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Osair, Inc v. Avery International

December 24, 2012

OSAIR, INC., PLAINTIFF-APPELLANT,
v.
AVERY INTERNATIONAL CORPORATION, DEFENDANT-APPELLEE.



Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CV002920.

The opinion of the court was delivered by: Timothy P. Cannon, P.J.

Cite as Osair v. Avery Internatl.,

OPINION

Judgment: Affirmed.

{¶1} Appellant, OsAir, Inc., appeals the judgment of the trial court granting appellee, Avery International Corporation's, motion for judgment on the pleadings. For the following reasons, we affirm.

{¶2} Avery and OsAir entered into a Nitrogen (N2) and Pipeline System Service Agreement effective November 1, 2008 ("the Agreement"). The Agreement provided that OsAir "agrees to sell and [Avery] hereby agrees to purchase [Avery's] requirements of gaseous nitrogen ('Product')." The initial term of the Agreement "shall be 5 years from November 1, 2008 through October 31, 2013[.]" With respect to price, the Agreement stated: "[t]he price for Product delivered to [Avery] by [OsAir] shall be determined as set forth in Addendum B of this Agreement." The Agreement further provided that "[n]o modification or waiver of this Agreement shall bind [OsAir] unless in writing and signed and accepted by an executive officer of [OsAir]."

{¶3} On September 1, 2009, the parties entered into a First Amendment to the Agreement ("First Amendment"). The First Amendment was drafted by OsAir and signed by its President. The First Amendment was "intended to amend the previously executed Purchase Agreement." The First Amendment stated:

1. Exhibit B to the Purchase Agreement shall be deleted in its entirety.

2. Commencing as of September 1st, 2009, Buyer shall pay to Seller the agreed price of .29.50, 0 to 2,500,000 /scf, .33.55 over 2,500,000 /scf, per one hundred cubic feet of Nitrogen purchased monthly delivered under this Agreement.

3. The term of this Agreement shall expire on June 30, 2011.

4. Buyer shall have the option to extend the term of the Agreement provided that within 60 days of its expiration, Buyer and Seller have agreed to a new price for the nitrogen to be delivered during the agreed upon extended term.

5. The pipeline fee of $750.00 Mentor, $1300.00 Painesville Ohio, in the Agreement shall continue to remain in effect. Payment Terms are Net 30 days. A special term is allowed to 1/1/2010 net 40 days.

In all other respects the Purchase Agreement shall remain in full force and effect and unmodified.

{ΒΆ4} The dispute in this case arose out of the language in Paragraph 3 of the First Amendment, to wit: "The term of this ...


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