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6. Exclusivity of Warranty:
This warranty is the only warranty made by PROSUN and may
only be modified or amended by a written instrument signed by a duly authorized officer
of PROSUN. PROSUN’s sole and exclusive liability and Purchaser’s sole and exclusive
remedy under this warranty shall be, at PROSUN’s option, to repair or replace, to the
extent available on a prorated basis, any such defective Products. These remedies
are available only if PROSUN’s examination of such Products discloses to PROSUN’s
satisfaction that such defects actually exist and were not caused by Purchaser’s misuse,
abuse, neglect, improper installation, maintenance or testing, alterations or modifications,
failure to meet manufacturer’s specifications or any other cause beyond the range of
normal usage, or by accident, fire or other hazard. Repair or replacement of a part does
not extend the warranty period or extend the prorated value of a part or product beyond
the initial two year limited warranty period from the date of delivery.
THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL PROSUN BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES WITH RESPECT TO THE PRODUCTS DELIVERED
HEREUNDER OR SUBSEQUENT USE THEREOF.
7. Limitation of Liability:
PROSUN shall not be liable for any loss, damages, or penalty
resulting from failure to perform any of its obligations under this Agreement due to major
force or any cause beyond its reasonable control.
PROSUN’S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT SHALL
NOT EXCEED THE REFUND OF THE PURCHASE PRICE LESS REASONABLE
RENTAL FOR PAST USE. IN NO EVENT SHALL PROSUN BE LIABLE FOR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS BY THE PURCHASER OR FOR
UNAUTHORIZED REPAIRS UNDERTAKEN BY THE PURCHASER WITHOUT
PROSUN’S PREVIOUS WRITTEN APPROVAL. IN NO EVENT SHALL PROSUN
BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES,
HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR
OTHERWISE. PROSUN DISCLAIMS ANY OBLIGATION OR LIABILITY FOR LOSS
OF USE OF THE PRODUCT WARRANTED, LOSS OF TIME, INCONVENIENCE,
RENTAL OR SUBSTITUTE PRODUCTS, LOSS OF BUSINESS, LOSS OF INCOME,
COMMERCIAL LOSS OR ANY OTHER DIRECT, CONSEQUENTIAL, SPECIAL OR
INCIDENTAL DAMAGES.
8. Governing Law:
Notwithstanding principles of conflicts of law of any jurisdiction to the
contrary, all terms and provisions of this Agreement are to be construed and governed
by the laws of the state of Florida without regard to the laws of any other jurisdiction.
The Purchaser waives any and all privileges and rights which they may have under
Chapter 47, Florida Statutes (1993), relating to venue as it now exists or may hereafter
be amended, and under any other statute, or administrative provision thereof in any legal
action on this Agreement; and further, the Purchaser agrees that any legal action brought
on this Agreement or in connection therewith, shall be brought in the appropriate court in
Pinellas County, Florida.
9. Attorney’s Fees:
Should a dispute arise with regard to this warranty or any other aspect
of this sale the prevailing party shall be entitled to reasonable attorneys fees and costs
through appeal.
