ABC Companies Invoice Terms and Conditions

1. Definitions.

Where the context permits, the following words shall have the meanings indicated:

(a) "Buyer" means the person, partnership, company or corporation procuring the Products from the Company.

(b) "Company" means ABC Bus, Inc. or its subsidiaries, affiliates or assigns thereof it may designate from time to time.

(c) "Products" means all goods or materials to be provided pursuant to this order invoice.

2. Sales Terms.

(a) Payment Terms. Unless otherwise set forth on the face of this order invoice, the Company's normal payment terms are net 30 days from date of invoice, with approved credit. Any cash discount which may be offered on the face of the order invoice must be paid by the discount date to allow deduction of that discount. Discounts offered will be disallowed if any past due balances are outstanding on any previous invoice. The Company may, in its sole judgment, require such other payment terms as it deems appropriate, including full or partial payment in advance of shipment or by letter of credit.

(b) Past Due Accounts. A finance charge of the lesser of 1.5% per month (18% APR) or the highest rate permitted by law will be assessed on all past due accounts. The parties intend to comply with all relevant usury laws. Should the finance charge paid exceed the legal limit, any excess will be deemed a payment of principal. An invoice is past due if the net amount is not paid within 30 days from date of invoice. Interest charged on a past due invoice will be assessed from the date on which that invoice was written. The above charges will be billed on the date that the invoice becomes past due, and on each monthly period thereafter.

(c) Breach. In the event of failure of Buyer to make any payment to the Company when due or upon any other breach by Buyer, the Company shall be entitled, at its sole option, to: suspend shipment of any or all goods to such defaulting Buyer, whether or not the contract covering said goods has been accepted by the Company; cancel any contracts then outstanding for the sale of goods to such defaulting Buyer; offset any credits owed to customer against past due amounts; and to the extent permitted by law receive all expenses incurred by it in the collection of said payment (including in bankruptcy, insolvency or similar proceedings), including reasonable attorneys' fees.

(d) Prices. Prices quoted by the Company herein are firm for 30 days from the date of quotation and are subject to adjustment by the Company based on current costs in effect at the time of shipment. After 30 days from the date of quotation, all quoted prices are subject to change by the Company without prior notice to Buyer. All prices are F.O.B. Company facility.

3. Sales Conditions.

(a) Offer. This order invoice constitutes an offer by the Company to sell the Products specified upon the terms and conditions and at the price(s) and with the delivery date(s) stated herein and is not an acceptance of an offer by Buyer to buy Products. Buyer shall indicate its acceptance of this offer by verbal acceptance, by written acceptance, confirmation or purchase order, by making full or partial payment for the Products, or by accepting delivery of part or all of the Products. Except where separate written agreement has been reached by the parties, this order invoice, together with the documents attached hereto or incorporated herein by reference, shall constitute the entire agreement of the parties and may not be modified unless specifically agreed to by the Company in writing. No terms stated by Buyer in its proposal, bid, purchase order, acknowledgment or other form shall be binding upon the Company except as expressly incorporated herein by the Company. Buyer is hereby notified of the Company's objection to and rejection of any additional or different terms in Buyer's proposal, bid, purchase order, acknowledgment, or other forms. THIS ORDER INVOICE IS EXPRESSLY LIMITED TO ACCEPTANCE UPON THE TERMS AND CONDITIONS CONTAINED HEREIN.



(b) Cancellation and Modification of Orders. Orders may be cancelled by Buyer only upon (1) written notice to the Company subsequently accepted in writing by the Company and (2) payment to the Company of reasonable cancellation charges to be solely determined by the Company.

(c) Credit Approval. All orders by Buyer are subject to credit investigation and approval prior to acceptance by the Company.

(d) Taxes and Charges. Any tax or other governmental charge now or hereafter levied upon production, severance, manufacture, delivery, storage, consumption, sale, use or shipment of Products ordered or sold will be charged to and paid by Buyer. Such taxes are not covered in the Company's price unless expressly stated therein on the quotation form. In the event Seller is required to pay any such charges or taxes, Buyer shall reimburse Seller therefor.

(e) Delivery. Delivery is F.O.B. Company facility. Deliver to the carrier at the Company facility shall constitute delivery to the Buyer. Shipping dates are approximate and based upon prompt receipt of all necessary information from Buyer. Buyer assumes all risks of loss or damage upon the Company's delivery of the Products to the initial carrier. All Products are shipped at Buyer's risk of subsequent loss or damage. The Company shall not be liable to Buyer for loss or damages to Products while in transit or after acceptance of delivery by Buyer. Shortages or damage of Products must be brought to the attention of the carrier at the time of delivery and stated in writing on the delivery papers in order to initiate a claim.

(f) Delays in Delivery. The Company shall not be liable for any delay or failure in the delivery or shipment of Products for any reason. The Company shall have no liability whatsoever for any direct, indirect, special, consequential, incidental or liquidated damages or penalties.

(g) Storage. If shipment is delayed due to any cause within Buyer's control, the Products may be placed in storage by the Company for Buyer's account and risk, and regular charges therefore and expenses in connection therewith shall be paid by Buyer. If, in the sole opinion of the Company, it is unable to obtain or continue such storage, Buyer will, on request, provide or arrange for suitable storage facilities and assume all cost and risk in connection therewith.

(h) Acceptance of the Products. Unless otherwise rejected in writing by Buyer, Buyer shall be deemed to have accepted Products within 5 working days after delivery to Buyer. After acceptance, the Buyer shall not be entitled to reject Products.

(i)      Limited Warranty and Limitation of Liability. Subject to the provisions set forth herein, Seller warrants and represents that for a period of up to six (6) months from the date of purchase, any new Products provided pursuant to this order invoice found to be defective in material and workmanship, under normal use and service, Buyer's exclusive remedy under this warranty is limited to repair or replacement by the Company, as the Company may in its sole discretion elect, F.O.B. the Company facility of such Products (or parts thereof) as (i) are covered by said warranty, (ii) are returned to the Company's principal place of business within the warranty period set forth in this warranty, and (iii) upon examination thereof disclose to the exclusive satisfaction of the Company to have been defective in material or workmanship. All transportation charges relative to corrective work, defective parts or replacement parts shall be borne by Buyer.

 

THE COMPANY'S LIABILITY TO BUYER, IF ANY WITH RESPECT TO THE PRODUCTS, SHALL BE LIMITED AS PROVIDED HEREIN. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY OBLIGATION OR LIABILITY FOR THE LOSS OF USE OF THE PRODUCTS WARRANTED, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS OR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES. THE COMPANY MAKES NO WARRANTIES OF ANY KIND EXPRESS OR IMPLIED OTHER THAN AS HEREIN EXPRESSLY PROVIDED, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.

 

The provisions of this warranty shall not apply and no warranty of whatever kind shall exist to any Product or part thereof which has been used for a purpose for which it was not designed or which have been subject to misuse, negligence or accident or which has been repaired, replaced or altered by anyone other than the Company nor to normal deterioration of any Product or part thereof due to wear, usage or exposure. The Company does not assume or authorize other persons to assume on its behalf any other obligation or liability beyond this warranty.

 

To the extent assignable, the Company shall reassign all manufacturers' warranties provided for Products provided pursuant to this order invoice. Reassigned manufacturer warranties providing a longer warranty period shall supersede this warranty, as determined by Company, with respect to time period only.

(j) Security Interest. The Buyer hereby grants to the Company and the Company hereby retains a security interest in all Products furnished by the Company and the proceeds thereof, until the purchase price therefor is fully paid.

(k) Returns. Products may not be returned by Buyer for credit unless and until the Company has agreed in writing to accept them. No returns can be made after thirty days from invoice date, unless approved in writing by Company and such returns shall be subject to the handling, restocking and/or reconditioning fees referred to herein. There are no returns on non-stocked or special order Products. All claims and returned Products must be accompanied by the invoice and Products returned must be new, unopened, and in original packaging. At the option of the Company, a minimum charge of fifty percent (50%) of the price of the returned Products shall be made upon Buyer for handling, restocking and/or reconditioning. All transportation costs for the returned Products must be paid by Buyer.

(l) Proprietary Information. Company retains all rights and title in and to Company's proprietary information embodied in its Products, related documentation and other technical data, delivered or disclosed to Buyer verbally or in drawings, written or printed matter, electronic storage media, or other form whatsoever. Buyer shall not disclose, reproduce, excerpt or distribute any portion thereof.

(m) Assignment. Any assignment of the rights accruing hereunder shall be void without the prior written consent of the Company.

(n) Waiver. The Company's waiver of any breach by Buyer of any of the provisions of this order invoice shall not constitute a waiver of any other breach of the same or any other provision. The Company's rights and remedies under any provision of this order invoice shall be in addition to and not in substitution of any other rights and remedies available to the Company under applicable law.

(o) Governing Law; Dispute Resolution. This order invoice and the entire relationship between Buyer, Seller and their affiliates will be governed by and construed according to the laws of the State of Minnesota, without regard to principles of conflicts of law. The parties hereby agree to attempt to resolve all disputes arising out of or in connection with this order invoice (including any question regarding its existence, validity or termination) promptly, equitably and in a good faith manner, through discussions and negotiations between their respective representatives and a mediator. If mediation does not resolve the dispute, then either party shall have the right to refer any such dispute to and have such dispute finally resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). In each case, the neutral must be a former judge with experience in commercial disputes. The arbitration shall be heard by a single arbitrator appointed by mutual agreement of all parties or, if the parties are unable to agree, the arbitrator shall be appointed by the AAA. Each arbitration shall be conducted in Minneapolis, Minnesota, unless the parties agree otherwise. The award rendered in any arbitration commenced hereunder shall be final and binding upon the parties and judgment thereon may be entered in any court having jurisdiction for its enforcement. The parties further agree that neither party shall have any right to commence or maintain any suit or legal proceeding concerning a dispute hereunder until the dispute has been determined in accordance with the arbitration procedure provided herein and then only to enforce or facilitate the execution of the award rendered in such arbitration or court enforcement of this provision. The award rendered shall apportion the costs of the arbitration. The parties shall continue to perform their respective obligations under this order invoice in good faith during the pendency of any dispute or any consultation or arbitration proceeding in connection with such dispute. The arbitrator is not empowered to award damages in excess of direct compensatory damages and each party hereby irrevocably waives any damages in excess of such damages.

(p) Severability. If any term of this order invoice is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term will be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this order invoice will remain in full force and effect.

(q) Entire Agreement; Amendment. Except where separate written agreement has been reached by the parties, this order invoice, together with the attachments, exhibits, releases or supplements specifically referenced in this order invoice, constitutes the entire and only agreement between Seller and Buyer with respect to the subject matter of those documents and supersedes all prior oral or written representations and agreements. The terms stated on the face of this order invoice will supersede any contradictory provision in these Terms. This order invoice may be amended only by written instrument executed by all of the parties hereto.

(r) Confidentiality. In no event may copies of this order invoice or of any plans, specifications or other similar documents relating to work under this order invoice be furnished to any person or entity not entitled to receive such documents, without the prior written consent of the Company. All drawings, data, designs, engineering instructions, models, specifications or other technical information, written, oral or otherwise, supplied by or on behalf of the Company or prepared by the Buyer specifically in connection with performance of this order invoice (hereinafter "Information") shall be and remain the property of the Company. Buyer shall not use or disclose such Information except in the performance of this order invoice for the Company and upon the Company's request such Information and all copies thereof shall immediately be returned to the Company.