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MESSER REPAIR & FABRICATING, LLC
Limited Warranty and Terms and Conditions of Sale
The
following limited warranty, and terms and conditions of sale (the “Limited Warranty”) apply to all
equipment, products, parts, and goods (any of the foregoing are referred to herein as “Equipment”) sold by
Messer Repair & Fabricating, LLC (“Messer”):
1.
Covers All Equipment. Each purchase of Equipment by a purchaser is expressly made conditional on
purchaser’s assent to the terms and conditions in this Limited Warranty.
2.
Limited Warranty. Messer warrants that for a period of 24 months from the date of purchase, the Equipment
will remain free from defects in material and workmanship under normal use and proper maintenance.
Messer’s obligation under the warranty shall be limited to the repair or replacement (at Messer’s option) of the
Equipment. Notwithstanding the foregoing, if the Equipment is used for commercial purposes or is rented or
leased out by the purchaser, then, the foregoing warranty shall only be for a period of 180 days and not 24
months.
3.
No Warranty For Equipment Components From Third Parties. Notwithstanding the limited warranty terms set
forth above, MESSER OFFERS NO WARRANTY WHATSOEVER WITH RESPECT TO ANY COMPONENTS OF THE
EQUIPMENT MADE OR PROVIDED TO MESSER BY OTHER MANUFACTURERS, PRODUCERS, OR SELLERS (the
“Purchased Components”). The sol
e and exclusive warranty for each the Purchased Components shall be
limited to the express written warranty with respect to the Purchased Component as provided by the
manufacturer, producer, or seller of such Purchased Component. Messer’s responsibility a
nd liability for the
Purchased Components shall be limited to the assignment of the Purchased Components’ express written
warranties applicable to the Purchased Components. Purchased Components include, without limitation, the
following: axles, tires and rims; trailer hitch components and jacks; hydraulic pumps, motors, cylinders and
components; and bales spears, pallet tines, and bucket teeth.
4.
No Other Warranties. THE FOREGOING REPAIR AND REPLACEMENT OBLIGATIONS IN SECTION 2 ARE IN LIEU OF
ALL OTHER WARRANTIES, LIABILITIES AND OBLIGATIONS, INCLUDING ALL WARRANTIES OF MERCHANTABILITY,
OF FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXPRESSED OR IMPLIED IN FACT OR BY LAW, AND
STATE MESSER’S ENTIRE AND EXCLUSIVE LIABILITY AND PURCHASER’S EXCLUSIVE REMEDY F
OR ANY CLAIM IN
CONNECTION WITH THE SALE AND PURCHASE OF EQUIPMENT (AND ALL COMPONENTS THEREOF), THEIR
DESIGN, SUITABILITY FOR USE, INSTALLATION OR OPERATIONS.
5.
Location of Warranty Repairs. All warranty repairs pursuant to this Limited Warranty shall be m
ade at Messer’s
corporate manufacturing plant, or other location as determined by Messer, at its discretion. Purchaser shall be
responsible for and pay for any transportation expenses necessary for Limited Warranty repairs.
6.
Limited Warranty Voidable. The limited warranty herein is void and deemed waived if the purchaser fails to
give written notice to Messer of any alleged defect under the limited warranty herein within 20 days of its
discovery; or (a) purchaser or parties other than Messer or its authorized representatives attempts to remedy
or fix the alleged Equipment defects; or (b) purchaser has used the Equipment for purposes it was not intended
to be used for; or (c) purchaser has not operated the Equipment in a manner consistent with Messer’s
instructions for the Equipment; or (d) the Equipment has been modified, altered, abused, or misused; or (e) the
Equipment has been damaged pursuant to accident, fire, flood, or other Act of God.
7.
No Consequential Damages. IN NO EVENT SHALL MESSER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, AND MESSER’S LIABILITY, UNDER NO CIRCUMSTANCES, WILL
EXCEED THE PRICE PAID FOR THE EQUIPMENT FOR WHICH LIABILITY IS CLAIMED.
8.
Governing Law. This contract shall be governed by the laws of the State of Minnesota.
9.
Arbitration. Any controversy or claim arising out of or relating to the limited warranty provided herein, or any
alleged breach thereof, shall be settled exclusively by arbitration in accordance with the Rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitration shall be conducted in Minneapolis, MN, by one arbitrator selected
by Messer and Purchaser, or, if they cannot agree, the President of the American Arbitration Association.
