Product Liability

1.1 TWB warrants that, on the Shipment Date, the Products (a) will conform to any specifications explicitly identified on the face of TWB’s quotation or acknowledgement or set forth explicitly in another document that is a part of the Agreement, and (b) will be free of defects in material and workmanship that would be discovered by following TWB’s standards of manufacture and inspection at the time of manufacture. The foregoing limited warranty is in lieu of, and TWB disclaims, all other warranties, express and implied, including warranties of design, performance or product life, warranties of compliance with buyer’s quality manuals, quality policies, inspection protocols and other policies and requirements, and the implied warranties of merchantability and fitness for a particular purpose.
1.2 The limited warranty will be void upon any action inconsistent with the proper use and handling of the Products including (a) improper handling, transportation, modification or repair, (b) accident, abuse or improper use (including loading beyond the specified maximum), and (c) improper installation, lubrication or maintenance.
2.1 If a Product does not meet the limited warranty described in Section 7.1, Buyer’s sole and exclusive remedy will be, at TWB’s choice, repair or replacement of the nonconforming Product (EXW the designated TWB facility) or a credit of a fair amount not to exceed the price paid for the nonconforming Product. To be entitled to the exclusive remedy, Buyer must (a) submit the warranty claim to TWB within one year following the Shipment Date for Products as applicable (but no later than six weeks following the first discovery of a possible nonconformity), (b) return to TWB 100% or, if agreed by TWB, a lesser but still statistically relevant percentage of the Products claimed to be defective, and (c) provide reasonable evidence in support of the warranty claim, including, if requested by TWB, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. The warranty claims limitation period for repaired or replaced Products will expire at the same time as the original warranty claims limitation period.
2.2 The remedy described in Section 8.1 is Buyer’s sole and exclusive remedy for a breach of the limited warranty and for any other claim relating to the Products regardless of the basis of Buyer’s claim, whether it is in contract, tort, express or implied warranty, negligence, strict liability or otherwise, and regardless whether any damages were caused by TWB’s negligence or by any defect in the Products. Without limiting the generality of the preceding sentence, TWB will not be liable for, and Buyer shall not assert, any of the following, whether or not due to TWB’s negligence or due to a defect in the Products, and regardless whether the basis is product warranty, delayed or incomplete delivery, negligence or any other cause: (a) consequential, incidental, indirect, special and punitive damages; (b) the cost of removing and reinstalling Products, sending Products to TWB for warranty inspection, and any other work performed on the Products; (c) damage to or the cost of making adjustments or repairs to any mechanism, equipment or machinery in which the Products; (d) loss of profits or revenue, loss of use, line shut-down, cost of capital, and cost of substituted product, facilities or services; and (e) claims of Buyer’s customers or other third parties for damages or penalties, whether or not Buyer is legally obligated to pay them. This disclaimer and exclusion will apply even if the exclusive remedy described in Section 8.1 fails its essential purpose.
2.3 An action by Buyer to enforce a warranty claim, whether by court action, arbitration or other proceeding, will be barred unless commenced within one year following TWB’s notification to the customer of TWB’s determination (for example, on the validity of the warranty claim or the availability or scope of the remedy) upon which Buyer’s claim is based.