PARTS WARRANTY & REMEDIES

XCALLIBER IS BOTH A MANUFACTURER & DISTRIBUTOR OF PRODUCTS. XCALLIBER SHALL ENDEAVOR TO PROVIDE THE FULL MANUFACTURER WARRANTY FOR THE PRODUCTS AVAILABLE TO BUYER, AS APPLICABLE. ALL EXPRESS OR IMPLIED WARRANTIES ARE LIMITED TO THOSE EXPRESSLY PROVIDED BY SUCH ORIGINAL MANUFACTURER, REMANUFACTURER, CUSTOMER, DEALER, OR JOBBER OF THE PRODUCT SUPPLIED HEREUNDER (“THIRD PARTY”); AND XCALLIBER MAKES NO WARRANTY OR OTHER DUTY OF ITS OWN ON ANY PRODUCT, INCLUDING THOSE WARRANTED BY THE THIRD PARTY, UNLESS IT DELIVERS TO BUYER A SEPARATE WRITTEN CERTIFICATE SPECIFICALLY WARRANTING THE PRODUCT. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED WARRANTIES AND XCALLIBER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCT, EXCEPT FOR WARRANTY OF TITLE.

XCALLIBER AND THE THIRD PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING PRODUCT WHEN THE PRODUCT IS NOT INSTALLED AND/OR USED IN STRICT ACCORDANCE WITH GOOD INSTALLATION AND MAINTENANCE PRACTICES IN THE TRANSMISSION REPAIR INDUSTRY. XCALLIBER AND THE THIRD PARTIES DO NOT WARRANT PRODUCT THAT HAS BEEN ALTERED; IMPROPERLY INSTALLED, MAINTAINED OR REPAIRED; COMBINED WITH NON-XCALLIBER OR SUBSEQUENT OEM PRODUCTS; CONTAMINATED WITH OIL, GREASE, OR ANTIFREEZE; DAMAGED AS A RESULT OF NORMAL COSMETIC OR MECHANICAL WEAR AND TEAR, ACCIDENT OR LACK OF REASONABLE AND PROPER PROTECTION DURING STORAGE, OVERHEATING, OR DAMAGED BY ACCIDENT, NEGLIGENCE, MISUSE, RACE OR OFF-ROAD USE OR ANY OTHER UNAUTHORIZED USE. XCALLIBER SHALL HAVE NO LIABILITY FOR BREACH OF WARRANTY CLAIMS BASED ON ALLEGATIONS OF DEFECTIVE DESIGN OR NEGLIGENT MANUFACTURE OR TESTING, PATENT OR INFRINGEMENT CLAIMS, LIABILITY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DAMAGES TO OTHER PARTS OR EQUIPMENT, COST OF CAPITAL OR INTEREST, ANY CLAIM FOR LABOR CHARGES INCURRED IN DIAGNOSING OR REPLACING A DEFECTIVE PRODUCT, TOWING CHARGES, TELEPHONE CALLS, UNAUTHORIZED REPAIRS, INJURY TO PERSON OR PROPERTY, AND OR LABOR COSTS FOR TRANSMISSION REMOVAL AND INSTALLATION.

IF XCALLIBER, WITHOUT SEPARATE COMPENSATION THEREFORE, FURNISHES BUYER WITH ADVICE OR OTHER ASSISTANCE CONCERNING ANY PRODUCT OR EQUIPMENT IN WHICH THE PRODUCT MAY BE INSTALLED, THE FURNISHING OF SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT XCALLIBER TO ANY LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.

AS THE EXCLUSIVE REMEDY, IN ACCORDANCE WITH THE XCALLIBER TERMS AND PROVIDED SUCH PRODUCT IS DEEMED BY XCALLIBER TO BE DEFECTIVE, XCALLIBER SHALL, AT ITS SOLE OPTION

(I) REPAIR OR REPLACE THE DEFECTIVE PRODUCT OR COMPONENT(S) THEREOF;

(II) PROVIDE BUYER WITH A CREDIT ON ITS ACCOUNT IN AN AMOUNT EQUAL TO THE ORIGINAL PURCHASE PRICE OF THE DEFECTIVE PRODUCT; AND/OR

(III) REQUIRE THAT BUYER TENDER ANY SUCH CLAIMS TO THE THIRD PARTY OF THE PRODUCT, UPON WHICH XCALLIBER MAY ENDEAVOR TO ASSIST BUYER IN RESOLUTION.

XCALLIBER WILL ACCEPT WARRANTY CLAIMS ONLY FROM THE BUYER THAT PURCHASED THE PRODUCT DIRECTLY FROM XCALLIBER, AND THIS IS NON-TRANSFERABLE OR ASSIGNABLE TO ANY RESALE OF PRODUCT THEREAFTER. ALL WARRANTY CLAIMS MUST INCLUDE A RETURN TO XCALLIBER OF THE ALLEGEDLY DEFECTIVE PRODUCT, AND SHIPPED F.O.B. XCALLIBER’S RECEIVING DOCK, UNLESS OTHERWISE INSTRUCTED. XCALLIBER RESERVES THE RIGHT TO EXAMINE ALL RETURNED PRODUCT TO DETERMINE WHETHER OR NOT THE RETURN QUALIFIES FOR THE EXCLUSIVE REMEDY SET FORTH IN THESE XCALLIBER TERMS. NO BENEFITS OR REMEDIES ARE AVAILABLE UNDER THIS LIMITED WARRANTY WHILE THE INVOICE FOR THE PRODUCT REMAINS OUTSTANDING.

IN ANY ACTION BROUGHT BY BUYER AGAINST XCALLIBER, REGARDLESS OF THE FORM OR FORUM, XCALLIBER SHALL NOT BE LIABLE TO BUYER, END USER, CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, LIQUIDATED OR PUNITIVE DAMAGES AND, UNDER NO CIRCUMSTANCES SHALL ANY AWARD AGAINST XCALLIBER IN FAVOR OF BUYER, END USER, CUSTOMER OR ANY THIRD PARTY EXCEED THE AMOUNT PAID TO XCALLIBER BY BUYER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH NOTICE IS FIRST GIVEN TO XCALLIBER OF THE CLAIM. XCALLIBER SHALL NOT INDEMNIFY BUYER, END USER, CUSTOMER OR ANY THIRD PARTY FROM POTENTIAL CLAIMS AGAINST THE PRODUCT MANUFACTURER OR THIRD PARTY. THE PARTIES AGREE THAT THE FOREGOING REMEDY IS REASONABLE AND DOES NOT CAUSE THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.

PARTY. THE PARTIES AGREE THAT THE FOREGOING REMEDY IS REASONABLE AND DOES NOT CAUSE THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. IN THE EVENT OF BUYER’S RESALE, REDISTRIBUTION, INSTALLATION OR OTHER SIMILAR ACTION OF ANY OF THE PRODUCTS SOLD HEREUNDER, IN WHATEVER FORM, BUYER SHALL MAKE NO WARRANTY ON ITS OWN BINDING XCALLIBER, THIRD PARTY OR ANY OTHERS, AND SHALL NOTIFY SUCH PURCHASER OF THESE XCALLIBER TERMS AND DISCLAIMER OF ANY XCALLIBER WARRANTY, IN WRITING OR OTHERWISE. BUYER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS XCALLIBER (AND XCALLIBER'S PARENT COMPANY, ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS OR ASSIGNS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS AND EMPLOYEES, INDIVIDUALLY AND COLLECTIVELY, "INDEMNITIES") AGAINST ANY AND ALL CLAIMS, DEMANDS, JUDGMENTS, LOSS, INJURY, DEATH, DAMAGE, LIABILITY, DEFICIENCY, ACTIONS, INTEREST, AWARD, PENALTY, FINE, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEY AND PROFESSIONAL FEES AND COSTS, AND THE COST OF ENFORCING ANY RIGHT TO INDEMNIFICATION HEREUNDER AND THE COST OF PURSUING ANY INSURANCE PROVIDERS ARISING OUT OF OR OCCURRING IN CONNECTION WITH THE PRODUCTS PURCHASED FROM XCALLIBER AND INVOLVING BUYER'S ACTS, OMISSIONS, NEGLIGENCE, MISCONDUCT OR BREACH OF XCALLIBER’S TERMS.