LIMITED PRODUCT WARRANTY

Subject to the limitations and conditions below, Lotus & Windoware, Inc. (d/b/a Lotus Foam Products) (“we,” “us,” or “our”) warrants to the customer named in the purchase order accompanying this limited warranty (“Original Purchaser”), for three years after we ship a product under such purchase order (a “Product”) to the Original Customer from our warehouse at 6225 Global Drive, Suite 110, Memphis, TN 38141 (the “Warranty Period”), that such Product will be free from defects in materials and workmanship that materially affect performance and functionality (this “Warranty”).

LIMITATIONS AND CONDITIONS OF WARRANTY

  1. This Warranty is valid for the Original Purchaser only, and only after we have received payment in full for all invoices for the total purchase price for the Product.  The Original Purchaser may not transfer or assign any portion of this Warranty to any other person or entity.  Any attempted transfer or assignment of this Warranty or any claim, representation, or other statement by the Original Purchaser or any agent or representative of the Original Purchaser that this Warranty extends or may be assigned, or is otherwise available, to any person or entity except the Original Purchaser will void this Warranty in its entirety and release us from all obligations hereunder.

  2. This Warranty applies only to Products delivered for use in the continental United States of America unless expressly stated otherwise.

  3. This Warranty applies only if the Product is installed in accordance with our recommended care and maintenance instructions that accompany and are delivered to the Original Purchaser with this Warranty.

  4. This Warranty does not cover any damage to any Product caused by:
  1. its installation on any surface;
  2. its adhesion to a boat deck or any other applied surface;
  3. deformation, fading, discoloration, or polymer degradation resulting from non-defective materials; 
  4. exposure to temperatures exceeding 165°F, including those caused by sunlight amplification from reflective surfaces or refraction through mediums like windshields or similar structures; 
  5. failure to follow product instructions or perform necessary maintenance;
  6. alterations or modifications to the Product;
  7. unauthorized repairs;
  8. normal wear and tear; or
  9. external factors such as accidents, misuse, or other circumstances beyond our reasonable control.

WARRANTY CLAIMS

This Warranty applies only to defects or failures in performance first appearing within the Warranty Period and only if we are notified in writing within 60 days after the Original Purchaser first knows or, with the exercise of reasonable diligence, should know that such alleged defect or failure exists.

The Original Purchaser is responsible for maintaining adequate records to:

  1. establish the dates of receipt and installation of the Product, and the date the Original Purchaser first had knowledge of any defect in or failure of such Product, for which any claim under this Warranty is made; and
  2. demonstrate that the defect or condition allegedly covered by this Warranty was due to breach of this Warranty as provided herein and was not due to other causes, including causes excluded under the limitations and conditions herein.  We will have no liability for any claims under this Warranty for which the Original Purchaser does not establish, to our reasonable satisfaction, any of the foregoing.

     

We must have a reasonable opportunity to inspect the Product alleged not to conform with this Warranty and we will have no liability under this Warranty unless and until we are given such opportunity and, within a reasonable time after receiving notice of the alleged defect or non-conformance, we have performed such inspection.  All decisions regarding the existence of defects in material or workmanship or any failure of warranted conditions of the Product, and whether such defects or failures result, in whole or in part, from any causes excluded under the limitations and conditions herein, will be made by us in our reasonable judgment and will be final and bind the Original Purchaser.

To request warranty service during the Warranty Period, the Original Purchaser must contact our customer service department at (901) 362-9093 or by email at orders@lotusfoamprods.com to obtain a Warranty claim number.  The Original Purchaser must submit images of the claimed defective area(s) of the Product for our evaluation or, at our option, the Original Purchaser, at its expense, must mail the alleged defective Product to us at:

Lotus Foam Products      
ATTN:  Warranty Department  
6225 Global Drive  
Memphis, TN 38141

The Original Purchaser is responsible for all shipping costs to send an alleged defective Product to us at our address above and any return shipment by us of the repaired or a replacement Product to the Original Purchaser.

LIMITED LIABILITY

If, after the Original Purchaser delivers a timely Warranty claim, we determine a Product warranted herein does not comply with this Warranty, we will have the right, at our option, to elect one of the following as the Original Purchaser’s sole and exclusive remedy for any breach of warranty or other claim that the Original Purchaser has or may have as a result of such defective Product:

  1. To repair or replace the defective Product.  If we elect to repair or replace a defective Product, this Warranty will remain in effect for the repaired or replaced Product only for the remainder of the Warranty Period applicable to the original Product. 
  2. To refund to the Original Purchaser the purchase price the Original Purchaser paid for the Product for which the Warranty claim is made, or if the Original Purchaser's claimed losses resulting from the defective Product are less than the full purchase price it paid for the Product, we may refund a portion of such purchase price equal to the Original Purchaser's claimed losses.

The remedy we select will be the sole and exclusive remedy under this Warranty or for any other claim arising from or in any way relating to defects in or any other condition or use of the Product covered by this Warranty, however caused, and regardless of whether any such claim is based upon warranty, contract, negligence (including negligence in manufacturing or design), strict liability or any other theory, the remedy for such claim is limited to repair or replacement of such Product or our repayment of all or part of the purchase price it received for the Product, each as provided above.

WE WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, OR OTHER COMMERCIAL LOSS OR INJURY, WHETHER OR NOT WE HAVE BEEN ADVISED OF OR ARE OTHERWISE ON NOTICE OF THE POTENTIAL FOR SUCH DAMAGES.  BY ITS ACCEPTANCE OF THIS WARRANTY, THE ORIGINAL PURCHASER WAIVES ANY RIGHT TO SEEK OR RECOVER ANY SUCH DAMAGES AND AGREES THAT ITS REMEDIES FOR ANY BREACH OF THIS WARRANTY OR FOR ANY DEFECTS IN OR FAILURES IN PERFORMANCE OF THE PRODUCT WILL BE SOLELY AND EXCLUSIVELY AS PROVIDED ABOVE.

This Warranty is the only warranty made in connection with the sale and distribution of the Product.  We make no representations nor any warranties, either express, implied or statutory, relating to the Product except as expressly provided herein, and we expressly disclaim all such representations and warranties, including, without limitation, any implied warranty of merchantability or fitness for a particular use or purpose of the Product.  By purchasing the Product, the Original Purchaser acknowledges the foregoing disclaimer, and further acknowledges and agrees that, except as expressly provided herein, neither we nor anyone acting for us or on our behalf has made any representation or warranty, either express, implied or statutory, about the Product, except as expressly provided herein, and the Original Purchaser waives all such representations and warranties.

If any dispute, claim, or disagreement (collectively, “Claims”) arises under this Warranty, we and the Original Purchaser will mediate such Claims before commencing any judicial proceeding regarding such Claims.  The mediation will be conducted in Shelby County, Tennessee, at a time and place and with a mediator acceptable to us and the Original Purchaser.  Any mediation fees will be divided equally between us and the Original Purchaser.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, BY OUR DELIVERY AND THE ORIGINAL PURCHASER’S ACCEPTANCE OF THIS WARRANTY, EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING FROM THIS WARRANTY OR ANY DEFECT OR NON-COMPLIANCE WITH THIS WARRANTY OF THE PRODUCT.  

This Warranty, its validity, construction, interpretation, enforcement, and the rights of the parties hereto will be determined under, governed by, and construed in accordance with the laws of the State of Tennessee, without regard to principles of conflicts of law.  By accepting this Warranty, the Original Purchaser agrees that all actions or proceedings arising in connection with this Warranty or in any way related to the Product shall be litigated in courts, mediated, or arbitrated, if the parties agree to any such process or procedure, exclusively in Shelby County, Tennessee.  

If any provision of this Warranty conflicts with applicable law, that provision will be fully severable; this Warranty will be construed and enforced as if the conflicting provision had never been a part hereof; and the remaining provisions of this Warranty will remain in full force and effect and will not be affected by the conflicting provision or by its severance from this Warranty.  

ACCEPTANCE OF WARRANTY BY ORIGINAL PURCHASER  

By registering with our website and submitting a purchase order for a Product to us thereon, the Original Purchaser confirms to us that an authorized representative of the Original Purchaser has read and understands, and that the Original Purchaser knowingly accepts, the terms, limitations, and conditions of this Warranty as provided herein, and the Original Purchaser acknowledges and agrees that the terms, limitations, and conditions of this Warranty as provided herein are reflected in the purchase price paid for the Product, are an essential part of the basis for the bargain between the Original Purchaser and us regarding to the sale and purchase of the Product, and that we would not have given an express written warranty of our Product, nor made this sale to the Original Purchaser, but for such terms, limitations, and conditions of this Warranty as provided herein.