Page 458 - Construction Waterproofing Handbook

11.14 CHAPTER ELEVEN
UNACCEPTABLE WARRANTY CONDITIONS

Many manufacturers’ standard warranties contain clauses or requirements that do not
afford the proper protection for the purchaser. Any warranty should be reviewed before the
project is awarded to a particular contractor or manufacturer, as this is the most appropri-
ate time to make the necessary changes and corrections that will ensure the proper protec-
tion for the building owner.
Everything is negotiable, including warranties, particularly during the sales process. A
warranty itself can say much about a company and their product. Warranties that are full
of escape clauses can be directly related to how difficult a product is to install and to
expectations of performance problems by the manufacturer. The following are standard
warranty conditions, requirements, or exclusions that should be avoided under most situa-
tions. The statements following come from actual manufacturers’ warranties, and are typ-
ical of what an owner might discover when the coverage is needed.

Maximum obligation limit

“XYZ’s obligation for materials and labor combined shall not exceed $ 1.00 per founda-
tion, accumulative for the life of the warranty.”

“In no event will XYZ be obligated to pay damages in any amount exceeding the original
price of the materials shown to be defective.”

Each of these clauses, and similar types, place an upper limit on the damages and or
repairs for which a manufacturer can be held liable. Obviously, the costs of repairs will
usually exceed the cost of the original application, particularly in situations where the
installation is inaccessible (e.g., below-grade, positive-side waterproofing).
These clauses can prevent a building owner from recovering reasonable expenses asso-
ciated with repairing below-grade waterproofing membranes, when obtaining access to the
product far exceeds the cost of actually repairing the membrane. If the warranty is limited
to the cost of materials only, there is virtually no protection for the building owner.
Maximum monetary clauses should be completely avoided; they offer no realistic pro-
tection if a claim or repair is ever necessitated involving waterproofing systems. The mon-
etary limitations also directly relate to Limits of Liability clauses that further limit a
contractor’s or manufacturer’s liability.

Limitation of liability

“In no event shall will XYZ be liable for special, indirect, incidental or consequential dam-
ages (including loss of profits) arising out of or connected to the materials or the system . . .
regardless of any strict liability or active or passive negligence of XYZ and regardless of the
legal theory (contract, tort, or other) used to make a claim.”

This clause attempts to completely disavow any liability, even if required by law. In
most states such exclusions are not permitted even if signed by the parties, for no company