- NEWay Design, Inc. (“NEWay”) warrants to Buyer that for a period of 30 Days from the date of shipment of the Manufactured Goods (“Warranty Period“), such Manufactured Goods will materially conform to NEWay’s published specifications (if any) in effect as of the date of this Agreement and will be free from material defects in material and workmanship.
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 1, NEWAY MAKES NO WARRANTY WHAT SO EVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; [OR] (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (iii )WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by the warrantyin Section 1. For the avoidance of doubt, NEWAY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.]
- NEWay shall not be liable for a breach of the warranty set forth in Section 1 unless: (i) Buyer gives written notice of the defect, reasonably described, to NEWay within 5 days of the time when Buyer discovers or ought to have discovered the defect; (ii) NEWay is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by NEWay) returns such Goods to NEWay’s place of business at NEWay’s cost for the examination to take place there; and (iii) NEWay reasonably verifies Buyer’s claim that the Goods are defective.
- NEWay shall not be liable for a breach of the warranty set forth in Section 8 if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow NEWay’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of NEWay.
- Subject to Sections 4 and 5 above, with respect to any such Goods during the Warranty Period, NEWay shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if NEWay so requests, Buyer shall, at NEWay’s expense, return such Goods to NEWay.
- THE REMEDIES SET FORTH IN SECTION 8 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND NEWAY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 1.
- Limitation of Liability.
- IN NO EVENT SHALL NEWAY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT NEWAY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL NEWAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED [NUMBER] TIMES] THE TOTAL OF THE AMOUNTS PAID TO NEWAY FOR THE GOODS SOLD HEREUNDER [OR $[AMOUNT], WHICHEVER IS LESS.
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NEITHER YOU NOR NEWAY DESIGNS IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OR ATTEMPTED USE OF THE SITE, THE SERVICES, OR THE CONTENT. THIS IS TRUE EVEN IF WE WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES