terms and conditions (north america)

THIS SALES AGREEMENT IS EXPRESSLY SUBJECT TO THE

 FOLLOWING ADDITIONAL TERMS AND CONDITIONS OF SALE

1. Terms: Unless otherwise specified on the face of this Sales Agreement, Buyer shall pay Seller the purchase price for the ordered product(s) (each, a “Product” and collectively, the “Products”) within 30 days from date of invoice. Buyer shall pay all wire, electronic transfer, bank service and similar fees and charges. All amounts not paid within 30 days from date of invoice shall accrue interest at the rate of 1.5% per month (18% annual percentage rate) from date of invoice. Buyer agrees to pay all court costs and attorneys’ fees incurred by Seller in collection of any amounts due from Buyer or due to Buyer’s breach of any of the terms or conditions herein.

2. Freight, Taxes: Unless otherwise specified on the face of this Sales Agreement, all shipping is FOB Seller’s warehouse (point of origin). Buyer shall pay all costs of shipping. Title to the Products shall pass to Buyer upon delivery of same at Seller’s warehouse to Buyer’s agent or to a common or contract carrier. Risk of loss shall shift with title to the Products. Buyer shall pay Seller for all local, state and federal sales, excise, privilege, manufacturing and other taxes imposed on the sale or delivery of the Products.

3. Sales Agreements, Acceptance: Delivery of a signed copy of this Sales Agreement by Buyer shall be a binding offer of purchase from Buyer on the terms and conditions herein. This Sales Agreement shall not be considered accepted by Seller until either (a) Seller confirms this Sales Agreement in writing or (b) Seller delivers the Products. Acceptance by Seller of this Sales Agreement or any other sales agreement from Buyer is expressly limited to the terms and conditions herein. Any additional or different terms on any sales agreement or other writing from Buyer are objected to and rejected, shall be deemed a material alteration hereof, and shall not be a part of the agreement between Buyer and Seller. These terms and conditions constitute the entire agreement of Buyer and Seller with respect to the subject matter hereof, supersede any and all prior oral and/or written understandings of Buyer and Seller, and may not be modified or amended (in whole or in part) without Seller’s written consent. No evidence of any prior or contemporaneous course of dealings or course of performance between Seller and Buyer shall be admissible to supplement, explain or contradict any term herein. Copies, facsimiles and electronically scanned copies of signatures shall have the same effect as original signatures.

4. Change Order Process: After this Sales Agreement is confirmed by Seller in writing, it is considered accepted and in process. This Sales Agreement is not subject to cancellation or change without consent in writing by Seller (and, if agreed to by Seller, may be subject to cancellation, re-stock and/or other service charges).

5. Limited Warranty: Seller warrants that the Products will be free from defects in material and workmanship for a period of ________ days from the date of sale (the “Warranty Period”). If a Product does not meet the requirements of this limited warranty, Seller’s sole liability and obligation is limited to the repair or replacement of the Product (or, at Seller’s option, a refund of the purchase price of the Product). Buyer acknowledges and agrees that the foregoing is Buyer’s sole and exclusive remedy for any defective Product, and that Seller shall not be liable for any special, collateral or consequential damages, including, without limitation, damage to person or property, loss of profits or other damages. In order to make a claim under this limited warranty: (a) Buyer must give Seller written notice within thirty (30) days after the occurrence of an event giving rise to a breach of this limited warranty, and such event must have occurred during the Warranty Period; and (b) Seller must be afforded the opportunity to inspect the Product in question prior to any repair, replacement, alteration or disposal thereof. If this notice is not timely given and such inspection not afforded or possible, then Seller shall have no liability for such Product under this limited warranty. Buyer acknowledges that any oral statements made by Seller’s agents do not constitute warranties and are not a part of the agreement between Buyer and Seller for the purchase of the Products. This limited warranty shall be void and of no force or effect, and Seller will have no liability, in the event: (i) the Product is used in a manner contrary to the use for which the Product was intended or contrary to any instructions for or warnings on the Product; or (ii) the Product is altered or modified. Notwithstanding anything herein to the contrary, this limited warranty shall not apply to, and there are no warranties whatsoever on, any Products furnished by Seller to Buyer which are built or acquired, wholly or partially, to Buyer’s designs or specifications. Buyer shall indemnify and hold Seller harmless of and from all loss, cost, liability and expense (including attorneys’ fees) arising out of or relating in any way to the sale or use of any Product which Buyer has altered or commingled with other goods.
   
   
   
   
6.  Product and Shipping Discrepancies: All Products sold by Seller to Buyer shall be subject to Seller’s standard manufacturing variations, tolerances and classifications. If Product specifications are based on truck specifications supplied by Buyer or its customer, Seller will not be responsible for deviations in Product specifications if actual truck specifications vary from the information supplied to Seller. It is Buyer’s responsibility to confirm its order by reviewing the Products promptly upon receipt. When a discrepancy is identified (including any damage to the Products), it is Buyer’s responsibility to contact the Seller immediately. All discrepancies must be reported to Seller in writing within 30 days of receipt by Buyer of shipment. Subject to and consistent with the foregoing, Seller will address all discrepancies in an expedited manner.

7. No Liability: Seller shall have no liability (a) whatsoever for any delay or failure in delivering any Product to be sold to Buyer if such delay or failure is due to any cause beyond Seller’s reasonable control, including, without limitation, if due to act of God, fire, strike, insurrection, riot, war, demand of a government unit, restrictions or controls imposed by legislation or governmental authorities, freight embargo, delay in transportation, power or labor or material shortage, energy or fuel shortage, equipment breakdown, inability to obtain raw materials, delay or default of a supplier, or otherwise, or (b) for any special, collateral or consequential damages, including, without limitation, loss of profits or other damages, due to any delay or failure in delivering any Product to be sold to Buyer for any reason.

8. Security: As security for the payment of the purchase price for the Products (together with any interest, costs of collection and attorneys’ fees owed), Buyer, as debtor, hereby grants to Seller, as secured party, a purchase money security interest in the Products (and in any accessions thereto and in the proceeds and products thereof) and in any and all other equipment, inventory, goods or other property Buyer has heretofore or hereafter acquires from Seller.  Upon receipt of the purchase price in full, Seller shall release its security interest promptly. Buyer authorizes Seller to file all such financing statements and other documents in all such filing and recording offices as Seller deems necessary in order to perfect Seller’s security interest.

9. Representation of Solvency: By execution of this Sales Agreement Buyer hereby certifies to Seller that (a) Buyer is not insolvent (as said term is defined in the North Carolina Uniform Commercial Code and/or in the Federal Bankruptcy Law), (b) Buyer is able to pay its debts (including, without limitation, the purchase price of the Products) as they become due, and (c) Buyer has not ceased to pay its debts in the ordinary course of business.

10. Governing Law: This Sales Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. Buyer specifically consents to the jurisdiction of the state and federal courts within New Hanover County, North Carolina with respect to any dispute arising between Buyer and Seller relating to this Sales Agreement or in connection with any Products purchased by Buyer from Seller. Buyer further waives any objection relating to the basis for personal or in rem jurisdiction or to venue which Buyer may now or hereafter have in any such legal action or proceedings. Time is of the essence with respect to all dates and time periods herein.

11. Miscellaneous. This Sales Agreement and the parties’ rights and obligations with respect hereto shall be binding upon and for the benefit of the parties hereto and their respective heirs, personal and legal representatives, successors, and assigns. Buyer shall not assign any of its rights nor delegate any of its duties herein without Seller’s prior written consent. No failure by Seller on any one or more occasions to exercise any right or remedy provided herein or at law or in equity shall preclude the exercise of such right or remedy on any other occasion. The terms and conditions herein are severable so that the invalidity, unenforceability or waiver of any of them shall not affect the remaining provisions herein. All pronouns and any variations thereof shall be deemed to include the masculine, feminine, neuter, singular, and plural thereof as the context may require.

THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE HEREOF.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER MAKES NO REPRESENTATION, WARRANTY OR INDEMNITY OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO ITS PRODUCTS, EITHER EXPRESS OR IMPLIED AND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH REPRESENTATIONS, WARRANTIES AND INDEMNITIES ARE EXPRESSLY DISCLAIMED.  SELLER EXPRESSLY DISCLAIMS, AND BUYER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY FOR, ANY SPECIAL, COLLATERAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES TO PERSON OR PROPERTY, LOSS OF PROFITS OR OTHER DAMAGES) ARISING OUT OF THE SALE OR USE OF ANY PRODUCT PURCHASED BY BUYER FROM SELLER.