BACKGROUND
A user of any part or service from Winters Performance Products, Inc. (”User”) referred to herein as a “Purchaser”. Understands Winters’ manufactures automotive parts, equipment, inventory and services (”parts”) which are purchased by persons in various industries, and install and use Winters products in applications which may not be suitable. Purchaser understands, recognizes and acknowledges that all parts, inventory, and services manufactured or sold by Winters are exposed to many, varied and unforeseeable uses and conditions when installed and used in high stress applications and that as a consequence, Winters can make no promise, warranty, affirmation or representation as to the future performance of its parts under those conditions. Purchaser expressly acknowledges and understands that Winters does not make any affirmation of fact or promise to Purchaser which relates to Winters’ parts, inventory, or services, that becomes part of the basis of bargain between Winters and Purchaser, nor does Winters make or cause to be made to Purchaser any description of the goods sold to Purchaser, nor does Winters make or cause to be made, as part of the basis of the bargain with Purchaser, any description or affirmation of fact concerning any sample or model of parts, equipment, inventory, or services (except as specifically set forth in this Limited Warranty). As further consideration for Purchaser using Winters’ parts, equipment, inventory and services, Purchaser acknowledges that, due to differing conditions and circumstances under which all parts and equipment are installed and used, Purchaser is not relying on Winters’ skill and judgement to select or furnish the proper part or equipment. Purchaser expressly affirms, after evaluating competitors’ products, that Purchaser is relying on Purchaser’s own expertise, skill, and judgement to select, purchase, and install suitable goods relative to safety and durability and Purchaser assumes all risks associated with the performance of Winters’ parts.
LIMITED WARRANTY
Winters warrants to Purchaser that a part manufactured by Winters (a “Part” or “Parts”) will conform to the description of such Part contained in any catalog provided by Winters which is current at the time of sale of such Part to Purchaser (the “Description”). WINTERS MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED. WINTERS EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE AND EXPRESSLY DISCLAIMS ANY WARRANTY AS TO PERFORMANCE OF ANY PART. The liability of Winters for breach of the foregoing warranty is limited to repair or replacement of any Part determined to fail to conform to its Description prior to installation and use. The burden of establishing that a Part fails to conform to its Description shall be upon Purchaser. In order to be entitled to repair or replacement of a Part, Purchaser must (i) inspect the Part upon receipt; and (ii) notify Winters in writing of the defect PRIOR TO INSTALLATION OF THE PART. In no event shall Winters be liable hereunder for any Part which has been installed. Purchaser assumes all risk relating to a Part once such Part is installed. WINTERS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OR FOR LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF A PART. Every claim under this Limited Warranty shall be deemed waived unless made in writing within ninety (90) days of delivery of the Part by Winters to Purchaser. Purchaser acknowledges that, due to the multiple uses of the Parts, it is impossible for Winters to predict the performance of the Parts once installed or the suitability of the Parts for any particular use. Purchaser expressly acknowledges Purchaser’s obligation to factually inform all users (customers) of the above disclaimer.
INDEMNITY AGAINST THIRD PARTY CLAIMS
PURCHASER HEREBY AGREES TO INDEMNIFY WINTERS AND HOLD HARMLESS WINTERS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITY, LOSS AND DAMAGES, INCLUDING ATTORNEYS FEES, MADE BY ANY THIRD PARTY AGAINST WINTERS RELATING TO A PART OR THE USE OF ANY PART. Purchaser understands and agrees that no officer, director, employee or salesman of Winters or any vendor, dealer, or distributor has any authority to make any statements contrary to the terms of this Limited Warranty. On the contrary, Winters disavows any statements contrary to what is above written.
MISCELLANEOUS
This writing constitutes the full, complete and final statement of Winters’ Limited Warranty for Parts. All prior oral and written correspondence, test data, negotiations, representations, understandings and the like regarding Parts are merged in this writing and extinguished by it. This Limited Warranty may not be altered, amended, extended or modified except by a writing signed by the President or Vice President of Winters. Winters’ failure at any time to enforce any of the terms and conditions stated herein shall not constitute a waiver of any of the provisions herein. This Limited Warranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any legal actions which may arise as a result of disputes, controversies, or claims arising out of or related to this Limited Warranty shall be litigated in the Court of Common Pleas of York County, Pennsylvania, or in such other forum as Winters and Purchaser shall agree. This Limited Warranty shall not be assigned by Purchaser. Our responsibility for merchandise shipped via common carrier ceases upon delivering the order to the carrier. We are not responsible for merchandise lost or damaged in transit. You must file a claim with your delivery carrier. We would however assist you in supplying any information necessary for submission of your claim. It is the responsibility of the buyer to comply with all laws and regulations, Federal, State and Local, governing resale of products sold by Winters Performance. NSF Charge: $35.00 per returned check/payment. Repayments must be by cashier check or money order.
On request, all parts in Winters Performance Products, Inc. inventory and/or catalog are available in super strength heat treated steel (300,000/350,000 P.S.I. tensile strength) @ extra cost and special order.
