VACUUM TRUCK WARRANTY – CANADA
1.1: This Vaccum Truck Warranty (the “Warranty”) outlines Foremost’s standard warranty coverage for all products (including all products, substances, property, equipment, parts, goods, commodities and materials that are sold by Foremost to Purchaser under this Contract hereinafter referred to as the “Products”). Products also include services to be performed by Foremost in connection with design, manufacturing, installation and service of Products.
1.2: For the warranty period (the earliest of: (a) 12 months from the date of first operation; or (b) 2,000 hours of operation provided that where hours are not duly tracked, (a) shall apply, hereinafter referred to as the “Warranty Period”), and as its sole and limited warranty hereunder and at law, under this Warranty Foremost warrants that all Products manufactured by Foremost hereunder shall unless otherwise specifically permitted, be new, of good and merchantable quality, be free from any defects and failures, latent or patent, be in accordance with the designs and specifications, and shall be free of any liens, encumbrances or claims. Foremost does not warrant fitness for purpose. Esthetic flaws or painting and coating defects that do not impair operation are not acceptable warranty claims. Damages caused by normal wear and tear or Purchaser misuse are not acceptable warranty claims.
1.3: Foremost does not warrant that the Products it manufactures are compliant with the laws of jurisdictions outside the Province of Alberta. Foremost warrants that the Products it manufactures are built in accordance with the designs and specifications provided by the Purchaser and agreed upon in the subject purchase order. Purchaser will be responsible for ensuring that the designs and specifications provided to Foremost are compliant with the jurisdiction in which the Product will be used.
1.4: For any warranty claim of which Purchaser duly notifies Foremost or its authorized agent during the Warranty Period, Foremost, at its sole risk and expense, shall at its discretion correct, repair or replace any and all Products that do not comply with the Warranty. All warranty claims shall be in writing and in sufficient detail so as to enable Foremost to clearly identify the claims. Purchaser shall be responsible for all costs associated with returning the Products to Foremost’s or its authorized agent’s facility for service or where that is not practical, any and all costs reasonably incurred by Foremost in attending the Products for servicing.
1.5: Several components, such as engines, transmissions, axles, compressors, trucks, chassis, hydraulic pumps, tires etc., which are used in the manufacture of the Products, have warranties provided by the original equipment manufacturer. Foremost does not separately warrant such items, however, Foremost will provide reasonable assistance to Purchaser to make claims for warranties as provided by such original equipment manufacturers.
1.6: Any warranty repair work shall be warrantied to the longer of 90 days, and the end of the Warranty Period. All after warranty repairs shall be subject to Foremost’s standard Parts and Services Terms and Conditions.
2. INDEMNITY AND LIMITATION OF LIABILITY
2.1: PURCHASER WILL INDEMNIFY AND HOLD HARMLESS FOREMOST AGAINST ANY AND ALL CLAIMS, SUITS, ACTION PROCEEDINGS (WHETHER ACTUAL OR THREATENED), LOSSES, DAMAGES, COSTS AND EXPENSES, FINES, CHARGES AND/OR PENALTIES, INCLUDING SOLICITORS FEES AND DISBURSEMENTS (ON A SOLICITOR AND HIS OWN CLIENT BASIS), NOT DUE TO FOREMOST’S BREACH OF WARRANTY, INCLUDING BUT NOT LIMITED TO BREACH OF THIRD PARTY INTELLECTUAL PROPERTY, DAMAGE TO PROPERTY, OR THE PRODUCTS, INJURY OR DEATH TO PURCHASER PERSONNEL OR THIRD PARTIES, RESULTING FROM (OR WHICH MAY LIKELY HAVE RESULTED FROM) THE USE, MISUSE, MODIFICATION, FAILURE TO PROPERLY MAINTAIN, OVER-USE, OVERLOADING OR USE IN ABNORMAL CONDITIONS OF THE PRODUCTS AND REGARDLESS OF JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF FOREMOST (“INDEMNIFIED CLAIMS”). PURCHASER HEREBY RELEASES, REMISES AND FOREVER DISCHARGES FOREMOST IN RESPECT OF ANY AND ALL INDEMNIFIED CLAIMS.
2.2: NOTWITHSTANDING ANY PROVISION OF THIS WARRANTY OR ANY OTHER OBLIGATION OF FOREMOST, EXPRESS OR IMPLIED, TO CONTRARY, FOREMOST SHALL NOT BE LIABLE IN ANY EVENT, WHETHER IN CONTRACT OR IN TORT, TO THE PURCHASER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, ECONOMIC LOSS, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, LOSS OF USE, OR ANTICIPATED SAVINGS ON COSTS OR EXPENSES. IN ANY EVENT FOREMOST’S LIABILITY TO PURCHASER SHALL BE LIMITED TO THE LESSER OF ONE-THIRD OF THE PRICE PAYABLE BY PURCHASER STATED IN THIS WARRANTY AND THE FAIR MARKET VALUE OF THE PRODUCT AT THE TIME OF THE CLAIM.
3. GOVERNING LAW AND JURISDICTION
3.1: This Warranty shall be governed by and interpreted pursuant to the laws of the Province of Alberta and the federal laws of Canada as applicable therein, without regard to its rules on conflict of laws. The United Nations Convention on the International Sale of Goods shall not apply.
3.2: The parties hereby agree that any dispute, action or proceeding hereunder shall be brought in the courts of the Province of Alberta and the parties consent and submit to the jurisdiction of the courts of the Province of Alberta.