D. OTHER CONDITIONS
The following shall apply in connection with the Limited Warranty:
1. Damages Limitation. THE LIMITED WARRANTY DOES NOT COVER, AND IN NO EVENT SHALL MANUFACTURER OR ITS AFFILIATES HAVE ANY LIABILITY FOR, THE COST OF INSTALLATION, REMOVAL, REINSTALLATION, TRAVEL, LODGING OR TRANSPORTATION, LOSS OF TIME OR USE OF THE POOL COVER OR POOL, INCONVENIENCE, DAMAGE TO ANIMALS OR PROPERTY (INCLUDING WITHOUT LIMITATION DAMAGE TO STONE, TILE, COPING, FIXTURES, PLUMBING, DRAINS, SKIMMERS OR SKIMMER COVERS, FENCING, DRIVEWAYS, SIDEWALKS, PATIOS, LANDSCAPING, PLANTS, GRASS, TREES OR DWELLINGS), OR SIMILAR LOSS OR EXPENSE INCURRED BY RETAIL PURCHASER OR ANY THIRD PARTY, OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ALLEGEDLY ARISING FROM ANY DEFECT OR BREACH OF WARRANTY OR CONDITION OR IN CONNECTION WITH ANY REPLACEMENT OR REPAIR HEREUNDER, WHETHER ANY SUCH CLAIM OR DAMAGES BE BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE. IN NO EVENT SHALL MANUFACTURER’S TOTAL LIABILITY HEREUNDER EXCEED THE ORIGINAL PURCHASE PRICE (AS DEFINED BELOW) PAID TO MANUFACTURER FOR THE PRODUCT. SOME STATES OR PROVINCES DO NOT ALLOW EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE RETAIL PURCHASER WITH RESPECT TO THE LIMITED WARRANTY. IT IS EXPRESSLY AGREED THAT THIS LIMITED WARRANTY DOES NOT FAIL OF ITS ESSENTIAL PURPOSE.
2. Disclaimer of Implied Warranties and Conditions. OTHER THAN THE EXPRESS LIMITED WARRANTY HEREIN, WHICH MAY NOT BE ALTERED IN ANY MANNER WITHOUT THE EXPRESS WRITTEN CONSENT OF MANUFACTURER, NEITHER MANUFACTURER NOR ANY OF ITS AFFILIATES MAKES ANY WARRANTY, REPRESENTATION OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO THE POOL COVER OR ANY RELATED SERVICE, ADVICE OR CONSULTATION. IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED TO THE DURATION OF THE LIMITED WARRANTY OR CONDITION FOR THE PRODUCT COVERED THEREBY. SOME STATES OR PROVINCES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE RETAIL PURCHASER. ALL IMPLIED WARRANTIES AND CONDITIONS, WHETHER STATUTORY OR OTHERWISE, ON PRODUCTS OR SALES NOT COVERED BY THE LIMITED WARRANTY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, NON-INFRINGEMENT AND TITLE, ARE HEREBY EXPRESSLY DISCLAIMED BY MANUFACTURER AND ITS AFFILIATES AND WAIVED TO THE FULLEST EXTENT ALLOWED BY LAW AND WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY PRODUCTS NOT COVERED BY THE LIMITED WARRANTY AND ANY SERVICE, ADVICE OR CONSULTATION ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND ANY WARRANTIES AND CONDITIONS IN CONNECTION THEREWITH IMPLIED BY ANY COURSE OF DEALING OR USAGE ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
3. Exclusive Remedies. If the Limited Warranty is applicable, any replacement or repair shall only be warranted until the conclusion of the original warranty term and any repair may be performed by either Manufacturer or its affiliates at Manufacturer’s option. IN NO EVENT SHALL THE TOTAL LIABILITY OF MANUFACTURER AND ITS AFFILIATES UNDER THE LIMITED WARRANTY EXCEED THE PURCHASE PRICE PAID TO MANUFACTURER OR ITS DESIGNATED SALES AFFILIATE FOR THE POOL COVER TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. FOR THE AVOIDANCE OF DOUBT, THE “PURCHASE PRICE” PAID TO MANUFACTURER OR ITS DESIGNATED SALES AFFILIATE MEANS EITHER (a) THE WHOLESALE PRICE PAID BY AN INTEGRA POOL COVERS® PRODUCT DEALER OR OTHER RESELLER IF THE RETAIL PURCHASER PURCHASED THE POOL COVER FROM A DEALER OR RESELLER OR (b) THE RETAIL PRICE PAID BY THE RETAIL PURCHASER TO MANUFACTURER OR ITS DESIGNATED SALES AFFILIATE IF THE RETAIL PURCHASER PURCHASED THE POOL COVER DIRECTLY FROM MANUFACTURER OR ITS DESIGNATED SALES AFFILIATE, WITH THE PURCHASE PRICE IN EACH CASE BEING ONLY THAT AMOUNT PAID FOR THE POOL COVER ITSELF AND NO OTHER RELATED PRODUCTS, EQUIPMENT, SURROUNDS, COPING, LANDSCAPING OR OTHER WORK OR ASSOCIATED PROJECT COSTS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY PROVISIONS OF APPLICABLE LAW THAT CANNOT BE WAIVED BY CONTRACT AND THAT ARE NECESSARILY APPLICABLE NOTWITHSTANDING A CONTRACTUAL CHOICE OF OTHER LAW, THE REMEDIES SET FORTH ABOVE CONSTITUTE THE RETAIL PURCHASER’S SOLE AND EXCLUSIVE REMEDIES, AND THE SOLE OBLIGATION AND LIABILITY OF MANUFACTURER AND ITS AFFILIATES, FOR ANY BREACH OF THE LIMITED WARRANTY OR FOR BREACH OF ANY OTHER COVENANT, “DUTY” OR OBLIGATION ON THE PART OF MANUFACTURER.
4. Transfer of Limited Warranty. The original retail purchaser may transfer any remaining portion(s) of the Limited Warranty then in effect within five (5) years of the date the Pool Cover was originally purchased by notifying Manufacturer in writing of the change in ownership and providing Manufacturer with the name, address, telephone number and email address of the new owner (the “Authorized Transferee“). Any such transfer must occur within one (1) month of the change in ownership and shall be effective when the Authorized Transferee has confirmed receipt of the Limited Warranty and agreement to the terms and conditions thereof to Manufacturer in writing (or in such other form as Manufacturer requires). For the avoidance of doubt, any such transfer shall not extend the Limited Warranty coverage periods for the relevant components.
5. Third-Party Products. Neither Manufacturer nor its affiliates shall have any warranty or other obligation with respect to goods or materials manufactured by third parties, and the warranty (if any) of the respective third-party manufacturer(s) will instead apply. The Retail Purchaser agrees to be bound by the terms, covenants and conditions of the respective third-party manufacturers’ warranties and to look solely to such manufacturers in the event of a breach of any such warranties. The Retail Purchaser agrees that the disclaimers in Section (D)(2) above shall apply equally to any goods or materials manufactured by third parties.
6. Governing Law; Jurisdiction and Venue. THIS LIMITED WARRANTY GIVES THE RETAIL PURCHASER SPECIFIC LEGAL RIGHTS, AND THE RETAIL PURCHASER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR PROVINCE TO PROVINCE. Except to the extent expressly prohibited by provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law: (a) any and all disputes, claims, liabilities, proceedings and/or causes of action (whether in contract or tort, or granted by statute) that may be based upon, arise out of or relate to this Limited Warranty, the Pool Cover, and/or the rights and obligations of Manufacturer and the Retail Purchaser in connection with the foregoing (“Claims”), shall be governed by and construed in accordance with the internal laws of the State of Tennessee, without regard to conflicts of law principles, and the arbitration provision in this Limited Warranty shall be governed by the Federal Arbitration Act (United States); and (b) subject to (and without limiting or waiving) the provisions of Sections D(7) through (9) below, the Retail Purchaser and Manufacturer irrevocably agree to submit to the exclusive jurisdiction of the state or federal courts located in Knoxville, Knox County, Tennessee, or, to the extent Manufacturer’s principal place of business is at any time relocated outside Knoxville, Tennessee, then in the city and county in which Manufacturer’s principal place of business is located at the time the action is initiated, for the resolution of any such Claims.
7. Arbitration. By purchasing products or making a claim under this Limited Warranty, the Retail Purchaser is agreeing that, except to the extent expressly prohibited by provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law, and subject to the provisions of this Section and Section D(6) herein, ANY AND ALL CLAIMS SHALL BE SUBMITTED TO BINDING ARBITRATION UNDER THE AUTHORITY OF THE FEDERAL ARBITRATION ACT (UNITED STATES) OR THE TENNESSEE UNIFORM ARBITRATION ACT, AS APPLICABLE, AND SHALL BE DETERMINED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION PURSUANT TO ITS THEN-CURRENT COMMERCIAL ARBITRATION RULES AND PROCEDURES. The arbitration shall take place in Knoxville, Knox County, Tennessee or, if Manufacturer has relocated its principal place of business from Knoxville, Tennessee, then in the city where Manufacturer’s principal place of business is located at the time the action is initiated. The arbitrator must follow the law, may not disregard the express terms of this Limited Warranty, including without limitation the choice of law in Section D(6), and may not assess punitive or exemplary damages against Manufacturer or make any award that extends, modifies or suspends any lawful term of this Limited Warranty. A judgment may be entered upon the arbitration award by any federal, provincial or state court in the state or province where Manufacturer maintains its principal place of business or the Retail Purchaser resides at the time the action is initiated. NEITHER THE RETAIL PURCHASER NOR MANUFACTURER SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN ARBITRATION OR ARBITRATE AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this Section is found to be unenforceable, such provision shall be severed and the remaining arbitration terms shall be enforced, provided that no class arbitration shall be permitted. Notwithstanding the arbitration requirements of this Section, the requirement to arbitrate shall not apply to any action for declaratory or equitable relief, including without limitation injunctive relief, brought at any time, including without limitation prior to or during the pendency of any arbitration proceedings initiated hereunder.
8. No Class Actions. Subject to the arbitration requirements in Section D(7), and except to the extent expressly prohibited by provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law, THE RETAIL PURCHASER AND MANUFACTURER AGREE THAT EACH MAY BRING CLAIMS (AS DEFINED IN SECTION D(6) ABOVE) AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT IN A PRIVATE ATTORNEY GENERAL CAPACITY OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, AND NEITHER WILL SEEK TO COORDINATE OR CONSOLIDATE ANY SUCH CLAIMS WITH ANY OTHER PROCEEDING. Unless both the Retail Purchaser and Manufacturer agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
9. Jury Waiver. SUBJECT TO THE ARBITRATION REQUIREMENTS IN SECTION D(7), AND WITHOUT LIMITING OR WAIVING THE SAME, EACH OF THE RETAIL PURCHASER AND MANUFACTURER ACKNOWLEDGES AND AGREES THAT SUCH PARTY HAS HAD AN OPPORTUNITY TO CONSULT WITH COMPETENT LEGAL COUNSEL AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECION WITH ANY CLAIMS (AS DEFINED IN SECTION D(6) ABOVE), THE PROVISIONS OF ANY FEDERAL, PROVINCIAL, STATE OR LOCAL LAW, REGULATION OR ORDINANCE THAT CAN BE WAIVED BY CONTRACT NOTWITHSTANDING. SOME STATES OR PROVINCES DO NOT PERMIT THE WAIVER OF A JURY TRIAL, SO THIS PROVISION MAY NOT APPLY TO THE RETAIL PURCHASER.
10. Sole Recourse. By purchasing products or making a claim under this Limited Warranty, the Retail Purchaser is agreeing that, except to the extent expressly prohibited by provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law: (a) THIS LIMITED WARRANTY MAY ONLY BE ENFORCED AGAINST, AND ANY CLAIMS MAY ONLY BE BROUGHT AGAINST, MANUFACTURER and not against any direct or indirect parent, subsidiary or other affiliate of Manufacturer or any past, present or future equity owner, director, officer, manager, employee, incorporator, affiliate, agent, attorney, lawyer or representative of, or any financial advisor or lender to, Manufacturer or any of the foregoing (“Released Persons”); (b) no Released Person shall have any liability on any basis (whether in contract or tort, at law or in equity, granted by statute or otherwise) for any Claims; (c) the Retail Purchaser will in no event threaten or assert any Claim against any of the Released Persons, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization or otherwise and, to the maximum extent permitted by the governing law specified in Section D(6), the Retail Purchaser hereby waives and releases all such Claims against such Released Persons that may otherwise be available at law or in equity to avoid or disregard the entity form of Manufacturer or otherwise impose liability of Manufacturer on any Released Person; and (d) the Retail Purchaser shall indemnify Manufacturer and each of the Released Persons from all claims, losses, injuries, damages, fees, costs, expenses, complaints and liabilities incurred or required as a result of a breach by the Retail Purchaser of any of the provisions of this Section.
11. Sole Warranty; Severability and Reformation. By purchasing products or making a claim under this Limited Warranty, the Retail Purchaser is agreeing that this Limited Warranty is the sole warranty offered by Manufacturer or its affiliates applicable to the Pool Cover and supersedes any prior understandings, agreements or representations, whether written or oral, by or among Manufacturer and/or its affiliates and the Retail Purchaser regarding the Limited Warranty. If (but only to the extent that) any provision of this Limited Warranty is declared or found to be illegal, unenforceable or void (in whole or in part) under provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law, the Retail Purchaser and Manufacturer agree that: (a) such provision may be deemed severable and the remainder of this Limited Warranty not affected by such provision shall be enforced to the fullest extent permitted by law; (b) it is their specific intent and request that the adjudicative body called upon to interpret or enforce the Limited Warranty modify such provision to the minimum extent necessary so as to render it legal and enforceable while preserving the intent thereof; and (c) if such amendment is not possible, another provision that is legal and enforceable and achieves the same objectives shall be substituted therefor.
12. No Inducement; Non-Reliance. By purchasing products or making a claim under this Limited Warranty, the Retail Purchaser is agreeing that: (a) the Retail Purchaser has not been induced to purchase any Integra Pool Covers® products by any representation, warranty or condition not expressly set forth in this Limited Warranty; (b) neither Manufacturer nor any of its affiliates is making or has made any representation, warranty or condition, expressed or implied, at law or in equity, to the Retail Purchaser in respect of any Integra Pool Covers® products or any other matter or thing whatsoever that is not expressly set forth herein; (c) no representative of Manufacturer has any authority, express or implied, to make any representation, warranty, condition or agreement not specifically set forth herein and the Retail Purchaser is not relying upon and has not relied upon any such other representation, warranty, condition or agreement; and (d) except to the extent expressly prohibited by provisions of applicable law that cannot be waived by contract and that are necessarily applicable notwithstanding a contractual choice of other law, the Retail Purchaser’s purchase of any Integra Pool Covers® products is subject only to the specific representations, warranties and conditions expressly set forth in this Limited Warranty, subject to the limitations herein.
13. Assignment. Manufacturer may assign, novate or otherwise transfer any or all of its rights and/or obligations under this Limited Warranty to an affiliate at any time and such transferee shall automatically be substituted as Manufacturer hereunder.