Terms of Sale
- Terms and Conditions of Sale.
Seller hereby agrees to sell the vehicle(s) (collectively, the “Vehicle”) to the Buyer, upon and subject to, the terms and any conditions hereof (the “Agreement”). The terms and conditions of this Agreement constitute the full and final expression of the contract for the sale of the Vehicle to the Buyer, and supersedes all prior quotations, purchase orders, correspondence or communications whether written or oral between Seller and Buyer. Buyer acknowledges and agrees that any purchase orders or other documents related to the transaction covered by this Agreement and issued by Buyer or its agents, are issued solely for authorization and internal uses of the issuing party and Seller specifically objects to, and shall not be bound by, any such terms and conditions which are not specifically set forth herein or are in conflict with this Agreement, and Buyer further acknowledges and agrees that shipment by Seller to Buyer is not an acceptance of the terms and conditions of any purchase order or other document issued by Buyer or its agents. Buyer shall be bound by the Agreement when it sends a purchase order or otherwise indicates acceptance of this Agreement, or when it accepts delivery from Seller of the Vehicle.
- Price Quotation.
All prices quoted by Seller are based upon the costs and conditions existing on the date of the quotation and are subject to change by Seller, in its sole discretion, before Buyer’s acceptance. Notice of any such change shall be in writing and forwarded to Buyer. Quoted prices do not include sales, use, excise, or similar taxes or assessments, which shall be the sole obligation of Buyer, unless Seller expressly agrees otherwise.
- Terms of Payment.
Payment for the Vehicle by Buyer shall not be subject to any right of set-off and shall be paid in full before Buyer takes possession of vehicle. In the event Seller delivers vehicle to Buyer’s location, payment shall be paid in full before the vehicle is shipped to Buyer. In the event Seller offers Buyer payment terms in writing other than those set forth herein, payment shall be made in accordance with such specific terms. The parties agree that all payments for the Vehicle not received when due from Buyer shall bear interest at 1.5% per month and be subject to a service charge equal to 3% of the overdue amount. Further, Buyer hereby agrees to pay all of Seller’s costs and expenses incurred to collect any overdue amount, including, without limitation, court costs and attorneys’ fees.
Seller shall use all reasonable means to fill orders placed under the Order within the time requested and/or promised. Seller does not assume responsibility for any damages resulting from or attributable to any delays in filling or delivering the Vehicle.
The Vehicle shall be shipped and delivered to Buyer F.O.B. shipping point (i.e., Seller’s place of business at 5434 Navarre Ave, Oregon, Ohio 43616). Seller’s liability for delivery ceases upon making delivery of the Vehicle to Buyer, or the carrier acting as Buyer’s agent, at the shipping point.
- Title and Risk of Loss.
Title to the Vehicle passes to Buyer when the Vehicle is fully paid for. Any risk associated with the sale or transit of the Vehicle rests with Seller up to the time Buyer receives the Vehicle at the place of delivery. After delivery, all risk of loss is with Buyer, including, without limitation, any risk associated with the transportation of the Vehicle.
- Used Vehicles.
Buyer agrees to and shall deliver to Seller satisfactory evidence of title to any used motor vehicle traded in as a part of the consideration for the Vehicle at the time of delivery of such used motor vehicle to Seller. Buyer warrants any such used motor vehicle to be its property free and clear of any and all liens and encumbrances. If a used motor vehicle which has been traded in as part of the consideration for the Vehicle is not to be delivered to Seller until delivery to Buyer of the Vehicle, the used motor vehicle shall be appraised at that time and such reappraised value shall determine the allowance made for such used motor vehicle. If such reappraised value is lower than the original allowance therefore, Buyer may, if dissatisfied therewith, cancel the Order; provided, however, that such right to cancel is exercised prior to the delivery of the Vehicle to Buyer and surrender of the used motor vehicle to Seller. If the Vehicle is used, the Vehicle is sold “as is and not expressly warranted or guaranteed” by Seller and Seller disclaims any and all warranties, either express or implied, including any implied warranty of merchantability or fitness for a particular purpose.
Except for any specific, written warranty made by seller on its own behalf, seller has made no affirmation of fact and has made no promise relating to the vehicle being sold and delivered under this agreement that have become a basis of the bargain made or that have created or amounted to an express warranty that the vehicle would conform to any affirmation or promise. Seller is not liable for normal manufacturing defects or for customary variations from quantities or specifications, unless expressly stated herein. Except for any specific, written warranty made by seller on its own behalf, seller expressly disclaims all representations and warranties of any kind (whether arising by implication or by operation of law) with respect to the vehicle, including, without limitation, any warranties or representations as to merchantability or fitness for any particular purpose.
- Third Party Warranties.
Any warranties for or covering the Vehicle issued by an original, second stage, or other manufacturer, supplier, or alterer, other than Seller, are solely theirs and only such original, second stage, or other manufacturer, supplier, or alterer, as applicable, shall be responsible and liable for performance under such warranties. Buyer understands and agrees that Seller is not an agent or representative of the original or any second stage or other manufacturer, supplier, or alterer of the Vehicle.
- Liability Limitation.
In no event is seller responsible to buyer for any incidental, special, liquidated, exemplary, or consequential damages whatsoever, including, without limitation, any damages or backcharges related to any delay in or non-perforamce of required deadlines or job completion promises, or any direct or indirect lost profits or revenue, regardless of whether those damages were foreseeable. The total cumulative liability of seller arising from or related to the vehicle or this agreement, in tort (including negligence or strict liability) or otherwise, shall not exceed the price of vehicle on which such liability is based.
Buyer may not cancel or defer an order or delivery of the Vehicle hereunder. Buyer will remain liable to Seller for up to the full sale price of the vehicle and immediately make payment to Seller: (a) reasonable and proper cancellation costs incurred by Seller as a result (including, without limitation, labor costs, materials costs, shipping costs, overhead costs and any other cost incurred by Seller to fill the order for the Vehicle); (b) a pro rata share of profit Buyer would have earned for the sale of the Vehicle but for such cancellation, which shall be based on the stage of completion of Seller’s work at the time of such cancellation; and (c) any and all other relief to which Seller is entitled under the applicable laws of the State of Ohio; (d) Buyer to remain liable to Seller for the amount of any deficiency in vehicle final sales price from Agreement sales price. Seller may cancel or defer all or any part of an order or delivery of the Vehicle hereunder or under the Order if Buyer repudiates or breaches the Order or any of the Terms.
- Default and Termination.
The occurrence of any of the following events shall be deemed an “Event of Default” under the Order and the Terms: (a) Buyer fails to pay any amount due and payable to Seller, whether under the Order or otherwise; (b) Buyer breaches any term or provision of the Order or the Terms; (c) Seller reasonably determines, in its sole discretion, that Buyer’s financial responsibility is impaired; (d) Buyer refuses to provide Seller any payment, security, or guarantee when demanded; (c) Buyer becomes insolvent or unable to pay its debts as they become due; (d) Buyer applies for or consents to the appointment of a receiver, trustee, liquidator, or custodian; (e) Buyer makes a general assignment for the benefit of creditors; (f) Buyer is adjudicated bankrupt or insolvent; (g) Buyer commences a voluntary case under any applicable bankruptcy law or files a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief; or (h) Buyer dissolves. In the event of an Event of Default, Seller may immediately terminate the Order and/or refuse to deliver any of the Vehicle then undelivered without liability to Buyer by delivering written notice of termination to Buyer. Further, if this Order is terminated by Seller pursuant to this paragraph, Seller shall be entitled to recover from Buyer: (i) the unpaid price of the Vehicle delivered to Buyer; (ii) reasonable and proper costs incurred by Seller as a result of the termination (including, without limitation, labor costs, materials costs, shipping costs, overhead costs and any other cost incurred by Seller to fill the order for the Vehicle); (iii) a pro rata share of profit Buyer would have earned for the sale of the Vehicle but for such termination, which shall be based on the stage of completion of Seller’s work at the time of such termination; and (iii) any and all other damages and relief to which Seller is entitled under the applicable laws of the State of Ohio.
- Force Majeure.
Seller shall not be liable or responsible in damages to Buyer for any delay or failure to perform any obligation or condition under this Agreement due to any event or occurrence beyond the reasonable control of Seller, including, without limitation, acts of God, fires, explosions or other casualty, lockouts or other industrial disturbances, interruption of business, cessation of production, material shortages, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, arrests and restraints of government and of people, civil disturbances, and the binding order of any court or governmental authority.
To the maximum extent allowed by law, Buyer shall defend, indemnify, and hold Seller, and Seller’s employees and agents harmless from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, back charges, penalties, fines, interest and other expenses (including, without limitation, reasonable attorneys’ fees) that Seller may incur or be obligated to pay as a result of: (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Vehicle; (b) Buyer’s violation or alleged violation of any federal, state, county, or local laws or regulations, including, without limitation, the laws and regulations governing product safety, labeling, packaging, and labor practices; and (c) Buyer’s breach of this Agreement including, but not limited to, Buyer’s non-payment of any amount due hereunder.
- Succession and Assignment.
This Agreement, and the rights, benefits, duties, and obligations of the parties hereunder, shall inure to the benefit of and be binding upon the parties hereto and upon their respective assigns and successors in interest. Buyer may not assign, delegate, or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Seller.
- Governing Law and Venue.
The parties acknowledge that the transaction that is the subject matter of this Agreement bears a reasonable relation to the State of Ohio and agree that this Agreement and their rights and duties hereunder shall be governed, construed, and enforced in accordance with the laws of the State of Ohio. The parties specifically intend that Uniform Commercial Code as enacted in the State of Ohio, as amended (Ohio Revised Code Chapter 13), shall govern and control all aspects of this Agreement and its interpretation and that all the definitions contained in those statutes will be applicable to this Agreement, except when this Agreement specifically provides otherwise (including the parties agreement that the battle of the forms in Section 2-207 of the Uniform Commercial Code shall not apply to this Agreement). The parties irrevocably submit and agree to the exclusive jurisdiction of the state courts located within Lucas County, State of Ohio, with respect to any action, suit, or proceeding arising under or relating to this Agreement and irrevocably agree that all such actions or proceedings shall be litigated in such courts, and waive any objection which they may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.
The parties are independent contracting parties and nothing in this Agreement shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant to either party any authority to assume or to create any obligation on behalf or in the name of the other. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature.