Clarke Heavy Duty’s Terms and Conditions for Service of Vehicles
Clarke Heavy Duty (“Clarke”), a division of Clarke, will perform the work described in its service order (the “Services”) and furnish all necessary parts and materials subject to the terms and conditions below. Customer agrees to these terms and conditions by executing the service order.
Clarke warrants that the Services performed will be of good, workmanlike quality for ninety (90) days from the date of Clarke’s invoice to Customer. Clarke makes no warranty as to the parts or components supplied; any such warranty is limited to that made by the manufacturer. Clarke will extend to Customer any warranty Clarke has received from the manufacturer of the parts or components supplied for each vehicle. Clarke, at its sole option, will repair, rebuild or replace any Services performed hereunder that are not of good, workmanlike quality during the warranty period. Customer’s exclusive remedy relating to the Services performed hereunder is limited to the cost of any repairs or costs to correct the Services or rebuild or replace parts or components that were damaged due to Services that did not comply with the warranty. CLARKE MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE SERVICES OR PARTS OR COMPONENTS SUPPLIED. IN NO EVENT SHALL CLARKE BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY.
Customer must notify Clarke of any claim under this warranty within thirty days of discovery of such claim and provide documentation that any defect under the warranty occurred within the warranty period. Clarke shall have a reasonable time after receiving notice to correct the Services that did not comply with this warranty or to make any repairs or to rebuild or replace any parts or components that were damaged because the Services did not comply with the warranty. This warranty does not cover any damages or repairs due to accidents, misuse, storage damage, misapplication, negligence, modification or any other damage caused by any person other than Clarke. This warranty does not cover the costs of shipping to return the vehicle or generator to Clarke for necessary warranty work. Clarke is not responsible for any damages or costs to repair, rebuild or replace any parts or components caused by the failure of Customer to perform required maintenance on the vehicle or to meet Clarke’s recommended specifications. Parts and components manufactured by others, but furnished by Clarke, will be repaired or replaced only to the extent provided in the original manufacturer’s warranty. Customer is not permitted to alter, repair or remove any damaged part or component until authorized by Clarke; otherwise the limited warranty will be void.
Limitation of Liability:
Any action against Clarke must be brought within one year after the cause of action arose. Clarke’s total liability (whether in contract, tort, negligence, strict liability, or otherwise) to Customer for any and all claims for any act or omission by Clarke arising out of or related to the Services will not in the aggregate exceed the price paid by Customer to Clarke under this Agreement for the Services performed on the vehicle. IN NO EVENT WILL CLARKE BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST BUSINESS, OR LOST SAVINGS (WHETHER DIRECT OR INDIRECT), WHETHER OR NOT CLARKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to conflicts of law principles that would require the application of any other law. Any controversy or claim arising out of or related to these Terms and Conditions or any breach thereof shall be settled by final and binding arbitration administered by the American Arbitration Association in Cincinnati, Ohio in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Customer authorizes Clarke and its employees to operate Customer’s vehicle or generator as needed for the purpose of testing and/or inspection. An express mechanic’s lien is acknowledged on each vehicle or generator to secure the amount due for Clarke’s Services for said vehicle or generator. Customer is providing each vehicle or generator to Clarke at its own risk and assumes all responsibility for insuring the property and all articles herein. Customer will not hold Clarke liable for loss or damage to its property while in Clarke’s care, custody or control. Customer waives all rights of subrogation against Clarke for any such loss or damage.
If Customer does not pick up the vehicle or generator within 14 days after the work is completed, a storage fee of $25 per day will be assessed until the vehicle or generator is picked up and the bill has been paid in full. If the vehicle or generator is left with Clarke for more than 30 days after completion of the work, the vehicle or generator will be considered abandoned. Service charges at the highest rate permitted by law will be applied to all past due accounts.
Should it become necessary to collect this account through legal proceedings, Customer promises to pay all of Clarke’s costs of collection, including attorneys’ fees.
IF SERVICE WORK HAS BEEN PERFORMED ON WHEEL NUTS OR AXLE U-BOLTS, CUSTOMER MUST RE-TORQUE THEM TO MANUFACTURER’S SPECIFICATION 25 TO 100 MILES AFTER CLARKE’S SERVICE WORK HAS BEEN COMPLETED.