The following is Miner Elastomer Products Corporation Warranty and Limitation of Liability.
A. Seller warrants that its products and parts, when shipped, will meet all applicable specification (unless otherwise noted in writing) and other specific product requirements (including those of performance) if any, of the agreement, will be of good quality, and will be free from defects in material and workmanship. All claims for defective products or parts under this warranty must be made in writing immediately upon discovery and, in any event, within 18 months from the date of invoice to the first user or 10,000 operating hours whichever comes first. Buyer must notify the Seller of the specific date of installation. Defective items must be held for Seller’s inspection and returned to original F.O.B. point upon request. THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES WHATSOEVER, EXPRESSED, IMPLIED AND STATUTORY. INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MARCHANTABILITY AND FITNESS.
B. Upon Buyer’s submission of claim as provided above and its substantiation, Seller Shall at its option either (¡) repair or replace its product or part at the original F.O.B. point of delivery or (¡¡) refund an equitable portion of the purchase price.
C. The foregoing is Seller’s only obligation and Buyer’s only remedy for breach of warranty and except for gross negligence, and willful misconduct, the foregoing is Buyer’s only remedy hereunder by way of breach of contract, tort or otherwise, in no event shall Buyer be entitled to incidental or consequential damages. Any action for breach of this agreement must commence within two (2) years after the cause of action has accrued.
D. BUYER FURTHER ACKNOWLEDGED THAT IT HAS CONTROL OVER THE INSTALLATION, MAINTENANCE AND OPERATION OF THE EQUIPMENT IDENTIFIED IN THIS AGREEMENT, AND ACCORDINGLY AGREES: (¡) TO PROPERLY TRAIN AND SUPERVISE ITS EMPLOYEES, AGENTS AND OPERATORS IN THE OPERATION AND MAINTENANCE OF THE EQUIPMENT; (¡¡) TO DISCLOSE TO AND TO HAVE AVAILABLE TO ITS EMPLOYEES, AGENTS AND OPERATORS A COPY OF THE MAINTENANCE, SAFETY INSTRUCTIONS AND WARNINGS PROVIDED BY SELLER; (¡¡¡) NOT TO MODIFY, ALTER OR MISUSE THE EQUIPMENT; AND (¡v) TO ACCEPT ALL RESPONSIBILITY AND LIABILITY FOR INJURY TO PERSON OR PROPERTY ARISING FROM THE REMOVAL OF SAFETY EQUIPMENT AND WARNINGS OR FROM BUYER’S DECISION NOT TO PURCHASE SAFETY EQUIPMENT RECOMMENDED BY SELLER OR ITS DISTRIBUTOR.