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<br />Page 3 <br /> <br />11. LIMITED WARRANTY. <br />A. Seller warrants to Buyer that, for a period of thirty- <br />six (36) months from the date of Bray’s shipment <br />(the “Warranty Period”) from its manufacturing <br />facility, Products manufactured by Seller will be free <br />from defects in materials and workmanship when <br />used for the purposes for which they were designed <br />and manufactured. Seller does not warrant the Products <br />against chemical or stress corrosion or against any other <br />failure (including normal wear and tear due to operation or <br />the environment) other than from defects in materials or <br />workmanship. <br />B. THE EXPRESS WARRANTY SET FORTH IN <br />SECTION 1.11(A) IS EXCLUSIVE AND IN LIEU <br />OF ANY AND ALL OTHER WARRANTIES, <br />EXPRESS OR IMPLIED. NO WARRANTY OF <br />MERCHANTABILITY OR FITNESS FOR A <br />PARTICULAR PURPOSE IS INTENDED OR <br />GIVEN. <br />C. Products manufactured by a third party (“Third <br />Party Product”) may constitute, contain, be contained <br />in, incorporated into, attached to or packaged together <br />with, the Products. Third Party Products are not covered <br />by the warranty in Section 11(A). For the avoidance of <br />doubt, SELLER MAKES NO REPRESENTATIONS <br />OR WARRANTIES WITH RESPECT TO ANY <br />THIRD PARTY PRODUCT. <br />D. The Seller shall not be liable for a breach of the <br />warranty set forth in Section 11(A) unless: (i) <br />Buyer gives written notice to Seller of the defect <br />during the Warranty Period and, in any event, within <br />fourteen (14) days of the time when Buyer discovers or <br />ought to have discovered the defect; (ii) Seller is given a <br />reasonable opportunity after receiving the notice to <br />examine such Products and Buyer (if requested to do <br />so by Seller) returns such Products to Bray’s factory or <br />such other place that Seller shall designate on the <br />Quotation for the examination to take place there; (iii) <br />Products are stored, maintained and shipped in <br />accordance with Seller’s applicable guidelines therefor <br />(available to Buyer in product information available at <br />https://www.bray.com/resources/documents/manuals- <br />guides?page=1, please contact productspec@bray.com <br />with any questions concerning the guidelines) and (iv) <br />Seller reasonably verifies Buyer’s claim that the Products <br />are defective. Buyer shall return (freight prepaid) the <br />defective Product to Bray at Bray’s factory or such other <br />place that Seller shall designate on the Quotation no later <br />than ninety (90) days of Buyer’s initial written notice to <br />Seller of the defect. Upon Seller’s confirmation of <br />Products in breach of the warranty provided under <br />Section 11(A), Seller shall credit the Buyer’s expense <br />for shipment against the Buyer’s payment obligations <br />to Seller and, if Seller exercises its option to replace <br />such defective Products, Seller shall ship to Buyer the <br />replaced Products and the terms of Section 8(B) shall <br />apply for such replaced Products, except that Seller <br />shall be responsible for the costs and expenses for such <br />shipment. Seller shall not be obligated for any on-site <br />costs, including removal and reinstallation of any <br />warranted Products. Upon request, Buyer shall provide <br />Seller reasonable and clear access to the warranted <br />Products. <br />E. The Seller shall not be liable for a breach of the <br />warranty set forth in Section 11(A) if: (i) Buyer makes <br />any further use of such Products after giving such notice; <br />(ii) the defect arises because Buyer failed to follow <br />Seller’s oral or written instructions as to the storage, <br />installation, commissioning, use or maintenance of the <br />Products; or (iii) Buyer alters or repairs such Products <br />without the prior written consent of Seller. <br />F. Subject to Section 11(D) and Section 11(E) <br />above, with respect to any such Products during the <br />Warranty Period, Seller shall, in its sole discretion, <br />either: (i) repair or replace such Products (or the <br />defective part) or (ii) credit or refund the price of <br />such Products at the pro rata contract rate provided <br />that, if Seller so requests, Buyer shall, at Seller’s <br />expense, return such Products to Seller. THE <br />REMEDIES SET FORTH IN THIS SECTION 11(F) <br />SHALL BE THE BUYER’S SOLE AND <br />EXCLUSIVE REMEDY AND SELLER’S SOLE <br />AND ENTIRE LIABILITY FOR ANY BREACH <br />OF THE LIMITED WARRANTY SET FORTH IN <br />SECTION 11(A). <br />12. LIMITATION OF LIABILITY. <br />A. IN NO EVENT SHALL SELLER BE LIABLE <br />FOR ANY CONSEQUENTIAL, INDIRECT, <br />INCIDENTAL, SPECIAL, EXEMPLARY OR <br />PUNITIVE DAMAGES, LOST PROFITS OR <br />REVENUES OR DIMINUTION IN VALUE, <br />ARISING OUT OF OR RELATING TO ANY <br />BREACH OF THESE TERMS, WHETHER OR <br />NOT THE POSSIBILITY OF SUCH DAMAGES <br />HAS BEEN DISCLOSED IN ADVANCE BY <br />BUYER OR COULD HAVE BEEN REASONABLY <br />FORESEEN BY BUYER, REGARDLESS OF THE <br />LEGAL OR EQUITABLE THEORY (CONTRACT, <br />TORT OR OTHERWISE) UPON WHICH THE <br />CLAIM IS BASED, AND NOTWITHSTANDING <br />THE FAILURE OF ANY AGREED OR OTHER <br />REMEDY OF ITS ESSENTIAL PURPOSE. No <br />action, regardless of form, may be brought by Buyer more <br />than one (1) year after the cause of action has accrued. <br />B. IN NO EVENT SHALL SELLER’S <br />AGGREGATE LIABILITY ARISING OUT OF OR <br />RELATED TO ANY PRODUCT, WHETHER <br />ARISING OUT OF OR RELATED TO BREACH <br />OF CONTRACT, TORT (INCLUDING <br />NEGLIGENCE) OR OTHERWISE, EXCEED THE <br />TOTAL OF THE AMOUNTS PAID TO SELLER <br />FOR SUCH PRODUCT.