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.
(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.
(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.