Pro Gutter Guards shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Pro Gutter Guards shall use its standard methods for packaging and shipping such Goods and shipment shall be in accordance with Pro Gutter Guards’ then current shipment methods. Pro Gutter Guards may, in its sole discretion, without liability or penalty, make partial shipments of Goods. Each shipment will constitute a separate sale, and you shall pay for the units shipped whether such shipment is in whole or partial fulfillment of your order.
These Terms of Sale may only be amended or modified in a writing which specifically states that it amends these Terms of Sale and is signed by an authorized representative of each party.
LIMITED WARRANTY: Pro Gutter Guards warrants to you that for a period one year from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Pro Gutter Guards’ published specifications in effect as of the date of shipment and will be free from material defects in material and workmanship. EXCEPT FOR THE WARRANTY SET FORTH IN THIS PARAGRAPH, PRO GUTTER GUARDS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty set forth in this paragraph. For the avoidance of doubt, PRO GUTTER GUARDS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Pro Gutter Guards shall not be liable for a breach of the warranty set forth in this paragraph if: (i) you make any further use of such Goods after giving such notice; (ii) the defect arises because you failed to follow Pro Gutter Guards’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) you alter or repair such Goods.
With respect to any such Goods during the Warranty Period, Pro Gutter Guards shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Pro Gutter Guards so requests, you shall, at Pro Gutter Guards’ expense, return such Goods to Pro Gutter Guards. THE REMEDIES SET FORTH IN THIS PARAGRAPH BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND PRO GUTTER GUARDS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY. IN NO EVENT SHALL PRO GUTTER GUARDS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OF SALE, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY YOU OR COULD HAVE BEEN REASONABLY FORESEEN BY YOU, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PRO GUTTER GUARDS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY GOOD, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PRO GUTTER GUARDS FOR SUCH GOODS.