1. WARRANTY
1.1. This warranty outlines Foremost Universal LP, by its General Partner Universal Industries (Foremost) Corp.’s (“Foremost”) standard warranty coverage for Foremost Smooth Wall Hopper Bottom Bins and Foremost Hopper Bottoms (the “Product”) manufactured by Foremost (the “Warranty”).
1.2. Foremost warrants the Products it manufactures are compliant with the laws of Alberta, Saskatchewan and Manitoba. Foremost warrants that the Products it manufactures are built in accordance with the designs and specifications provided by the End-User and agreed upon in the subject purchase order. The End-User 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.
1.3. Foremost warrants the Product it manufactures and the labour it performs relating to the Product against defects in materials or workmanship for a period commencing on the date of manufacture Foremost and expiring:
1.3.1. ten (10) years on structural integrity;
1.3.2. five (5) years on paint for standard farm use; and
1.3.3. one (1) year on paint for commercial use (collectively, the “Warranty Period”).
1.4. Any warranty repair work shall be warrantied to the longer of 90 days, and the end of the Warranty Period.
1.5. During the Warranty Period, for any warranty claim End-User must notify Foremost or its authorized agent within one (1) month of becoming aware of such warranty claim. Upon notification, 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.
1.6. Damages caused by normal wear and tear or misuse are not acceptable warranty claims. Esthetic flaws or painting and coating defects that do not impair operation are not acceptable warranty claims.
1.7. This Warranty is void if:
1.7.1. the Product is not installed, operated, and maintained in accordance with the Foremost’s instructions and manuals;
1.7.2. the Product is used in areas where it is exposed to corrosive or aggressive conditions inside or outside the bin such as corrosive chemicals, animal waste, ash, alkaloid, acids, salt, cement dust, or saline solutions;
1.7.3. in the case of coating failures, the failure is a result of lack of proper maintenance, damage, or failure to remove road salt or other contaminants that may have come in contact with the interior or exterior surface of the bin;
1.7.4. any damage is the result of misuse, abuse, negligence, improper site preparations, lack of proper maintenance, vacuum collapse, or accidents caused by the End-User or any third party;
1.7.5. the structure is combined with structural components from another manufacturer, is modified, altered, or has attachments not approved by the Foremost or if approved attachments have been improperly installed by the dealer, the End-User or third party;
1.7.6. the Product is damaged as a result of an inadequate foundation or foundation movement;
1.7.7. the Product walls fail due to uneven loading or unloading procedures; and
1.7.8. the Product is sold or assigned by the End-User to a third party.
1.8. THE WARRANTIES STATED IN THIS WARRANTY ARE FOREMOST’S ONLY WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. FOREMOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHERS WHICH EXCEED OR DIFFER FROM SAID WARRANTY .
2. INDEMNITY AND LIMITATION OF LIABILITY
2.1. END-USER WILL INDEMNIFY AND HOLD HARMLESS FOREMOST, AND FOREMOST AFFILIATES AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES 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 END-USER 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”). END-USER 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 END-USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, ECONOMIC LOSS, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, LOSS OF USE, LOSS OF PRODUCTION OR ANTICIPATED SAVINGS ON COSTS OR EXPENSES. IN NO EVENT, SHALL THE AGGREGATE LIABILITY OF FOREMOST OR END-USER FOR ANY CLAIM EXCEED THE GREATER OF: (A) $1,000,000; AND (B) THE AMOUNT EQUAL TO THE PURCHASE PRICE OF THE APPLICABLE PRODUCT AND SHALL BE LIMITED TO DIRECT ACTUAL EXPENSES AND DAMAGES ONLY.
2.3. GOVERNING LAW AND JURISDICTION
2.4. 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.
2.5. 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.
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