TERMS & CONDITIONS Bailey’s only obligation under this Limited Warranty shall be as follows: If Bailey determines, in its sole judgment, that an operational failure has occurred in a Product manufactured by Bailey, that the Product was being used properly, and that such operational failure was caused solely by defective materials or workmanship, Bailey will, at its sole option, either refund the price paid by Customer for the Product, or replace the Product or part and pay shipping charges incurred as a result thereof for the lowest round-trip transportation charges from Bailey’s Customer’s location to a designated Bailey location for return. An inspection fee, plus shipping and handling, will apply to all returns that do not result from an operational failure, as determined by Bailey. Bailey does not warrant, or provide engineering advice as to, the suitability of any Product for Customer’s application or use. Customer is solely responsible for determining whether any Product meets Customer’s needs and for compliance with all applicable laws, ordinances, regulations, rules, and standards relating to the installation, maintenance, use, disassembly, demolition, and disposal of each Product. THE FOREGOING CONSTITUTES THE EXCLUSIVE REMEDY OF CUSTOMER AND THE EXCLUSIVE LIABILITY OF BAILEY. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES NOT SPECIFICALLY PROVIDED FOR HEREIN, ARE HEREBY SPECIFICALLY EXCLUDED, EXPRESSLY DISCLAIMED, AND SHALL NOT APPLY UNDER ANY CIRCUMSTANCES. THE SALE OF BAILEY PRODUCTS UNDER ANY OTHER WARRANTY OR GUARANTY IS NOT AUTHORIZED. ANY PRODUCT SOLD BY BAILEY THAT IS NOT MANUFACTURED BY BAILEY SHALL BE SOLD “AS-IS” AND “WITH ALL FAULTS”. AS TO ANY SUCH PRODUCT, BAILEY EXCLUDES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR MEASURE OF SERVICE OR SUITABILITY. Many Products sold by Bailey are manufactured by third parties and are warranted by their manufacturers. Any third-party warranty for any item in Bailey’s printed catalog or web site may be obtained from: Bailey Warranty Department, 2527 Westcott Blvd., Knoxville, TN 37931 USA. Limitation of Liability UNDER NO CIRCUMSTANCES, WHETHER ALLEGED AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WILL BAILEY BE RESPONSIBLE TO CUSTOMER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE, OR CLAIMS FOR PERSONAL INJURY OR DAMAGE TO PROPERTY, REGARDLESS OF FAULT OR CAUSE, EVEN IF BAILEY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BAILEY BE LIABLE TO CUSTOMER FOR ANY AGGREGATED AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT(S) FOR WHICH A CLAIM IS MADE. CUSTOMER SHALL NOT BACK CHARGE, COUNTERCLAIM, OR SET-OFF ANY CLAIMS AGAINST PAYMENTS DUE ON ITS ORDERS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS BETWEEN BAILEY AND CUSTOMER. BAILEY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND, BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, BAILEY WOULD NOT HAVE ENTERED INTO ANY AGREEMENT WITH CUSTOMER FOR THE SALE OF PRODUCTS. THE TERMS OF THIS SECTION SHALL ALSO APPLY TO ANY SUPPLY AGREEMENT AND ANY ASSOCIATED SUPPLY PLAN(S) BETWEEN BAILEY AND CUSTOMER. Intellectual Property Bailey’s exclusive liability for infringement of patents, trademarks, copyrights, trade dress, trade secrets or similar rights, and Customer’s exclusive remedy for such infringement shall be as follows: Bailey shall defend and indemnify Customer, including retaining legal counsel selected by Bailey, with respect to any legal proceeding instituted against Customer by a third party for an infringement of U.S. patents, trademarks, copyrights, trade dress and trade secrets (“Intellectual Property Rights”) resulting solely from Bailey’s sale of Products that are designed and manufactured solely by Bailey. Customer shall cooperate fully with Bailey in the defense and shall take no position adverse to Bailey’s defense of such action. The foregoing undertaking shall not apply unless Bailey shall have been informed in writing as soon as practicable by Customer of any claim of infringement and shall have been given the opportunity to consent to and assume the defense thereof. Bailey shall have the right to settle any such claim as mutually agreed to by Bailey and Customer. Notwithstanding the foregoing, Bailey shall have no obligation to defend or indemnify Customer for claims of infringement based upon: (i) information or designs provided or specified in whole or part by Customer, (ii) infringements resulting from the modification, (iii) combination or use in a system of any Product, or (iv) with respect to Products not manufactured solely by Bailey. To the extent that any Product furnished under these Terms is made in accordance with drawings, samples, manufacturing specifications, or other information or content provided by Customer, Customer shall indemnify and hold Bailey harmless from any and all damages, costs and expenses arising from a claim that such Product manufactured by Bailey at the direction and design of Customer, in whole or part, or the use thereof, infringes any patent rights, foreign or domestic. Customer agrees at its own expense to undertake the defense of any such suit against Bailey or reimburse Bailey for its costs and expenses of defense, including, without limitation, all attorney’s fees, costs, and expenses, in Bailey’s discretion, brought upon such claim or claims, in addition to any other obligations of Customer as set forth herein. Any such suit may only be settled with the agreement of Bailey. Entire Agreement, Amendment, Assignment These Terms, including, without limitation, any related Product Order(s) and Product Specifications as applicable, represents the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, understandings, and communications, whether oral or written. No provision of these Terms may be amended, modified, revoked, rescinded, terminated, or waived except by a writing signed by each of the parties hereto. Customer may not assign any right or duty arising under these Terms, any Purchase Order(s), or Product Specifications, in whole or in part, without Bailey’s prior written consent. No Waiver Failure by either party to require performance by the other, or to claim a breach of these Terms, will not waive any right accruing under these Terms, nor will it affect any subsequent breach hereof, limit the effectiveness of any provision of these Terms, or prejudice either party in any subsequent action to enforce strict compliance with these Terms as to such breach or any subsequent breach.
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