Zentech Statement of Limited Liability
(Please Read Carefully)
ALL WORK IS PERFORMED SUBJECT TO THE FOLLOWING TERMS:
THE CUSTOMER PURCHASING THERMAL PROCESSING SERVICES FROM ZENTECH UNDERSTANDS THAT EVEN AFTER EMPLOYING ALL SCIENTIFIC METHODS KNOWN TO ZENTECH, HAZARDS STILL REMAIN IN THERMAL PROCESSING. THE CUSTOMER THEREFORE AGREES THAT ZENTECH’S LIABILITY SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE ON ANY MATERIAL. THE CUSTOMER AGREES AND UNDERSTANDS THAT THIS LIMITATION OF LIABILITY IS NOT AN EXCULPATORY CLAUSE. THE REIMBURSEMENT AND FULL LIABILITY OF ZENTECH SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE BY ZENTECH ON ANY MATERIAL. THIS IS INTENDED TO REIMBURSE THE CUSTOMER FOR THE CHARGES AND TO FULLY COMPENSATE THE CUSTOMER IN THE AMOUNT OF THE CHARGES. THIS TERM APPLIES TO ALL WORK DONE BY ZENTECH EXCEPT WHERE OTHERWISE AGREED TO IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF ZENTECH.
THE CUSTOMER, BY CONTRACTING FOR THERMAL PROCESSING, AGREES TO ACCEPT THE LIMITS OF LIABILITY AS EXPRESSED IN THIS STATEMENT TO THE EXCLUSION OF ANY AND ALL OTHER PROVISIONS AS TO LIABILITY THAT MAY BE SET FORTH IN THE CUSTOMER’S OWN INVOICES, PURCHASE ORDERS OR OTHER DOCUMENTS. IF THE CUSTOMER PROPOSES A DIFFERENT OR ADDITIONAL LIABILITY PROVISION, THE SAME MUST BE AGREED TO IN WRITING AND SIGNED BY AN OFFICER OF ZENTECH BEFORE WORK IS STARTED OR SERVICES ARE PROVIDED. IN SUCH EVENT, THE CUSTOMER UNDERSTANDS THAT A DIFFERENT CHARGE FOR SERVICES MUST BE AGREED ON, REFLECTING THE HIGHER RISK TO ZENTECH AND THAT NO WORK WILL BE STARTED UNTIL BOTH ZENTECH AND THE CUSTOMER HAVE SIGNED AN AGREEMENT SETTING FORTH THE NEW CHARGES AND TERMS OF LIABILITY. OTHERWISE, THE TERMS SET FORTH HEREIN ARE BINDING ON THE CUSTOMER.
IT IS AGREED BY THE CUSTOMER AND ZENTECH THAT THE INABILITY TO DISCOVER A DEFECT WITHIN A REASONABLE PERIOD OF TIME AFTER THE RECEIPT OF A SHIPMENT OF HEAT TREATED MATERIAL, NOT TO EXCEED FIVE (5) BUSINESS DAYS, WILL NOT VOID THE LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT. IT IS THE CUSTOMER’S OBLIGATION TO NOTIFY ZENTECH IF IT DOES NOT AGREE TO THE LIMITATION OF LIABILITY CONTAINED HEREIN AND A FAILURE ON THE PART OF THE CUSTOMER TO DO SO IN WRITING BEFORE WORK STARTS WILL BE DEEMED ACCEPTANCE OF THIS LIMITATION OF LIABILITY.
ZENTECH MAKES NO EXPRESS OR IMPLIED WARRANTIES AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AS TO THE PERFORMANCE OR CAPABILITIES OF THE MATERIAL AS HEAT TREATED, OR THE HEAT TREATMENT. THE AFOREMENTIONED LIMITATION OF LIABILITY STATED ABOVE IS SPECIFICALLY IN LIEU OF ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND ANY OTHER SUCH OBLIGATION ON THE PART OF ZENTECH. ZENTECH’S LIABILITY TO THE CUSTOMER SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN BY THE CUSTOMER OR ANY THIRD PARTY.
No claims for shortage in weight or count will be entertained unless presented in writing within five (5) business days after receipt of materials by the CUSTOMER. No claims will be allowed for shrinkage, expansion, deformity, or rupture of material in treating or straightening, except by prior written agreement, as above, nor in any case for rupture caused by or occurring during subsequent grinding. Whenever ZENTECH is given material with detailed instructions as to treatment, ZENTECH’s responsibility shall end with the execution and completion of those instructions. Failure by the CUSTOMER to indicate plainly and correctly the kind of material (i.e., proper alloy designation) to be treated, shall cause an extra charge to be made to cover any additional expense incurred as a result thereof, but shall not change the LIMITATION OF LIABILITY stated above. When the CUSTOMER provides specifications for the heat treating service to be provided, makes changes in the kind of materials (i.e. proper alloy designation) to be treated, or changes the process to be used, the CUSTOMER specifically understands and agrees that this LIMITATION OF LIABILITY shall remain in effect, but that additional charges for services will be due and owing to cover the additional expense incurred as a result of changes made by the CUSTOMER. The CUSTOMER agrees there will be no liability on ZENTECH in contract or tort (including negligence and strict liability) for any special, indirect or consequential damages arising from any reason whatsoever, including but not limited to personal injury, property damages, loss of profits, loss of production, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed on the part of ZENTECH. No agent or representative is authorized to alter the conditions, except in writing duly signed by an officer of ZENTECH. ZENTECH’s services and work are expressly limited to the terms and conditions contained on the face and back of ZENTECH’s quotation, purchase order, sale acknowledgement or other forms. Any different or additional terms contained in any of the CUSTOMER’s forms are hereby deemed to be a material alteration and notice of objection to them is hereby given.