(Please Read Carefully)
BRITE METAL, INC., STATEMENT OF LIMITED LIABILITY
ALL WORK IS ACCEPTED SUBJECT TO BRITE METAL, INC., TERMS AND CONDITIONS:
The customer, by contracting for metal treatment, agrees to accept the limits of liability as expressed in this Statement to the exclusion of any and all provisions as to liability on the customer’s own invoices, purchase orders or other documents. If the customer desires his own provisions as to liability to remain in force and effect, this must be agreed in writing, signed by an officer of the treater. In such event, a higher charge will be made for our services.
Except as otherwise contained in this order, Brite Metal, Inc., hereafter stated as B.M.I., makes no express warranty whatsoever relating to the services, goods and/or parts (hereinafter collectively referred to as the “goods” inclusive of the services). B.M.I makes no implied warranty of merchantability or implied warranty of fitness for any particular purpose as to any of the goods. B.M.I. is selling, providing and/or delivering the goods to customer “as is” and not subject to any implied warranty.
Despite Brite Metal, Inc.’s utilization of and expertise with applicable scientific methods for metal treating/processing, imperfections do or may exist. Accordingly, the Services shall substantially conform, (“Conformance”), to the Print, industry standards and/or the Specifications (if applicable).
Before Customer accepts Delivery of the Part(s), customer will have the full and reasonable opportunity to inspect/test the Part(s), (“Inspection”) to reasonably determine the condition thereof, Conformance and any other issues material thereto (i.e. shrinkage, excessive weight shortage (being more than two percent(2%)), defective treatment/processing, physical defects, expansion, deformity, ruptures in treating, straightening or subsequent grinding, etc…) After Customer’s Inspection (or Customer’s failure or waiver of Inspection) and/or if Customer takes Delivery of the Part(s), B.M.I. shall not thereafter have any duty, liability and/or obligation whatsoever to Customer and/or Customer’s successor(s)/assign(s), (“Liability”), as to the Service(s) and Part(s) and Customer will have conclusively waived the same. Time is of the essence. There will be no liability to Brite Metal, Inc. for any special, indirect or consequential damages arising from any reason whatsoever, including but not limited to loss of profits, loss of production, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed on the part of Brite Metal, Inc.
Any Liability of B.M.I. shall in any event cease after Customer has further processed, assembled and/or undertaken any other work/manufacturing or processing utilizing any Part(s) and/or substantially/materially changed or altered the condition thereof.
Customer is solely responsible for furnishing to B.M.I. complete and accurate Print(s) and/or Specifications, if applicable, (collectively the “Plans”), as to the Service(s)/Part(s) and warrants/represents to B.M.I. that the Plans will not violate, (“Violation”), any intellectual property rights of any person(s)/entity thereto (i.e. patents, copyrights or the like). Customer will hold B.M.I. harmless from any such Violation and indemnify B.M.I. as to/upon any damages that B.M.I. incurs or may incur resulting from or relating to any Violation; including, without limitation, reasonable attorney’s and/or expert’s fees and court costs.
Customer shall indemnify B.M.I. and hold B.M.I. harmless from and against any and all claims, causes of action liabilities and/or expenses; including, without limitation, reasonable attorney’s fees and expert’s fees, which B.M.I. incurs or may incur relating in any manner whatsoever to Customer’s: (a) Default(s); (b) use, distribution and/or possession of the Part(s); and/or, (c) intentional reckless and/or negligent acts and/or omissions (including and whether those of Customer and/or those of Customer’s successor(s)/ assign(s), employee(s), agent(s) and/or end-user(s)).
Brite Metal, Inc’s default/breach upon this Order and/or Brite Metal, Inc’s defective Service(s)/Part(s), being collectively the “Goods” as hereinbefore provided, and notwithstanding any Terms to the contrary, Customer’s sole and exclusive remedy against B.M.I. is and shall be limited to and shall not exceed two (2) times the Price as and for liquidated damages. B.M.I. will not otherwise be liable/responsible to Customer for any other costs, expenses and/or damages; including, without limitation, any legal/expert’s fees, court costs, lost business and/or profits and/or any other incidental or consequential damages.
This Order shall be governed by and construed in accordance with Ohio law in all respects. B.M.I. and/or Customer shall bring and/or initiate any claims, disputes, causes of action and/or other legal proceedings respecting this Order, the Services and/or Part(s), (“Claim(s)”) in the Stark County, Ohio Common Pleas Court, which Court will have the sole and exclusive jurisdiction and venue as to any/all Claim(s).
Limitation: In accordance with Ohio Revised Code Section 1302.98(A), any Claim(s) must be commenced within one (1) year from the date upon which any such Claim(s) has/have accrued. No agent or representative is authorized to alter the above conditions, except by writing duly signed by Brite Metal, Inc.