Limited Warranty. Warranty Disclaimer. Focus Technologies warrants to the original purchaser (“Buyer”) that the Equipment will be free from material defects in material and workmanship under normal use. The foregoing warranty is subject to the proper installation, opening and maintenance of the Equipment in accordance with installation instructions and the operating manual supplied to Buyer. Warranty claims must be made by Buyer in writing within 30 days of the manifestation of a problem. Focus Technologies’ sole obligation under the foregoing warranty is, at Focus Technologies’ option, to repair, replace or correct any such defect that was present at the time of delivery or to remove the Equipment and to refund the purchase price to Buyer. The Warranty Period shall run from the delivery of the Equipment and continues for 90 days thereafter.
Except as specified in this warranty section, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, or arising from a course of dealing, law, usage or trade practice, are hereby excluded and are expressly disclaimed by Focus Technologies. To the extent an implied warranty cannot be excluded, recovery for any breach of such warranty is limited to the remedies set forth herein. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
2. Limitation of Remedy. The remedies of Buyer set forth in section 1 above are exclusive and the total liability of Focus Technologies with respect to this Agreement, whether based on contract, warranty, negligence, indemnification, strict liability or otherwise, shall not exceed the purchase price paid by Buyer for the Equipment upon which liability is based. In no event shall Focus Technologies be liable for consequential, incidental or special damages. Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will Focus Technologies be liable for any lost revenue, profit, business interruption, loss of capital or for special indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability or whether arising out of the use or inability to use the Equipment or otherwise.
3. Indemnity. Buyer shall indemnify and hold Focus Technologies, its parent, subsidiaries, affiliates, employees, consultants and representatives harmless from any loss, damage claim, cost or expense (including attorneys fees) directly or indirectly arising from the inspection, pick-up, purchase delivery or use of the Equipment or arising from Buyer’s inability to use or improper use of the Equipment either separately or in combination with any other equipment or for any other cause.
4. Entire Agreement. This instrument comprises the entire agreement between Buyer and Focus Technologies; and it shall not be amended, altered or changed except by a written agreement executed by the parties hereto.
5. Waiver. No failure on the part of Focus Technologies to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Focus Technologies of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy.
6. Severability. If any term or provision of this Agreement is found invalid or unenforceable for any reason, the remaining provisions of this Agreement shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
7. Governing Law. This Agreement shall be subject to and construed in accordance with the laws of the State of California without reference to its conflict of law rules. The venue and jurisdiction of any litigation related to, arising out of, or connected with this Agreement, shall be exclusively in a state or federal court located in Los Angeles County, California. The prevailing party in any dispute between Buyer and Focus Technologies shall be awarded its attorneys’ fees and costs incurred therein, including any on appeal.
8. This Agreement shall be binding up on and inure to the benefit of the parties and their respective heirs, successors, licensees, and permitted assigns.
