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Message |
Chris Grimm, CSI, CCS, LEED-AP, MAI, RLA
Senior Member
Username: tsugaguy
Post Number: 242
Registered: 06-2005
| | Posted on Wednesday, March 24, 2010 - 09:44 am: |    |
99.5% disclaimer, 0.5% warranty!
"Warranty:
The following warranty is made in lieu of all other warranties expressed or implied. Recommendations for proper use of the product are based on tests believed to be reliable. Any goods proven to be defective due to materials will be replaced, or purchase price refunded, but in no event shall the manufacturer be responsible for damages in excess of the purchase price. User shall determine the suitability of the product for its intended use and assumes all risks of its use or handling."
This is only a small portion of one such "warranty" in the snow guards market. Only about 3 manufacturers claim to even have a warranty at all. In none of them do I find a description of what constitutes a failure, and only 1 of them has a warranty period. Instead it is much more oriented to excusing themselves from what would ordinarily be their duties of merchantability.
I'm getting a mental picture of the company's attorney handing their carefully crafted writing to be published along with marketing materials, and the marketing people then mark out "disclaimer" at the top and change it to "warranty"!
Here's another one:
"Seller makes no warranty of any kind, express or implied, including but not limited to, any warranty of merchantability or warranty of fitness for a particular purpose... Buyer acknowledges that Buyer is making this purchase based upon Buyer is specifications to Seller of the goods required by Buyer, and not by reason of any statement made by or on behalf of Seller as to the merchantability, specific attributes or otherwise of the goods."
This one is just so sad it is actually starting to seem funny.
So in the heading and in one sentence they may say there is a warranty, and then in half a page or more of what may appear to be just mumbo-jumbo, they retract everything that could possibly be a warranty. It might as well say "Sure, we'll send you some new (also defective) products too, but only for as long as we feel like it, and only if you can prove it was our fault, and by the way, nothing is our fault." |
Robert W. Johnson
Senior Member
Username: robert_w_johnson
Post Number: 64
Registered: 03-2009
| | Posted on Wednesday, March 24, 2010 - 11:35 am: | |
Here are a couple I used as examples in classes I taught on the subject some years ago so as you can see the dates are not current. I have not checked to see if these manufacturers still have similar warranty statements.
“NOTICE: …..... Because use conditions and applicable laws may differ from one location to another and may change from time, Customer is responsible for determining where products and the information in this document are appropriate for Customer’s use and for ……..… Seller assumes no obligation or liability for the information in this document. NO WARRANTIES ARE GIVEN; ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
© September 1996 The Dow Chemical Company”
"All Products Will:
• Be free from defects in material and workmanship at the time of shipment.
• Conform, within reasonable variation allowable for this industry, to the description (size, color,
pattern) on the sales order.
• Not wear out within their respective warranty periods if properly installed, maintained, and used in the right conditions.
Warranties Will Be Void If:
• Burke Adhesives are not used.
• Products are not installed and maintained according to Burke instructions.
• Products are not first quality (I.e. seconds, imperfects).
Conditions Or Affects Not Warranted:
• Exact color or pattern matches.
• Color degradation caused by sunlight or other excessive UV rays.
• Any indentation caused by high heels or any other force exceeding 600 PSI.
• Problems caused by excessive moisture, hydro-static pressure, or alkali.
• Abuse or abnormal conditions.
• BurkeTileTM installed in areas exposed to animal fat and petroleum byproducts.
Warranty Terms:
• Any defects must be reported to Burke within 30 days after discovery of defect.
• Always dry lay floor before installation to inspect for defects.
• Burke will not be liable for labor to remove and reinstall defective products that could have been replaced before installation.
• Burke reserves the right to inspect all claims against our warranties.
• Burke will not be liable for shipping costs of assumed defective products if the product is found not to be defective.
• In the event that labor charges are paid, Burke will pay normal and reasonable rates consistent with industry standards as determined by Burke.
• Burke does not warranty any implied promise or guarantee by any salesman or representative.
• Any special condition warranties must be in writing from Burke’s president or director of all floor sales.
Burke Flooring Products, 1997"
Also used another one from Grace that was a full page long which contained mainly conditions and then the usual disclaimer of any other implied or express warranties including the warranty for mechantability and fitness for a particular purpose.
The UCC implied warranty of fitness for purpose is very commonly excluded in manufacturer's warranties.
I really love the one where flooring is not warranted for color degradation caused by sunlight.
I also love disclaiming any implied promise or guarantee by any salesman or representative - be careful who you are talking to.
It is pretty obvious of what the classes taught about the "benefits" of manufacturer's warranties. |
John Bunzick, CCS, CCCA, LEED AP
Senior Member
Username: bunzick
Post Number: 1183
Registered: 03-2002
| | Posted on Wednesday, March 24, 2010 - 01:55 pm: | |
All of these are aimed straight at the Uniform Commercial Code. (I recommend reading up on the UCC if you haven't already.) The UCC--a sort of standarized set of laws adopted by states governing buy/sell commercial transactions--lays out very specific expectations. Generally, if a manufacturer says, through literature, a sales agent, advertising etc., that a product is suitable for a particular purpose, then the buyer can rely on that representation. This applies even if the seller did none of those things, but knew how the buyer intended to use the product. This is the "implied warranty" or "merchantability for a particular purpose" that crops up so often.
Whether we think these things are funny, ridiculous, or exasperating, they are almost always part of the condition of sale of the goods in question. You often can't buy the stuff without accepting them, or, by the very act of buying the product, you accept them. |
Sheldon Wolfe
Senior Member
Username: sheldon_wolfe
Post Number: 394
Registered: 01-2003
| | Posted on Wednesday, March 24, 2010 - 02:32 pm: | |
From EIFS literature:
"It is the responsibility of both the specifier and the purchaser to determine if a product is suitable for its intended use. The designer selected by the purchaser shall be responsible for all decisions pertaining to design, detail, structural capability, attachment details, shop drawings and the like. [Company X] has prepared guidelines in the form of specifications, application details, and product sheets to facilitate the design process only. [Company X] is not liable for any errors or omissions in design, detail, structural capability, attachment details, shop drawings, or the like, whether based upon the information prepared by [Company X] or otherwise, or for any changes which purchasers, specifiers, designers, or their appointed representatives may make to [Company X]'s published comments."
So they make this stuff, show what it's for in product data, pictures, pseudo-specifications, and drawings, publish installation instructions, and then say the architect is responsible for whatever happens. |
Ralph Liebing, RA, CSI, CDT
Senior Member
Username: rliebing
Post Number: 1161
Registered: 02-2003
| | Posted on Wednesday, March 24, 2010 - 03:12 pm: | |
So how, in our great wisdom, do we conclusively counter or remedy this situation? [other than superior spec writing] |
Robert W. Johnson
Senior Member
Username: robert_w_johnson
Post Number: 65
Registered: 03-2009
| | Posted on Wednesday, March 24, 2010 - 04:07 pm: | |
The following are my general warranty specification practices.
Remember who is the buyer of construction products for a construction project. Only in special situations is it the Owner. It is usually the subcontractors and the contractor. Just because a manufacturer has his warranty included on his packaging or in his installation instructions doesn’t mean it applies to the Owner of the project.
Only require a manufacturer’s warranty when you know what you are getting and are willing to accept the disclaimers and limitations that they contain in comparison to the benefits. I require only a very few manufacturer’s warranties.
When you want an extended warranty on a system or product, specify a special warranty that extends the AIA A201 one-year correction period on materials and installation to the time desired. List unacceptable defects – no leaks for roofing and waterproofing systems. The time periods and other content included in the warranties of specified manufacturers obviously effects what you specify so that you are within industry standards. How the contractor complies with the special extended warranty requirements is between the contractor and his subcontractors and suppliers. The potential weakness of this practice is that you are depending upon the financial stability of the contractor thru the extended warranty periods, although we may have the same concern about many manufactuers in today's economy.
Include protective language about warranties in Division 01:
o Disclaimers and limitations in manufacturer’s warranties do not relieve contractor of his contractual warranty responsibilities.
o Written warranties made to Owner are in addition to contractual, implied, and expressed warranties, and shall not limit duties, obligations, rights and remedies otherwise required by Contract Documents and available under law.
o Warranties shall not deprive Owner of other rights Owner may have under other provisions of Contract Documents and Uniform Commercial Code (UCC).
o Warranties start on the day of substantial completion.
o Owner reserves right to reject non-specified warranties. (If you accept warranties with unwanted disclaimers and limitations, then you have accepted those disclaimers and limitations.) |
Ron Beard CCS
Senior Member
Username: rm_beard_ccs
Post Number: 343
Registered: 10-2002
| | Posted on Thursday, March 25, 2010 - 09:15 am: | |
Question:
If a specification specifically spells the warranty requirements for a product/installation and the manufacturer will not provide it, is the contractor responsible, under the contract, for providing the portion of the warranty that the mfr. refuses to cover; or, is the owner entitled to a credit {Hee Hee!]?
"Fast is good, but accurate is better."
.............Wyatt Earp |
(Unregistered Guest)
Unregistered guest
| | Posted on Thursday, March 25, 2010 - 11:02 am: | |
Perhaps idealistic, but wouldn't this be a breech of contract? The drawings and specificiations are the basis of and itemized in the construction contract, and so if you do not meet their provisions, you are in breech.
May be tough to enforce [look at the pushing an shoving to get a product correction in the same context] but the legal basis appears to be there.
If you don't read the warranty required in the specs, the shame and pox be on you-- because you signed a contract to perform "according to plans and specifications"!!!! |
Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 842
Registered: 03-2003
| | Posted on Thursday, March 25, 2010 - 11:44 am: | |
I assume that "Unregistered Guest" above is Ralph Liebing (You can't hide your writing style, Ralph).
Whether I'm correct or not regarding the author, it should be "breach" and not "breech"--unless you're referring to the "butt" of the contract, which could be either the owner or contractor. ;-)
Ron Geren, AIA, CSI, CCS, CCCA, SCIP
www.specsandcodes.com |
Richard Baxter, AIA, CSI
Senior Member
Username: rbaxter
Post Number: 107
Registered: 12-2004
| | Posted on Thursday, March 25, 2010 - 11:58 am: | |
From one perspective, that notion makes perfect sense. The specs outline the terms and contractors should not bid the project unless they intend to comply with those terms.
But it runs into problems from another perspective. People expect architects and specifiers to do a reasonable amount of research before specifying products. We are expected to know what is offered by manufacturers rather than just blindly demanding whatever we want, whether it actually exists or not. If we make demands that are not standard for at least one manufacturer in the industry – it implies that we are unfamiliar with standard practices and therefore the contractor is justified in not always trusting our specs. The contractor is left with the choice of either having no subcontractor that can meet your demands or simply ignoring your demand so that the work can go forward. Standard practice is to do the latter and then make the architect look like an idiot in front of the owner later when it is revealed that you must not have done your homework when you asked for a warranty that does not exist.
It would be better to simply make it known to manufacturers that you will not specify their products until they change the demands of their warranty. If you can get their assurance, preferably in writing, that they will allow the changes that you desire, then they will have no ground to stand on if they try to deny it to you later on. |
Ralph Liebing, RA, CSI, CDT
Senior Member
Username: rliebing
Post Number: 1162
Registered: 02-2003
| | Posted on Thursday, March 25, 2010 - 12:02 pm: | |
Apologies to all-- did it on the run and did not notice the ID didn't take.
Thought I had corrected the b word, but.....
Thanks, Ron, I wish the devil I could read "my style"-- it's just writin' to me! |
Ron Beard CCS
Senior Member
Username: rm_beard_ccs
Post Number: 344
Registered: 10-2002
| | Posted on Thursday, March 25, 2010 - 01:13 pm: | |
1. <<....it implies that we are unfamiliar with standard practices and therefore the contractor is justified in not always trusting our specs.>>
Just because a specification requirement deviates from the norm does not mean that the specifier is unfamilar with the standard practice. There are many times in the past where I specified requirements that may have seemed abnormal, but they were necessary to meet a certain project condition. Also, what is standard practice in an industry isn't always 'standard practice' in the field. "Hey! I don't care what is says on the package label, I've being doing this way for 20-years."
2. <<...later when it is revealed that you must not have done your homework when you asked for a warranty that does not exist.>>
Most mfrs. have more than one warranty. They only publish their "first offer." Roofing mfrs. say they have a 20-year warranty but when pressed they say "Ok, we can go to 30-years." To say that a certain warranty does not exist is not true, it only means that the mfr. is not willing to except the specified warranty requirements. Another mfr. might to willing to accept the terms but the contractor may not have done their homework to find that mfr.
3. <<It would be better to simply make it known to manufacturers that you will not specify their products until they change the demands of their warranty.>>
As specifiers with a project deadline to meet, we cannot spend time educating mfrs. Maybe CSI or SCIP should develop guidelines for warranties or at least some coordinating suggestions.
"Fast is good, but accurate is better."
.............Wyatt Earp |
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