Operating instructions

Unless otherwise agreed in writing by Process Heating Company (“PHCo”), all of the following terms & conditions shall apply t
o its transaction with you (the
“buyer”): 1. LIMITED WARRANTY; DISCLAIMERS. PHCo warrants that the goods sold under this contract shall be free from defects in workma
nship and materials
at the time delivery is tendered. If there is discovered any failure of goods to conform to this warranty within one (1) yea
r after tender of delivery (five (5)
years in the case of immersion type heating elements other than drop
-in style elements), and if Buyer notifies PHCo in writing o
f such fact within thirty (30)
days following such discovery, PHCo at its own expense either will repair the defective item, or replace it, or refund to Buy
er the purchase price paid for that
item (with choice between repair, replacement or refund to be made solely by PHCo). The foregoing limited warranty and remed
y are exclusive of all other
warranties, express or implied, and constitute PHCo’s exclusive liability, and Buyer’s exclusive remedy, on account of any cl
aim relating to any item sold.
PHCo DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. If PHCo should elect to repair or replace a defective item and if for any reason the repair or replacement should fail in its essential purpose (which is to provide Buye
r with a non-defective item), then
PHCo’s liability nevertheless shall be limited to the purchase price charged by PHCo for the goods. PHCo shall have no liabi
lity on account of any claim as-
serted under principles of negligence or other tort, breach of any statutory duty, indemnity or contribution, or on any other
basis, if PHCo’s liability on account
of such claim would exceed or in any respect differ from its liability under forgoing limited warranty and exclusive remedy. 2. LIABILITY OF PHCo UNDER THE FOREGOING LIMITED WARRANTY SHALL EXIST ONLY IF: a. The goods are installed, operated and tested in accordance with the PHCo approved installation and operation instruction. b. The goods are used and maintained in conformity with installation and operation instructions approved or published by PHC
o.
c. Written authorization must be given by PHCo before any warranty work is done. The above limited warranty shall be void and no longer in effect if the goods are subject to abuse, strain, impact or loading
that is greater than their normal.
3. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL PHCO OR ANYONE ELSE INVOLVED IN THE MANUFACTURE OR SALES OF THE GOODS BE LAIBLE TO BUYER OR
OTHERS FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
, INCLUD-
ING BUT NOT LIMITED TO LOST PROFITS, EVEN IF PHCO HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES
, OR FOR ANY
DAMAGES OR SUMS PAID BY BUYER OR OTHER THIRD PARTIES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM FOR ANY SUCH DAMAGES IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR
OTHER
TORT, BREACH OF STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR ANY OTHER BASIS. 4. AUTHORITY OF PHCo’s AGENTS. No agent, employee or representative of PHCo has any authority to bind PHCo to any other affirmation, representa- tion, promise or warranty concerning the goods sold under this contract, unless it is in writing and included as part of the
terms of this contract.
5. MODIFICATION OF WAIVER. No subsequent waiver or modification of this Limited Warranty and Liability shall be effective un
less the same is in writ-
ing and signed by the party against whom such waiver or modification is asserted. No waiver in any one instance shall consti
tute a waiver of the same or any
other term or condition on any subsequent occasion. None of the express terms of this Limited Warranty and Liability may be
waived or varied by course of
dealing or usage of trade. 6. DISPUTES. This agreement shall be governed by the laws of the State of Washington without reference to its choice of law
rules. Any action to enforce
any of the terms or conditions of this agreement may be commenced or maintained at the option of either party in any federal
or state court located in King
County, Washington having jurisdiction over the matter, and both parties consent in advance to the exercise by such courts of
jurisdiction over them person-
ally. No action by either party arising out of or relating to this contract (including any action based upon principles of c
ontract, tort or otherwise) may be com-
menced more than one (1) year after the cause of the action has accrued, and any action commenced by a party thereafter shall
be dismissed at the instance of
the other party.