Kevlyn Pumps – Limited Product Warranty

OPD350

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LIMITED PRODUCT(S) WARRANTY

 

Product(s) (the “product” or the product(s))”:  1)       Model OPD350 by Kevlyn Pumps LLC

(including but not limited to, all hardware, firmware, consumables, replacements, parts, and documentation, associated therewith, as may be updated, upgraded, replaced and/or revised from time to time, except as specifically excluded herein).

THE PRODUCT(S) OFFERED, SHIPPED, SOLD, PROVIDED, TRANSFERRED, OR OTHERWISE FURNISHED BY KEVLYN PUMPS LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY, (“KEVLYN”) TO CUSTOMER IS SUBJECT TO THE EXPRESS LIMITED WARRANTY (THE “WARRANTY”) SET FORTH BELOW.  THE ORIGINAL END USER OF THE PRODUCT (THE “CUSTOMER”) ACKNOWLEDGES CUSTOMER’S AGREEMENT WITH, AND ACCEPTANCE OF, THIS WARRANTY.  THE CUSTOMER ACKNOWLEDGES THAT HE/SHE/IT HAS READ AND UNDERSTOOD THIS WARRANTY PRIOR TO USING OR INSTALLING THE PRODUCT(S) AND CUSTOMER’S INSTALLATION OR USE OF THE PRODUCT(S) IS EXPRESSLY SUBJECT TO CUSTOMER’S ASSENT TO THE WARRANTY AS SET FORTH HEREIN.  THE CUSTOMER EXPRESSLY WAIVES HIS/HER/ITS RIGHT TO ENFORCE ITS OWN WARRANTY OR TERMS AND CONDITIONS OF PURCHASE AND THE CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT KEVLYN AGREES TO OFFER, SELL, SHIP, PROVIDE, AND OTHERWISE FURNISH THE PRODUCT(S) ONLY UPON THE TERMS STATED HEREIN.   

1.       Limited Warranty. Kevlyn warrants that, for a period of five (5) years from the date of purchase from Kevlyn or its authorized distributor(s), the product(s) sold will be free from material defects in materials and workmanship under normal use in accordance with all product instructions and Documentation and will substantially conform to their published specifications.  With the exception of the foregoing, the product(s) offered, shipped, sold, provided, transferred, or otherwise furnished by Kevlyn to Customer is provided “AS IS” and this Warranty does not cover defects due to normal wear and tear.  Notwithstanding anything else in this Warranty to the foregoing, Kevlyn does not warrant that the product(s) will be free from defects or that Customer will be able to use the product(s) without problems or interruptions.  Nothing herein shall be deemed to extend the term of this Warranty. 

a.        This Warranty shall not apply and be deemed null and void if: 

i.      The product(s) has been improperly stored or installed;

ii.      The product(s) has not been installed in accordance and in compliance with applicable plumbing and electrical codes; 

iii.      This Warranty has not been provided to the Customer by any installer, electrician, contractor, or otherwise; 

iv.      The product(s) has been modified, changed, altered, or improved;

v.      The product(s) has been sold, gifted, given, licensed, rented, loaned, or otherwise transferred or made available to any person or entity apart from the original end user;

vi.      Customer sells, licenses, gives, rents, leases, transfers, loans, provides, or otherwise makes the product(s) available to any third party;

vii.      The product(s) has not been installed, operated, used, repaired, and/or maintained in accordance with the written instructions supplied by Kevlyn or as stated in its manuals, service bulletins, or otherwise (the “Documentation”); 

viii.      The product(s) has been subjected to abnormal physical or electric stress, misuses, negligence, or accident; 

ix.      Customer removes or destroys any proprietary marks or legends including, but not limited to, patents, trademarks, and copyright notices placed upon or contained within or on the product(s);

x.      Customer attempts to gain unauthorized access to the product(s);

xi.      Customer reverse engineers, decompiles, disassembles, removes the constituent parts, or attempt to derive proprietary information from the product(s) or any portion thereof, or otherwise attempt to circumvent any security, anti-tampering and/or anti-piracy systems of the product(s);

xii.      The product(s) is not maintained in good and safe operating condition and appearance, normal wear and tear excepted;

xiii.      The product(s) is used in violation or to violate any law, statute, ordinance or regulation;

xiv.      The product(s) is used in any application that may involve risks of death, bodily injury, property damage or environmental damage, or in any life support applications, devices or systems;

xv.      Kevlyn is unable to reproduce the alleged defect; or 

xvi.      Notice of a defect is not provided to Kevlyn as required in this Warranty.

b.       Notwithstanding the foregoing, the term of this Warranty shall be reduced to one (1) year if:

i.      Customer refuses or otherwise fails to successfully test the product every six (6) months, through the use of the “Kevlyn Pumps” iPhoneÒ or AndroidÒ application, as applicable (the “Software”), as further described in the Documentation;

ii.      Customer fails to comply with the maintenance requirements of any maintenance schedule recommended by the Documentation; or

iii.      Customer refuses or otherwise fails to update the Software, through the Apple App StoreÒ or Google PlayÒ, as applicable, every thirty (30) days, as further described in the Documentation.

 c.        In the event the Warranty is invalidated pursuant to Section 1(a), then Customer agrees to indemnify and hold Kevlyn harmless from any and all claims, costs, liabilities, damages and expenses, including attorney fees and experts’ costs, asserted against or incurred by Kevlyn because of injuries to persons or property in connection with Customer’s installation, operation, use, repair, and/or maintenance of the product(s).  In the event the Warranty is invalidated pursuant to Section 1(a), any and all limitations on damages, limitations on remedies, limitations on warranties, and disclaimers set forth below shall remain in full force and effect. 

 d.       All claims under this Warranty must be made known to Kevlyn in a writing by certified mail within thirty days (30) from the date of discovery of the alleged defect and must be received by Kevlyn prior to the expiration of the time period set forth in this Section 1 or be barred forever.  Upon notification of a timely claim, Kevlyn will investigate and/or examine the product(s) claimed to be defective, and Kevlyn shall, at its sole option, repair or replace the product(s), or refund the product(s) purchase price.  At Kevlyn’s sole option, inspection may be performed at Kevlyn’s plant and, in such event, freight for returning defective items shall be paid by Kevlyn. 

 e.        This Warranty is non-transferrable and is only applicable to the Customer and not to any subsequent purchasers, customers, or users of the product(s).  Except as provided in Section 14, this Warranty does not and is not intended to confer any rights or remedies upon any person other than Kevlyn and Customer.  The benefits and obligations of Kevlyn to Customer contained in this Warranty are not enforceable by any customers or users of Customer.  Notwithstanding the foregoing, any and all limitations on damages, limitations on remedies, limitations on warranties, and disclaimers shall apply to any subsequent purchasers, customers, or users of the product(s) and said product(s) shall be considered “AS IS”.

 f.        Kevlyn may, but shall have no obligation to, furnish Customer with recommendations, engineering, instructions, and technical information and advice and other assistance. All such assistance is furnished “AS IS” and solely as an accommodation to Customer and Kevlyn shall have no liability for inaccurate, incomplete or faulty recommendations, information, advice and assistance.

 2.       Limitation of Remedy. TO THE FULL EXTENT PERMISSIBLE BY LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE WARRANTY FROM KEVLYN SET FORTH IN SECTION 1 CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY GRANTED TO HIM/HER/IT BY KEVLYN AND THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST KEVLYN, SLICK DOG PRODUCTIONS LLC, KEVIN MICHAEL MURPHY LLC, KEVIN M. MURPHY, LLC, AND THEIR RESPECTIVE  SUBSIDIARIES, AFFILIATIES, SUPPLIERS, SUBCONTRACTORS, LICENSORS, AGENTS, EMPLOYEES, PRINCIPALS, REPRESENTATIVES, TECHNICIANS, AND OFFICERS (COLLECTIVELY THE “KEVLYN GROUP”), IF THE PRODUCT(S) PROVIDED BY KEVLYN PROVES TO BE DEFECTIVE IN ANY WAY SHALL BE LIMITED TO AN ACTION AGAINST KEVLYN FOR BREACH OF THIS WARRANTY AND THAT THE KEVLYN GROUP’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY TO CUSTOMER FOR BREACH OF THIS WARRANTY OR CONTRACT OR FOR ANY BREACH OF THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR HABITABILITY, NEGLIGENCE, STRICT LIABILITY, COMMON LAW OR CONTRACTUAL INDEMNITY, CONTRIBUTION, EQUITABLE SUBROGATION, STATUTORY OR BUILDING CODE VIOLATIONS, OR ANY OTHER TORTIOUS CONDUCT, CONTRACTUAL OR WARRANTY BREACHES, OR STATUTORY VIOLATION OF ANY TYPE, SHALL BE LIMITED, AT THE SOLE OPTION OF KEVLYN, TO THE REPAIR OR REPLACEMENT OF THE PRODUCT(S), OR THE REFUND OF THE PRODUCT(S) PURCHASE PRICE. IN ADDITION TO THE FOREGOING, CUSTOMER HEREBY RELEASES THE KEVLYN GROUP FROM, AND IN RESPECT OF ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES RESULTING FROM, RELATING TO OR ARISING OUT OF CUSTOMER’S PURCHASE, INSTALLATION, OR USE OF THE PRODUCT(S) THAT IS COVERED BY CUSTOMER’S OWN INSURANCE, OR THAT IS NOT COVERED BY KEVLYN’S INSURANCE COVERAGE, OR THAT IS IN EXCESS OF KEVLYN’S AVAILABLE INSURANCE COVERAGE POLICY LIMITS. NOTWITHSTANDING ANYTHING TO THE FOREGOING IN THIS WARRANTY, THE LIABILITY OF THE KEVLYN GROUP SHALL NOT EXCEED THE PRODUCT(S) PURCHASE PRICE; SUCH LIMITATION SHALL APPLY EVEN IF THE WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.  

 3.       Limitation of Damages.  TO THE FULL EXTENT PERMISSIBLE BY LAW, THE KEVLYN GROUP SHALL NOT BE LIABLE TO CUSTOMER OR THE CUSTOMERS OR USERS OF CUSTOMER FOR ANY OTHER DAMAGES NOT SPECIFIED IN THIS AGREEMENT, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, IN TORT (INCLUDING ANY DAMAGE ARISING FROM THE NEGLIGENCE OF THE KEVLYN GROUP), OR OTHERWISE, EVEN IF THE KEVLYN GROUP HAS BEEN ADVISED OF THE POSSIBILTIY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO: INCIDENTAL, CONSEQUENTIAL, INDIRECT, ACTUAL, COMPENSATORY, SPECIAL, DELAY, OR PUNITIVE DAMAGES; LOST PROFITS, INCOME, WAGES OR REVENUES; LABOR COSTS; LOSS OF USE; MATERIAL, REPAIR AND/OR REPLACEMENT COSTS NOT SPECIFICALLY PROVIDED FOR HEREIN; WATER DAMAGE; WATER REMEDIATION COSTS; FLOOD DAMAGE; FLOOD REMEDIATION COSTS; MOLD DAMAGE; MOLD REMEDIATION COSTS; TRANSPORTATION; INSTALLATION COSTS; DAMAGE TO PROPERTY; INJURY TO PERSONS, INCLUDING PAIN AND SUFFERING, LOST INCOME, MENTAL DISTRESS, MEDICAL OR FUNERAL EXPENSES, LOSS OF CONSORTIUM; OR FOR ANY OTHER LOSSES, INCLUDING ATTORNEY FEES AND COSTS, INCURRED BY CUSTOMER OR ITS CUSTOMERS OR USERS IN CONNECTION WITH THE PURCHASE, INSTALLATION, OR USE OF THE PRODUCT(S). THE KEVLYN GROUP SHALL NOT BE LIABLE FOR ANY DELAYS OR ISSUES CAUSED BY CIRCUMSTANCES BEYOND KEVLYN’S CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, FIRE, FLOOD, WAR, GOVERNMENTAL PRIORITIES, RULES, OR ACTION, ACCIDENT, LABOR TROUBLE OR SHORTAGE, AND/OR INABILITY TO OBTAIN MATERIAL, EQUIPMENT OR TRANSPORTATION.  

 4.       Disclaimer of Additional Representations, Warranties, and Liabilities. TO THE FULL EXTENT PERMISSIBLE BY LAW, THIS WARRANTY IS EXCLUSIVE AND IS OFFERED IN LIEU OF ALL IMPLIED OR STATUTORY WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF DEALING, USAGE, OR PRACTICE OF TRADE) OR ANY OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS. THIS WARRANTY DOES NOT COVER EXPENDABLE ITEMS SUCH AS BATTERIES OR CABLES, WHICH ARE SOLD WITHOUT WARRANTY AND “AS IS”.  CUSTOMER HEREBY EXPRESSLY RELEASES THE KEVLYN GROUP FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, OR LIABILITY FOR BREACH OF THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND HABITABILITY, NEGLIGENCE, STRICT LIABILITY, CONTRACTUAL AND COMMON LAW INDEMNITY, CONTRIBUTION, EQUITABLE SUBROGATION, VIOLATIONS OF APPLICABLE STATUTES, ORDINANCES, BUILDING CODES, OR REGULATIONS, THE VALIDITY, ACCURACY, PRECISION, LEGALITY, OR CORRECTNESS OF ANY AND ALL DATA, INFORMATION, VALIDATION, NUMBERS, FIGURES, OR LEVELS DERIVED FROM, OBTAINED FROM, OR ANYWAY ASSOCIATED WITH THE USE OF THE PRODUCT(S); ABSENCE OF DISCOVERABLE OR NONDISCOVERABLE DEFECTS, DESIGN DEFECTS, MANUFACTURING DEFECTS, MARKETING DEFECTS, FAILURE TO WARN, THE INHERENTLY DANGEROUS OR UNSAFE NATURE OF THE PRODUCT(S), OR DEFECTS IN THE INSTALLATION OR REPAIR OF THE PRODUCT(S); THE DELIVERY, OPERATION, INSTALLATION, MAINTENANCE, REPAIR, IMPROVEMENT, OR REPLACEMENT OF THE PRODUCT(S); PRODUCTS LIABILITY; MATERIAL, REPAIR AND/OR REPLACEMENT COSTS NOT SPECIFICALLY PROVIDED FOR HEREIN; INSTALLATION COSTS; OR FOR ANY OTHER LOSSES, INCLUDING ATTORNEY FEES AND COSTS, INCURRED BY CUSTOMER OR ITS CUSTOMERS OR USERS OR ANY THIRD PARTY IN CONNECTION WITH THE PURCHASE, INSTALLATION OR USE OF THE PRODUCT(S), AND FROM ANY AND ALL OTHER TORTIOUS CONDUCT, CONTRACTUAL OR WARRANTY BREACHES, OR STATUTORY VIOLATIONS OF ANY TYPE THAT THE KEVLYN GROUP MAY COMMIT IN CONNECTION WITH THE SALE AND/OR CUSTOMER’S PURCHASE OR USE OF THE PRODUCT(S).  CUSTOMER HEREBY EXPRESSLY RELEASES THE KEVLYN GROUP FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, OR LIABILITY RESULTING FROM THE IMPROPER INSTALLATION OF THE PRODUCT(S).

5.       Waiver of Certain Risk. TO THE FULL EXTENT PERMISSIBLE BY LAW, CUSTOMER UNDERSTANDS AND AGREES THAT NO INTERNET, ONLINE, WI-FI, WIRELESS, MOBILE, OR CELLULAR SERVICE IS COMPLETELY SECURE AGAINST UNAUTHORIZED ACCESS, AND THAT, WHEN USING THE PRODUCT(S) AND/OR SOFTWARE, IT WILL BE TRANSMITTING DATA OVER PUBLIC NETWORKS THAT ARE INHERENTLY INSECURE.  CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH UNAUTHORIZED INTERCEPTION, USE AND ACCESS TO DATA SENT BY AND TO CUSTOMER WHEN USING THE PRODUCT(S) AND/OR SOFTWARE.  CUSTOMER UNDERSTANDS THAT THE KEVLYN GROUP CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE PRODUCT(S) AND/OR SOFTWARE.  TO THE EXTENT PERMITTED BY LAW, THE KEVLYN GROUP WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO THE PRODUCT(S) AND/OR SOFTWARE.   THE PRODUCT(S) HAVE NOT BEEN ENDORSED, APPROVED, OR OTHERWISE ACCEPTED BY UL LLC, UNDERWRITERS LABORATORIES, ASTM INTERNATIONAL, OR THE UNITED STATES GOVERNMENT OR ANY STATE GOVERNMENT OR ANY LOCAL GOVERNMENT OR ANY OF THEIR RESPECTIVE CONSTITUENT AGENCIES, INCLUDING THE FEDERAL COMMUNICATIONS COMMISSION OR THE ENVIRONMENTAL PROTECTION AGENCY.

 6.       Waiver of Software Disruption and Incompatibility.  TO THE FULL EXTENT PERMISSIBLE BY LAW, THE KEVLYN GROUP WILL NOT BE RESPONSIBLE FOR DISRUPTION OF THE PRODUCT(S) AND/OR SOFTWARE, WI-FI, WIRELESS, CELLULAR SERVICE, OR LOSS OF DATA, OR ANY OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM THE PRODUCT(S) AND/OR SOFTWARE.  FURTHER, THE PRODUCT(S) AND/OR SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, WI-FI, WIRELESS, CELLULAR, MOBILE AND ELECTRONIC COMMUNICATIONS.  THE KEVLYN GROUP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.  CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE PRODUCT(S) AND/OR SOFTWARE MAY BE TEMPORARILY REFUSED, INTERRUPTED, CURTAILED OR LIMITED BECAUSE OF ATMOSPHERIC, TERRAIN, OTHER NATURAL OR ARTIFICIAL CONDITIONS AND MAY BE TEMPORARILY INTERRUPTED OR CURTAILED DUE TO USAGE CONCENTRATIONS, MODIFICATIONS, UPGRADES, RELOCATION AND REPAIRS OF TRANSMISSION SYSTEMS. CUSTOMER AGREES THAT THE KEVLYN GROUP SHALL NOT BE RESPONSIBLE FOR SUCH INTERRUPTIONS OF THE PRODUCT(S) AND/OR SOFTWARE OR THE INABILITY TO USE THE PRODUCT(S) AND/OR SOFTWARE OUTSIDE THE WIRELESS, CELLULAR, OR WI-FI COVERAGE AREA, AS THE CASE MAY BE.  IN NO EVENT SHALL THE KEVLYN GROUP BE LIABLE FOR THE FAILURE OR INCOMPATIBILITY OF ANY EQUIPMENT UTILIZED BY CUSTOMER IN CONNECTION WITH THE PRODUCT(S) AND/OR SOFTWARE EXCLUDING THE ACTUAL PRODUCT(S) AND/OR SOFTWARE.

 7.       Product(s) Testing & Beta Product(s). Not Being Used

 8.       Non-Waiver. No failure of Kevlyn to insist upon strict compliance of Customer to any of the terms of this Warranty shall impair Kevlyn’s rights. This Warranty may only be amended if the modifications are made in writing and executed by Kevlyn and the Customer.  No course of dealing between the parties shall be effective to amend or waive any provision of the Warranty. 

 9.       Severability. In the event that any provisions of this Warranty is declared to be unenforceable by a court of competent jurisdiction, the other provisions shall continue in full force and effect.  

 10.    Survival. This Warranty will survive expiration, non-renewal or termination of the purchasing relationship between Customer and Kevlyn. 

 11.    Notices. Any notice, warranty claim, or other communication to Kevlyn shall be in writing, at the address below.  Notices must be sent via USPS certified or registered mail, return receipt requested.  Email, oral, or facsimile machine transmission of notices are not deemed adequate notice or service.  Notice shall effective upon actual delivery at the below address of Kevlyn. 

To Kevlyn:           
Kevlyn Pumps LLC
PO Box 338
Paoli, PA USA 19301 

12.    Governing Law. To the fullest extent permitted by law, this Warranty is governed by the internal substantive laws of the Commonwealth of Pennsylvania, excluding (i) said state’s conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. To the fullest extent permitted by law, the controlling language for this Warranty is English. Any translation has been provided solely for convenience.  The parties agree to the jurisdiction and venue of the Court of Common Pleas of Pennsylvania, Chester County, for any and all disputes under this Warranty.

13.    Waiver of Jury Trial. Kevlyn and the Customer knowingly voluntarily, expressly, and intentionally waives any right to trial by jury in any action or other legal proceeding arising out of or relating to the terms of this Warranty, or the sale, installation, furnishing, or use of the product(s) and Software.

14.    Third-Party Beneficiaries. Kevlyn’s licensors, including but not limited to Slick Dog Productions LLC, Kevin M. Murphy, LLC, and Kevin Michael Murphy LLC, shall have the full benefit of Kevlyn’s rights and protections set forth hereunder. There are no other third-party beneficiaries under this Warranty.  Notwithstanding the foregoing, but in no way increasing the rights of Customer or the duties or responsibilities of Kevlyn, Customer shall ensure that any and all other persons and entities which install, use, operate, other otherwise receive, rely on, or otherwise interact with the product(s) or the results, data, information, validation, numbers, figures, or levels derived from, obtained from, or anyway associated with the use of the product(s) shall agree to and be subject to the disclaimers and limitations of Kevlyn found in this Warranty. 

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PO Box 338, Paoli, PA 19301

610.214.3030

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610.214.3030

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PO Box 338 Paoli, PA 19301