Article 9. Warranty and liability
9.1.1 Equipment: Seller, except as set forth below and except for cases of willful misconduct or Gross Negligence, warrants all Equipment, including parts and components hereof delivered by Seller, to be free of defects in design, materials, and workmanship for a period of twelve (12) months from the date of Delivery. No warranty is given for wear and tear parts and consumables. The warranty is conditioned on a maximum of eight (8) running hours for the Equipment in each twenty-four (24) hour period in a five-day work week. If the running hours of the Equipment exceed said number of hours, the warranty period shall be reduced proportionally. For items that are replaced under the warranty within the last 3 months of the warranty period a new one-time warranty period of 3 months shall apply.
9.1.2 Marel Software: Seller, except as set forth below and except for cases of willful misconduct or Gross Negligence, warrants during the above-mentioned warranty period that the Marel Software will not fail to perform substantially in accordance with the Contract due to defects in workmanship, provided that such possible defects are defined as reproducible deviations with respect to the software specifications provided by Seller, which were present at the moment of release and which substantially impair the use of the Equipment. However, Seller does not warrant that the operation of the Marel Software shall be uninterrupted or error free. Seller expressly waives any liability for lack of compatibility with or failures in computer hardware and/or firmware from a third party on which the Marel Software is installed, whether supplied by Seller or Customer.
9.1.3 Services: Any Services by Seller shall impose no obligation on Seller except to perform said activity using reasonable care and skill in a workmanlike manner and shall imply no warranty as to the completeness of the Service or as to the overall performance of the Equipment.
9.2 Seller incurs no warranty obligations (including liability obligations) if and to the extent:
a. Customer fails to observe Seller’s instructions concerning the use, cleaning, and/or maintenance of the Equipment and/or Marel Software and this failure has caused the defect of the Equipment;
b. Customer modifies or repairs the Equipment and/or Marel Software, allows a third party to do so or uses spare parts not approved by Seller for maintenance without Seller’s prior written permission;
c. Customer fails to notify Seller of any defect immediately upon Customer’s discovery of the defect or in any event within seven (7) days after the discovery of the defect;
d. the defect is due to normal wear and tear, misuse, sub-standard operator performance, negligence, external causes (crash, irregular power supply, and the like), use of other raw materials than specified, or is caused by force majeure;
e. the defect arises from electromagnetic interference (EMI), radio frequency interference (RFI), lack of electromagnetic compatibility (EMC), lightning, or similar causes;
f. the defect arises as a result of Seller following any drawing, design or specification supplied by Customer.
9.3 Subject to Section 9.2, if Customer gives notice in writing during the warranty period that the Products do not comply with the warranties set out in Article 9, Seller shall at its sole discretion remedy faults falling under the warranty free of charge either i) by repair of the faulty Equipment or Marel Software, whether or not at Customer’s location, or ii) by making replacement Equipment or Marel Software available at Seller’s premises, or iii) refund the price of the defective Equipment or Marel Software in full, or iv) by executing the defect Service again in a workmanlike manner at Customer’s location. If the Equipment or Marel Software has been installed or the Services have been rendered on a vessel then Customer’s location shall be deemed to be the closest harbor to Seller’s premises. If these remedies, after a reasonable number of attempts, do not remedy the defect, Customer may as the sole and exclusive remedy ask for reimbursement of the purchase price paid for the defective part (or the specific piece of Equipment or Marel Software in which the defective part is incorporated if as a consequence of the defect such piece of Equipment or Marel Software cannot be used) or the defective Service, plus an amount of liquidated damages not exceeding 15% (fifteen percent) of the purchase price of the defective part or Service. To the extent permitted by the applicable law all other and/or further costs related to the remedy of Seller as described in section 9.3 (i) - (iv), including but not limited to transportation costs, travel, and accommodation expenses, labor costs, costs of disassembly and re-assembly, and costs to solve problems that are not covered by the warranty, shall be at the expense and risk of Customer.
9.4 SELLER MAKES NO WARRANTIES, EXCEPT AS SET FORTH IN SECTIONS 9.1.1, 9.1.2, AND 9.1.3, AND ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
Reference: GENERAL TERMS AND CONDITIONS OF SALE APPLIED BY THE MAREL COMPANIES (Version 2.0)