Parts Order and InvoiceTERMS AND CONDITIONS CONSTITUTING A PART OF PARTS ORDER AND INVOICE
The Parts Order and Invoice (“Order”), and these terms and conditions, constitutes a contract for the purchase and sale of the Parts identified on the Order, between dealer identified on the Order (“Dealer”) and the customer identified on the Order (“Customer”). The Order is binding upon Customer’s execution of the Order or the delivery of the Parts or any portion thereof by Dealer to Customer.
1. DISCLAIMER OF WARRANTY. CUSTOMER HEREBY ACKNOWLEDGES THAT DEALER NOR ANYONE ACTING ON ITS BEHALF HAS MADE ANY AFFIRMATION OF FACT, REPRESENTATION OR PROMISE RELATING TO THE PARTS THAT HAVE BECOME A BASIS OF THIS TRANSACTION OR WHICH CREATES AN EXPRESS WARRANTY. TO THE FULLEST EXTENT PERMITTED BY LAW, DEALER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND THOSE ARISING OUT OF PERFORMANCE OR DEALING OR USAGE OF TRADE OR ANY OTHER IMPLIED WARRANTY WITH RESPECT TO THE PARTS. There are NO WARRANTIES, express or implied, made by Dealer or the manufacturer of any Parts, except for the manufacturer’s written warranty applicable to such Parts. Such separate manufacturer’s warranty shall be expressly IN LIEU OF any other express or implied warranty, condition or guarantee on said Parts. Customer hereby acknowledges that Dealer has not in any manner adopted the manufacturer’s warranty as a warranty of Dealer, and Customer acknowledges, represents and warrants that it shall look solely to the manufacturer to perform or satisfy any obligation under the manufacturer’s warranty.
2. LIMITATION OF LIABILITY: DEALER WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST USE, LOST PROFITS, LOST SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE OR FOR CLAIMS MADE BY A THIRD PARTY. IN NO EVENT SHALL DEALER’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY RELATING TO OR RESULTING FROM the Order OR THESE TERMS AND CONDITIONS EXCEED THE PRICE PAID BY CUSTOMER FOR SUCH SERVICE WORK. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY AND WHETHER THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM, OR A FUNDAMENTAL BREACH. THESE LIMITATIONS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
3. PAYMENT: Customer shall pay Dealer the total amount listed on the Order, which shall be due in cash upon the tender by Dealer to Customer of the Parts, unless and until credit terms for Customer are approved in a writing signed by a corporate officer or authorized manager of the Dealer. For Customers whose credit has been duly approved in advance by Dealer in a writing signed by a corporate officer or authorized manager of Dealer, the amounts due to Dealer for the Parts shall be in accordance with the terms of the Credit Agreement executed by Customer in connection with applying for credit with Dealer. The terms and provisions of any such Credit Agreement signed by Customer are incorporated herein. In the event that Customer fails to pay Dealer stated herein, Customer shall pay Dealer interest on the amount due and unpaid at the rate of 1.5% per month which is 18% per year or the highest rate allowed by law, whichever is less.
4. FEES FOR CHECKS RETURNED BY FINANCIAL INSTITUTIONS: If any check or similar instrument provided by Customer to Dealer is refused for any reason, an additional charge equal to the fee charged by the applicable financial institution to the Dealer, plus a handling fee of $20, or the highest fee allowable by law, whichever is less, shall be added to the amount owed by Customer.
5. TAXES: Unless otherwise agreed to in a writing signed by Customer and Dealer, Customer shall be solely responsible for the payment of all sales, use, consumer and other taxes arising out of the Order mandated by any applicable federal, state and local laws, codes, ordinances, rules and regulations, whether currently in effect, scheduled to go in effect, or subsequently enacted, including but not limited to, any increases in such taxes taking effect after the date of the Order.
6. ARBITRATION: Any controversy or claim arising out of or relating to the Order shall be decided by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, subject to the limitations and restrictions set forth in this Paragraph 6. A demand for arbitration shall be made within a reasonable time after a controversy or claim has arisen and in no event shall be made after the date when institution of legal or equitable proceedings based upon such claim or controversy would be barred by the applicable statute of limitations. The arbitrator(s) shall have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. The parties acknowledge and agree that the Order evidences a transaction involving interstate commerce. Accordingly, the United States Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement and proceedings pursuant to the arbitration provisions of the Order. The place of arbitration shall be the American Arbitration Association’s office closest to the location of Dealer designated on the Order. The parties shall be entitled to discover all documents and information reasonably necessary for a full understanding of any relevant issue raised in the arbitration. Regardless of any term or provision herein to the contrary, claims for contribution or indemnity filed by a party in any lawsuit or action filed or asserted by a third party on account of personal injury or death of any person or damage to property shall not be subject to the terms and provisions of this Paragraph 5. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
7. EXPENSES AND COSTS: Should Dealer be required to institute any action, including any arbitration proceeding, to enforce any of its rights set forth in the Order, then Dealer shall be entitled to reimbursement from Customer for all expenses, including but not limited to, reasonable attorneys’ and experts’ fees, and costs incurred by Dealer in connection with such action. In the event Customer institutes any action, including any arbitration proceeding, against Dealer and in the further event Dealer prevails in such action, Customer shall pay Dealer the amount of all expenses, including but not limited to reasonable attorneys’ and experts’ fees, and costs incurred by Dealer in connection with such action.
8. MISCELLANEOUS: This Order may not be changed, altered or amended in any way except in writing signed by a corporate officer or authorized manager of Dealer and an agent of Customer. Customer acknowledges and agrees that Customer has had an adequate opportunity to review and revise the Order and these terms and conditions, and the Order and these terms and conditions shall not be construed against or in favor of Customer or Dealer. No waiver by either party of a breach or default hereunder will be deemed a waiver by such party of a subsequent breach or default of a like or similar nature. No waiver of any of these terms and conditions or any of the terms and conditions will be effective against Dealer unless it is in a writing signed by a corporate officer of Dealer. No course of dealing or performance, usage of trade or failure to enforce any term or condition will be used to modify the Order. If any of these terms or conditions is unenforceable, such term or condition will be limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain in full force and effect. This Order is deemed to have been entered into in the state of the location of Dealer designated on the Order and will governed by the laws of the state of the location of Dealer designated on the Order, without giving effect to the choice of laws provisions thereof. The remedies expressly provided for in these conditions will be in addition to any other remedies that Dealer may have under the Uniform Commercial Code or other applicable law. Customer may not assign the Order without the prior written consent of Dealer.
MHC250T&C (REV 07/07)