclusive control over the defense and settlement of the claim, Customer provides such assistance as SEQUOIA may request in connection with the defense and settlement of the claim (in which event SEQUOIA will reimburse the reasonable out-of-pocket costs incurred by Customer to provide such assistance), Customer does not settle the claim without the prior written consent of SEQUOIA and, upon SEQUOIA’s request, Customer returns the Non-Complying Product to SEQUOIA for modification, replacement or a refund of the purchase price paid by Customer to SEQUOIA for the Non-Complying Product, less a reasonable allowance for Customer’s use prior to return.
4. Exclusive Warranties
THE WARRANTIES SET FORTH IN PARAGRAPH 1 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED. SEQUOIA DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE) OTHER THAN THOSE SPECIFICALLY SET FORTH IN PARAGRAPH 1.
5. Exclusive Remedies
CUSTOMER’S RIGHTS AND REMEDIES SET FORTH IN PARAGRAPHS 2 AND 3 ABOVE ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER RIGHTS AND REMEDIES FOR ANY BREACH OF OR OTHER FAILURE TO COMPLY WITH ANY WARRANTY WITH REGARD TO ANY PRODUCT.
6. No Consequential Damages
SEQUOIA will not be liable for any indirect, incidental, special or consequential damages, any cover, or any loss of revenue, profit, data or use.
7. Limitations of Liability
SEQUOIA’s liability (whether in contract, tort, or otherwise; and notwithstanding any fault, negligence, strict liability or product liability) with regard to any Product (including, but not limited to, any breach of or default by SEQUOIA) will in no event exceed the purchase price paid by Customer to SEQUOIA for such Product. Further, SEQUOIA will not be liable for, or be in breach of or default on account of, any delay or failure to perform as a result of any cause, condition or circumstance beyond SEQUOIA’s reasonable control.
8. Indemnification by Customer
Customer acknowledges that the Products are designed and manufactured for use in non-critical, monitoring situations. If Customer chooses to purchase a Product or Products for use in applications that could result in damages in excess of the price of the Product if the Product does not operate properly or otherwise fails, Customer acknowledges and agrees that it is Customer’s responsibility to provide for redundancy and/or other safety or back-up measures sufficient to assure that failure of a Product(s) will not cause such damages. Customer agrees that it will defend and hold SEQUOIA harmless from any and all claims and costs (including but not limited to attorney’s fees and other costs of defense against such claims) in excess of the price of the Products arising directly or indirectly from such Customer’s use of the Products. Such indemnification is a critical part of the consideration being provided by Customer (over and above the price paid for the Product(s)) for the right to use the Products for such purposes and Customer shall not use a Product or Products for such purposes if it is unwilling or unable to provide such indemnification.
9. Statute of Limitations
Customer will not commence any action based on breach of warranty with respect to any Product more than 18 months after SEQUOIA’s delivery of such Product.
The Products may include or be delivered with certain computer programs, databases or other software that is proprietary to SEQUOIA. SEQUOIA hereby grants Customer a nonexclusive license to use such software solely for the purpose of operating Products. Customer will not: use any such software for any other purpose; modify, adapt, translate, or create derivative works based on any such software; or disassemble, decompile or reverse engineer any such software. No title to or ownership of any software or intellectual property rights are transferred to Customer.
11. U.S. Government Restricted Rights Notice
All software, data, technical information, and written materials provided by SEQUOIA are provided with restricted rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 48 C.F.R. § 252.227-7013 or in subparagraph (c)(2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. § 52.227-19, as applicable. Portions of these items may be unpublished. SEQUOIA reserves all rights under applicable copyright laws.
12. Controlling Document
In the event of any conflict or inconsistency between any provision of this Statement of Limited Warranty and any other provision of the Order, the provision of this Statement of Limited Warranty will control.
13. Controlling Law
This Statement of Limited Warranty will be governed by the laws of the State of Washington without reference to its rules relating to choice of law for the purpose of applying another jurisdiction’s law. The U.N. Convention on Contracts for the International Sale of Goods will not apply.
Revised: June 2011