LIMITED PRODUCT WARRANTY
|PROJECT NAME & ADDRESS:||OGX Resources - Phase 2 420 Marienfield St, Midland, Texas 79701|
|FACADESXI PRODUCT / SYSTEM / PRODUCT:||Xi-Coatings: DAFS – Soffit, DAFS – Cement Board|
|OWNER:||OGX Resources 400 Marienfield St, Midland, Texas 79701|
|APPLICATOR:||Howard Butts Lath & Plaster|
|DATE OF PROJECT SUBSTANTIAL COMPLETION:||December 22, 2021|
Limited Warranty. FacadesXi (FXI) warrants to the owner (“owner”) that, for a period of 5 years from the date of the substantial completion of the project utilizing the DAFS – Soffit and DAFS- Cement Board including; Xi-Base, Xi-Mesh and Xi-Textured Acrylic Finish (“product”), such product will materially conform to the specifications and product data sheets when installed per the FacadesXi manufacturer’s product datasheets in effect as of the date of substantial completion under the corresponding building project. The product will be free from the loss of its bond from approved substrates, peeling, flaking, or chipping (“defects”) under normal usage for the duration of the Limited Warranty Period.
No warranty for the system/product is made for cracking, workmanship, or aesthetics. The obligations contained herein do not cover any material used on the system/product, which was not supplied by FXI.
This Limited Warranty does not cover cracks, defects or damage caused by:
- a)Structural or design defects
- b)Misuse, vandalism, civil disobedience, acts of war, force majeure
- c)Any condition caused by any negligence or accidents in maintaining the system/product
- d)Causes beyond the reasonable control of FXI including but not limited to acts of God, lightning, hurricanes, tornadoes, earthquakes, fires, flood, chemical fumes or foreign substances in the atmosphere or by other unusual natural occurrences, embargoes, war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, and pandemics.
- e)Damage caused by environmental conditions beyond what the system/product has been tested, designed or approved for, accidents, abuse, impact damage, misuse, excessive weather, mishandling, shipment, improper storage after shipment, freezing or abnormal conditions of temperature or moisture, improper substrate, improper or defective application, improper combination with the other products of the Manufacturer or with the products of third parties.
- f)Failure to comply with the Manufacturer`s instructions and advice, or inadequate or defective architectural or engineering designs of others
- g)Water penetration due to leaks through the fenestration system/product, to include doors, windows, penetrations, or any other items installed which are not part of the system/product.
- h)Mixing FXI materials with other chemicals, compounds, or materials not specifically required by FXI Specifications.
- i)Aesthetic fading of color palettes which utilize organic pigments as such pigments are less fade-resistant than others.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE LIMITED WARRANTY ABOVE, FXI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SYSTEM/PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; [OR] (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; [OR] (C) WARRANTY OF TITLE; [OR] (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
This warranty is nontransferable. This warranty is issued to the original owner of the structure into which FXI Materials shall have been incorporated and may not be transferred or assigned. Since the system/product is building materials and is not intended to be sold to a "consumer" except as part of or as a major addition thereto, this warranty shall not apply to any party constituting a "consumer" or claiming status as a "consumer" as such term is defined by the Magnuson-Moss Warranty Act.
FXI is only liable under this Limited Warranty if the system/product is used in the manner intended by the manufacturer as specified in the written instructions furnished with the system/product. FXI shall not have any obligations under this Limited Warranty unless the owner notifies FXI, in writing, within thirty (30) days of the date of discovery of the alleged defects.
FXI shall be allowed:
- 1.a reasonable period of time,
- 2.authorization to remove samples, and
- 3.to perform any testing FXI deems necessary
- 4.to investigate and determine the cause of the defect(s).
The Owner shall provide and cause any temporary repairs to be accomplished in a timely manner to prevent further damage to the structure or contents of the building until the cause of the defect(s) is determined and permanent repair recommendations may be made. FXI shall not be responsible for incidental or consequential damages of any kind.
LITIGATION AND/OR ALTERNATIVE DISPUTE RESOLUTION
Any claims, disputes or other matters in controversy arising out of or related to the system/product provided by FXI shall be subject to mediation as a condition precedent to binding dispute resolution. A request for mediation shall be made in writing, delivered to the other party to the contract, and filed with the person or entity administrating the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. All mediation fees will be shared equally between the parties. All mediations shall be conducted in Bexar County, Texas, unless agreed upon by the other parties and remote means, such as Zoom, are acceptable.
Any claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its construction industry arbitration rules in effect on the date of the agreement. A demand for arbitration shall be made in writing, delivered to the other party to the contract, and filed with the person or entity administrating the arbitration.
The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
The sole responsibility and liability of FXI under this Warranty shall be for supply, replacement, and installation of any parts of the system/product that fail through defect(s) in material or workmanship at no charge to owner during the Limited Warranty period. This coverage is applicable only if Owner gives FXI written notice of defects to the system/product within thirty (30) days from the date of discovery of such defects.
The sole and exclusive remedy for a breach of this limited warranty is replacement materials of only the specific portion of the installation that is proven to be defective.
This writing constitutes the final expression of the parties’ agreement, and it is a complete and exclusive statement of the terms of that agreement.
This Limited Warranty shall be interpreted under the laws of the State of Texas.
FXI shall have no further obligation or liability of any kind, and it is further agreed and understood that the price stated for the system/product is consideration for the limitation of FXI liability hereunder.
This Limited Warranty shall become null and void if in the sole judgement of FXI, any of the following events shall occur:
- 1.If after installation of the system/product, there are any alterations or repairs made to the building that affect any component of the system/product;
- 2.Failure by the Owner or any of the Owner's tenants to use reasonable care in maintaining the system/product; or
- 3.If Owner fails to comply with every term or condition stated herein.
The building, system/product, and products require periodic maintenance in accordance with FXI documents, local environmental conditions, and good building practices. In no case is FXI responsible for incidental and consequential damages for failure to perform maintenance procedures including inspection and repair of sealants, flashings or other material failures that may results in the damage of the building.
FXI’s failure at any time to enforce any of the terms or conditions stated herein shall not be construed to be a waiver of such provisions
This Limited Warranty is void if not executed by an authorized FXI representative, the owner, AND a registered and listed FXI Applicator and if FXI has not been paid in full for all materials under this Limited Warranty.