This Warranty governs commercial item products from TRUMPF’s OEM laser product lines (hereinafter referred to as “Goods” or “Equipment”) intended for incorporation as component parts in processing systems utilizing lasers, purchased by the buyer (“Buyer”) pursuant to an order (each, a “Purchase Order”) delivered to and accepted by Edmund Optics, Inc. (“Seller”).
1. DESIGNATED FACILITY AND END USER:
(A) Buyer’s Designated Facility: Buyer’s Purchase Order shall set forth in writing the facility at which Buyer will receive the Goods (the “Designated Facility”). Carrier’s proof of delivery documentation shall serve to establish the date of arrival of Goods at the Designated Facility (the “Facility Delivery Date”).
(B) Buyer’s Designated End User: The warranty described herein cannot be assigned or transferred except between Buyer and a single end user designated by Buyer on Buyer’s Purchase Order at the time of Buyer’s purchase of the Goods (“Buyer’s Designated End User”).
2. INSTALLATION AND PRODUCT ACCEPTANCE:
(A) Preparation of Installation Site: Buyer is responsible for preparing the installation site as set out in the Pre-Installation Manual provided by Seller, for providing all utilities within rated parameters as stated in the Pre-Installation Manual, and for inspecting, rigging and placement of the Goods at the installation site.
(B) Inspection Upon Delivery: Upon arrival of the Goods at the Designated Facility, Buyer shall inspect the Goods for shortages and damage in transit. Buyer shall notify Seller in writing of any such claims within ten (10) days after Facility Delivery Date. Failure of the Buyer to give written notice of a claim within the time-period or in the form specified above shall be deemed to be a waiver of such claim.
3. CLASS 4 LASER DEVICE: THE OEM LASER GOODS SOLD HEREUNDER ARE CLASS 4 LASER DEVICES AS DEFINED AT 21 CFR, SUBCHAPTER J, PART 1040.10(B)(11). Buyer acknowledges and agrees that because the Goods are OEM laser devices intended for incorporation as components in a laser processing system or part thereof that is designed, manufactured or integrated by Buyer or Buyer’s integrator (the “Integrated Product”), the Goods do not meet all of the Standards for complete laser processing systems as specified by 21 CFR, Subchapter J without additional safeguards. Buyer is solely responsible to ensure that any Integrated Product is designed and certified to meet all applicable safety statutes, rules or regulations prior to delivery for end use or sale to the public. Neither TRUMPF nor Seller play a role in the design or manufacture of, or the integration of the Goods into the Integrated Products or assume any responsibility for the compliance of any Integrated Product into which the Goods are incorporated. Buyer hereby agrees to indemnify and hold harmless TRUMPF and Seller against any government or third-party claims, penalties or liability required to be paid by TRUMPF or Seller arising out of the failure of any Integrated Product to comply with or be certified under applicable safety statutes, rules or regulations.
4. WARRANTY: Except as otherwise provided in this Section, any Goods sold hereunder which are (1) in the possession and control of Buyer or Buyer’s Designated End User, (2) have been properly integrated, and have been maintained by authorized persons, and (3) have been operated within the limits of rated and normal usage, are warranted to conform to the Goods’ Technical Specifications and to be free of defects in material and workmanship, as determined by TRUMPF’s inspection, for a Warranty Term of one year commencing on the Facility Delivery Date, except that if the Designated Facility is not the facility of Buyer’s Designated End User, the term of the warranty shall end the earlier of (a) one year from the date of Buyer’s delivery of the Integrated Product to Buyer’s Designated End User or (b) 15 months from the Facility Delivery Date. Buyer shall provide Seller with prompt notification of a warranty claim within the warranty period, whereupon Seller will arrange to repair or replace without cost to Buyer the product or parts covered by the warranty which are confirmed to be defective in material or workmanship. This shall be the sole and exclusive remedy of the Buyer under this warranty. The terms of this warranty do not apply to any Goods which have a life, under normal usages, that is inherently less than one year. Product demonstrations, test parts, time studies, production estimates and other such particulars furnished to Buyer are only estimates and do not create a warranty.
Neither Seller nor TRUMPF shall be liable under any warranty or other obligation if the alleged defect in the Goods does not exist or the defect or defective performance is caused in whole or in part by Buyer’s or any third party’s misuse, neglect, modifications or additions, the use of non-TRUMPF spare parts or consumables, unauthorized attempts to repair, or by accident or other hazard outside Trumpf’s control. The warranty does not transfer if the Goods are resold or otherwise transferred outside the ownership or control of Buyer or Buyer’s Designated End User. Use of a non-TRUMPF spare part shall void the warranty if the TRUMPF spare part is available under the warranty free of charge.
DISCLAIMER OF OTHER WARRANTIES: THE WARRANTY DESCRIBED IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXCLUDED.
5. WORKPLACE SAFETY, INDEMNIFICATIONS, LIMITATION OF LIABILITY
(A) Buyer’ Indemnification. Notwithstanding any provision to the contrary in this Agreement, in no event shall TRUMPF or Seller be liable for any loss, damage or product failure attributable to any service, product, or actions of any person other than TRUMPF or Seller, their employees and duly authorized agents. TRUMPF and Seller shall not be liable for and Buyer shall indemnify TRUMPF and Seller against all third party claims and liability required to be paid by TRUMPF or Seller to the extent arising out (i) the defective design, materials or workmanship of any Integrated Product, (ii) any modification of Goods by any party other than TRUMPF, or (iii) the use of the Goods integrated into or in combination with other products, including but not limited to the Integrated Product.
(B) Infringement/Malware: TRUMPF represents that (i) the Goods sold hereunder, without further combination or modification, are not known to infringe, violate or misappropriate any intellectual property right(s) of third parties; (ii) that TRUMPF has all of the rights, permits, licenses and authority known to be necessary to perform its obligations hereunder; and (iii) the Goods, including any software and the media it is delivered on, have been scanned for and been found to be free from viruses and other malicious code. TRUMPF shall, subject to the Limitation of Liability contained herein, indemnify, defend and hold Buyer harmless from and against third party claims and liability required to be paid by Buyer to the extent arising out of a third party claim which establishes : (i) the Goods, without further combination or modification, infringe, violate or misappropriate intellectual property rights of a third party, or (ii) Trumpf’s failure to use commercially reasonable efforts to monitor the Goods as provided herein or in making the foregoing representations. In no event shall Trump or Seller be liable for any loss or damage under a claim of infringement or misappropriation, or the introduction of malware, arising out of the combination or integration of the Goods with any Integrated Product.
(C) Workplace Practices: It is the responsibility of Buyer to know, understand and comply with the work and safety laws and regulations in effect and governing Buyer’s use of the Goods provided hereunder. If Buyer is the End-User of the Integrated Product, Buyer agrees that the Goods and all persons other than TRUMPF personnel operating or maintaining such Goods will be deemed under Buyer’s exclusive control. To the extent governing law requires inspections, reviews, records keeping and/or after-purchase modifications to the Goods, it is the responsibility of the Buyer to arrange for and comply with such requirements and any associated costs are the sole responsibility of the Buyer. Buyer shall indemnify TRUMPF and Seller against all third-party claims and liability required to be paid by TRUMPF or Seller to the extent arising out of (a) any modifications, including but not limited to repairs, made in the Goods by or on behalf of Buyer by persons or parties other than TRUMPF or Seller, and/or (b) Buyer’s negligent use of the Goods, including but not limited to use in production with any of the Integrated Product safety functions disabled, obstructed or circumvented.
(D) Limitation of Liability: TRUMPF’s liability on any indemnification or claim of any kind, under any theory at law or in equity, including, but not limited to, negligence or strict liability, for any loss or damage arising out of, connected with, or resulting from the performance or breach of the terms hereof, or from the design, manufacture, sale, delivery, resale, installation, modification, repair, operation or use of the Good(s) or any service provided in connection therewith, shall in any case not exceed the price allocable to the service, Good(s) or part thereof which gives rise to the claim. In no event shall TRUMPF have any liability hereunder for any incidental, consequential or exemplary damages of any nature.
Issue version August 2021