Terms and Conditions
1. Consideration: In consideration of the premises and the mutual representations, covenants and conditions hereinafter set forth and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties, MOTOR SERVICE GROUP, LLC (“Seller”) and the entity to which Seller’s offer is made or the entity purchasing Products from Seller (“Buyer”) hereby agree as follows:
2. Acceptance of Terms and Conditions: Seller’s sale of any Products is expressly conditioned on Buyer’s ascent to these Terms and Conditions. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions. Any terms and conditions (previously, contemporaneously or hereafter) provided by Buyer which add to, vary from or conflict with these Terms and Conditions are hereby expressly objected to.
3. Delivery, Inspection: All goods sold hereunder are F.O.B. Seller’s facility unless otherwise stated herein. Seller retains a security interest in the goods until payment is received. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, the risk of loss or damage shall pass to Buyer and delivery shall be deemed complete upon delivery to a common carrier. All claims for shipping loss or damage are Buyer’s responsibility. Where the scheduled delivery of Products is delayed by Buyer or by a Force Majure event, Seller may store the Products at the expense and risk of Buyer. Delivery dates are not guaranteed, and Seller has no liability for damages that may be incurred due to any delay in shipment of goods hereunder. Buyer shall inspect the Products immediately upon delivery. If Buyer fails to notify Seller in writing within 10 days of receiving the Products of any alleged shortage, damage or other nonconformity with respect to the Products the Product shall conclusively be deemed to have been irrevocably accepted by Buyer.
4. Security Interest: Seller reserves and retains a security interest in the delivered Products and the proceeds thereof until Buyer has paid Seller the full price. Seller shall have the rights and remedies of a secured party under the uniform Commercial Code. Buyer authorizes seller to file a UCC financing-statement (with or without Buyer's signature) and to do any other lawful act necessary in perfecting Seller’s security interest in the Products. Buyer agrees to execute all necessary documents thereto perfect such Seller’s security interest.
5. Taxes: The prices of the Products do not include taxes or any other governmental charges which are excluded unless otherwise stated.
6. Payment: Payment terms are cash on delivery, unless credit terms are established Seller’s sole discretion. If Buyer fails to pay any Invoice when due, Seller may exercise all available remedies to it, including under the Uniform Commercial Code and may withhold delivery until receipt of payment. Buyer agrees to pay Seller cost of collection of overdue invoices, including reasonable attorney’s fees. A service charge of the greater of 1.5% monthly or the highest legal rate allowable by law may be charged on any amounts due and payable. All returned items are subject to a handling charge of 25% of the Invoice amount plus return freight to Seller’s location.
7. Returns/Cancellations: All claims relating to quantity or shipping errors shall be waived by Buyer unless made in writing to Seller within ten (10) days after delivery of goods to the address stated. Buyer shall pre-pay freight charges for any approved returns. Buyer shall be obligated to pay for the portion of the order that has been delivered to Buyer or that is in-process at the time of cancellation.
8. Force Majeure: Seller shall have no liability to Buyer for delay or failure to perform due to any cause beyond the reasonable control of Seller.
9. Indemnification: Buyer will at its own expense defend, indemnify and hold Seller [and its agents, employees, officers, directors and successors and assigns (Indemnified Parties)] harmless from and against any and all claims [demands, lawsuits, damages, liabilities, fines, costs and expenses (including attorney’s fees)], incurred, by or made against the Indemnified Parties that arise out of or result from: a) failure of Buyer to comply with local, state and federal laws, rules and regulations; b) any person’s bodily injury, including illness and or death or any third parties tangible property if such bodily injury or property damage arises out of or occurs in connection with any act, error, omission, negligence, or misconduct by Buyer or any other person (other than the Indemnified Parties) in connection with the Products.
10. LIMITED WARRANTY: SELLER HEREBY, WARRANTS SELLER’S PRODUCTS FOR A LIMITED PERIOD OF 90 CONSECUTIVE CALENDAR DAYS OR 1,000 CONSECUTIVE HOURS OF OPERATION, FOLLOWING DELIVERY OF THE PRODUCTS TO BUYER (“WARRANTY PERIOD”). THE PRODUCTS SHALL CONFORM TO THE DESCRIPTION AND SPECIFICATIONS STATED SUBJECT TO INDUSTRY TOLERANCES AND VARIATIONS.
11. DISCLAIMER OF WARRANTIES: SELLER SPECIFICALLY EXCLUDES AND DISCLAIMS AND BUYER HEREBY WAIVES: ANY AND ALL OTHER ORAL OR WRITTEN WARRANTIES IN RESPECT OF THE PRODUCTS WHETHER STATUTORY, EXPRESS OR IMPLIED, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. THERE ARE NO WARRANTIES WHICH EXTEND BEYOUND THE DESCRIPTION OF THE FACE OF THIS DOCUMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE ABOVE LIMITED WARRANTY IS EXCLUSIVE, CONSTITUTES THE SOLE WARRANTIES PROVIDED IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER REMEDIES.
12. LIMITATION OF LIABILITY; LIMITATION OF REMEDY: SELLER’S LIABILITY SHALL BE LIMITED, AT SELLER’S OPTION, TO REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS OR REFUND OF PRODUCT’S PRICE. THE FOREGOING SETS FORTH SELLER’S ENTIRE OBLIGATION AND LIABILITY TO BUYER IN RESPECT TO THE PRODUCTS. BUYER ACCEPTS THE SAME AS ITS ENTIRE RIGHT AND SOLE REMEDY IN RELATION TO ANY BREACH BY SELLER OF THESE TERMS AND CONDITIONS.
13. NO CONSEQUENTIAL DAMAGES: IN NO EVENT SHALL SELLER, ACTING IN THE CAPACITY OF THE PROVIDER OF THE PRODUCTS, BE LIABLE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE FOR THE PRODUCTS FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS), LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS A RESULT OF ANY BREACH, PERFORMANCE OR NON-PERFORMANCE INCLUDING NEGLIGENCE, GROSS NEGLIGENCE AND STRICT LIABILITY BY SELLER OR ANY SUBCONTRACTOR OF SELLER UNDER THIS ESTIMATE OR INVOICE (WHICHEVER IS APPLICABLE) TO BUYER (OR CLAIMS OF ANY THIRD PARTY AGAINST BUYER). SELLER’S TOTAL LIABILITY, TO THE BUYER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THE PRODUCTS FOR ANY CLAIM SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID TO IT BY THE BUYER FOR SAID PRODUCTS.
14. Miscellaneous: These Terms and Conditions supersedes all prior discussion, negotiations, representations, and agreements, whether written or oral, and constitutes the entire agreement between the Parties relating to the subject matters covered herein, and shall not be varied, amended or modified except by written instrument duly signed by both Parties. The construction, validity and performance of these Terms and Conditions and any controversy, claims or collection actions arising out of or relating thereto, or the breach thereof, and which is not settled between the Parties shall be governed by Florida Law, Venue shall be the County of Miami-Dade, in the State of Florida, Jurisdiction shall be any Court of competent jurisdiction, Service of Process may be effected by Courier, delivering any document or formal Complaint on the other Party, and the prevailing party in any enforcement or collection action of this Invoice shall be entitled to recover all reasonable legal fees and costs and other charges and damages including legal fees and costs of any appeals.