Subject to the terms and conditions of this Terms of Use, Limited Warranty, and Liability Waiver (these, “Terms”), Brown Brothers Tool Company LLC (hereinafter “BBTC”) warrants to the original purchaser (“Purchaser”) that, at the time of original purchase, and for one (1) year from the date of original purchase (the “Warranty Period”), under normal use and service conditions, the StoneKraken Stone Splitter product (the “Product”), and all components thereof, expressly excepting the hydraulic power unit covered by a separate third-party manufacturer’s warranty from BVA Hydraulics (which BBTC assigns to Purchaser to the extent permitted), shall be free from material defects in workmanship and materials. If a defect occurs within the Warranty Period, Purchaser must notify BBTC in writing prior to expiration of the Warranty Period. Purchaser waives any warranty claim not filed prior to expiration of the Warranty Period. Upon confirmation by an authorized BBTC representative of the defect, BBTC’s sole responsibility shall be, at its option, to either replace the defective Product or refund the purchase price paid by Purchaser for such defective Product. This warranty is not transferable. Purchaser may not transfer, convey or otherwise assign any or all of its rights under these Terms without the prior written consent of BBTC. Any such transfer or assignment without prior written consent shall be null and void and of no force or effect. To make a warranty claim, Purchaser must send to BBTC, within the Warranty Period, a description of the claimed defect and proof of purchase, to the following address: Brown Brothers Tool Company LLC, ATTN: Warranty Department, 19376 Seminole Circle, Bend, OR 97702. BBTC may require additional information to evaluate a claim and may require Purchaser to ship the claimed defective product to BBTC at Purchaser’s expense.

 

Notwithstanding anything herein to the contrary, BBTC does not warrant against and is not responsible for any condition of the Product attributable to: (1) improper or unlawful use; (2) failure to adhere to operational instructions or maintenance recommendations provided by BBTC (including, without limitation, damage due to impact, overloading, or use beyond the product's rated capacity); (3) use of the Product for purposes or applications other than its intended uses and applications (verify with BBTC prior to undertaking any particular use or application); (4) any modification of the Product by Purchaser or third parties; (5) any act of God (such as flooding, hurricane, earthquake, lightning, etc.); (6) environmental condition (such as air pollution, mold, mildew, etc.); (7) staining or malfunctions from foreign substances (such as dirt, grease, oil, etc.); (8) exposure to sunlight, weather and atmosphere which will cause rust, corrosion, fading or introduction of foreign substances such as blown dirt; (9) variations or changes in color of Product or any other cosmetic defect that does not affect functionality; (10) accidents; (11) improper handling, storage, abuse or neglect of Product by Purchaser or third parties; (12) hydraulic components; or (13) ordinary wear and tear.

 

OTHER THAN THE FOREGOING WARRANTY, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR ANY AFFIRMATIONS OF FACT OR PROMISES BY BBTC, OR ANY OTHER PARTY, WITH RESPECT TO THE PRODUCT. BBTC DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY CONTAINED IN THESE TERMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BBTC EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, INFRINGEMENT OR ANY REPRESENTATIONS OF FACT, QUALITY, OR RESULTS NOT EXPRESSLY SET FORTH HEREIN. No person or entity is authorized by BBTC to make, and BBTC shall not be bound by, any statement or representation as to the quality or performance of Product other than as expressly contained in these Terms.

 

The product is intended for commercial use by masonry professionals familiar with stone splitting equipment. There are inherent risks and danger associated with use of the Product, which may lead to damage to property, serious physical injury, disability and/or death, whether to the user or others, even where the Product is used as intended. By purchasing, using, or allowing the use of the Product, to the maximum extent permitted by applicable law, Purchaser and/or the user expressly and voluntarily (i) ASSUMES ALL OF THE ABOVE-MENTIONED RISKS, HAZARDS, DANGERS, AND ANY HARM, INJURY OR LOSS THAT MAY OCCUR TO PERSONS OR PROPERTY as a result of use of the Product WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF BBTC, its employees or any other party including, but not limited to, equipment malfunction from whatever cause; (ii) releases BBTC, its affiliates, and their employees, officers, directors, shareholders and owners (the “Released Parties”) from all liabilities, causes of action, claims and demands that arise in any way from purchase and/or use of the Product including, without limitation, any claims based on negligence, defects in the design, manufacture, adjustment, maintenance or inspection of the Product and related equipment, failure to provide proper instruction, technical direction or safety equipment; and (iii) agrees to indemnify (including, without limitation legal fees), defend (with counsel acceptable to BBTC), and hold harmless BBTC and the Released Parties against all actions, claims, demands, damages, and liabilities arising from or related to use of the Product by Purchaser or any party that Purchaser allows to use the Product.

 

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BBTC BE LIABLE, TO ANY PARTY, FOR LOST PROFITS OR REVENUES, LOSS OF USE OR SIMILAR ECONOMIC LOSS, DEFECTS IN MATERIALS OR WORKMANSHIP ARISING

DIRECTLY OR INDIRECTLY FROM USE OF THE PRODUCT, OR ANY SPECIAL, INCIDIENTAL, CONSEQUENTIAL, PUNITIVE, OR SIMILAR DAMAGES, WHETHER SUCH LOSSES OR DAMAGES ARE SOUGHT IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND BBTC’S LIABILITY FOR NON-PERSONAL INJURY CLAIMS WITH RESPECT TO DEFECTIVE PRODUCT SHALL IN NO EVENT EXCEED THE REPLACEMENT OF SUCH PRODUCT OR REFUND OF THE PURCHASE PRICE, AS DESCRIBED ABOVE.

 

The Product is expressly offered subject to these Terms and any purchase or use of the Product is subject to these Terms.

These Terms shall be exclusively governed by and construed in accordance with the laws of the State of Oregon without regard to the residence of Purchaser or application of any principles of conflicts of law. Any action concerning the Product or otherwise between the Purchaser and BBTC shall be adjudicated in state courts located in Deschutes County, Oregon or federal courts for the District of Oregon. Purchaser hereby waives all personal jurisdiction defenses with respect to said venue. If any provision of these Terms is determined by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, in any respect or circumstance, such determination will not affect the provision in any other respect or circumstance or affect any other provision of these terms. These Terms will be enforced to the maximum extent permitted by applicable law. Use of the Product is unauthorized in any jurisdiction that does not materially give effect to these Terms including, without limitation, this paragraph. These Terms may not be altered or amended except in a written instrument signed by BBTC and Purchaser.

 

THESE TERMS WAIVE SUBSTANTIAL LEGAL RIGHTS INCLUDING, WITHOUT LIMITATION, ITS ASSUMPTION OF RISKS AND RELEASE OF CLAIMS, LIMITATION OF LIABILITY, AND INDEMNITY PROVISIONS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE.