Page 459 - Construction Waterproofing Handbook

LIFE CYCLES: QUALITY, MAINTENANCE, AND WARRANTIES 11.15
has the right to change or negate governing laws. However, the manufacturer is attempt-
ing to ensure that their liability will be completely limited, in itself not speaking highly
of any company.
Obviously such requirements should be avoided, and the manufacturer required to
assume the liability they might incur if their product or application fails. There are reasons
for limiting the consequential damages, since the manufacturer has no idea what they
might be at time of contracting.
For example, consider a hospital, where leakage has caused the failure of a piece of
operating equipment that in turn passively causes the death of a patient. The waterproof-
ing manufacturer might possibly be sued for contributory negligence, for which no war-
ranty can negate liability. However, the damages related to the loss profits while the
equipment is not functioning are considered consequential damages and often made
exempt by the warranty as in the clause quoted above. Such exclusions generally are
acceptable, since the manufacturer would not be able to determine the cost of doing busi-
ness without knowing the exact circumstances of the building uses and potential liability.
These warranty conditions should be carefully reviewed with legal council when
appropriate, and changes made or negotiated before the contract is executed. The manu-
facturer should not be expected to provide coverage for unreasonable situations, but be
made to accept liability for damages caused directly by the leaks, such as interior drywall
repairs necessitated by leaks. If these incidental damages are excluded, often because the
owner maintains building insurance for such events, at minimum the manufacturer should
be made to reimburse the insurance deductible amount. In addition to outright limitation
of liability, some manufacturers attempt to reduce their remaining liability on a deprecia-
ble value.

Prorated or depreciable value

“Maximum value of warranty is reduced 10 percent each calendar year from the date of
this warranty.” This clause is used in conjunction with an actual stated maximum value of the
warranty or limiting the value to the original purchase price of the materials or product.

By limiting liability in this way, it is implied that the manufacturer expects their prod-
uct’s capability to become increasingly ineffective. The obvious risks the owner assumes
in losing practically all the coverage in the out-years of a warranty make such warranties
unacceptable.

Access provisions

“It is the owner’s responsibility for all costs associated with moving, removing, restoring,
repairing or replacing any of the following, but not limited to, grass, trees, shrubs, landscap-
ing, fences, patios, decks, sidewalks, utility service lines, and structures in order to reach the
affected area. In addition, it is the owner’s responsibility to remove exterior soils to reach the
affected area, backfill, and recompact if necessary.”

“Is it the owner’s responsibility to pay the cost to remove interior finishes to reach the
affected area and replace with the same or similar materials.”