TruckCorp LLC Terms and Conditions of Sale

  1. Acceptance of Sales Order. This Sales Order, including the specific order terms which are incorporated herein by reference(collectively, the “Order”), constitutes the terms and conditions by which TruckCorp LLC, entity designated as the seller on the Order (“Seller”) is to provide to the party designated as the Buyer in the Order (“Customer”) the products described on the Order ( “Products”). Customer shall promptly acknowledge receipt of this Sales Order. Customer shall be deemed to have accepted this Sales Order by any reasonable indication of acceptance, including without limitation (i) if it fails to object to Seller, in writing, within five (5) days of receipt of this Sales Order, or (ii) if it accepts the Products shipped by seller. Customers’ acceptance, however made, is expressly limited to the terms of this Order, and Seller objects to all additions, exceptions, or changes to these terms whether contained in any printed form of Customer or elsewhere unless expressly approved by Seller in writing. Any terms and conditions set forth on the front side of the Order shall control over any inconsistent terms or conditions below hereof.
  2. Delivery. No tender of delivery of Products shall be deemed made to Customer, and no liability or obligation to inspect the Products shall be imposed on Customer, unless and until the Products are tendered in precise conformity to the specifications and instructions of the Order (including, but not limited to, specifications and instructions relating to kind, quantity, quality, assortment, labeling and packaging, delivery, shipping, routing, and conformity to specifications, designs, and samples). Delivery of Products shall be in accordance with the delivery schedule set forth on the Order accepted by Customer and agreed to by Seller. Partial shipments are not allowed unless specifically noted by Seller. Complete and detailed packing slips must accompany all shipments.
  3. Labeling, Packaging. All Products shall be labeled and packaged in accordance with industry standards for container shipment, and any instructions provided by Customer, including Customers’ part number on all packing slips and Purchase Order on all shipping labels.
  4. Non-Conforming Products; Over-Shipments; Substitutions. All Products rejected by Customer may, at Seller’s discretion, be (i) returned to Seller at Seller’s expense, (ii) held by Customer at Seller’s risk and expense, or (iii) accepted by Customer pending warranty claims.
  5. Price. The price for the Products supplied shall be the amount designated on the Order. Unless otherwise specified, such price includes all charges for packing, boxing, labeling, hauling, storage, transportation to point of delivery, freight insurance, taxes, and installation.
  6. Payment. Unless otherwise set forth on the Order, Seller shall invoice Customer upon acceptance of the Products by Customer. Customer shall pay Seller the price for Products set forth in Section 5 within the agreed terms between the buyer and seller, after receipt of Seller’s invoice. All payments shall be made in U.S. dollars to Seller.
  7. Cancellation; Changes. Customer may not cancel all or any part of this Order after acceptance of the order, for any reason without liability to Seller, for all expenses incurred by Seller as a result of said cancellation, including incidental and consequential damages and attorney fees Seller may reschedule delivery of the Products under this Order in whole or in part provided notice is given prior to the shipment date. Customer may also at any time make changes in the scope or quantity of the Products, in which event Seller must, within 10 days of Seller’s receipt of notice of such changes, notify Customer of any price and timing changes.
  8. Warranties. The TruckCorp LLC warranty is the only applicable and valid warranty. No other representations either written or oral will be honored.
  9. Disclaimer and Release of Additional Warranties and other Claims. Seller hereby specifically disclaims and Customer unconditionally releases Seller from any claims, suits, actions, liabilities, damages, losses, penalties, costs and expenses (including, without limitation, incidental, consequential and punitive damages and reasonable attorney fees) arising out of or related to any (i) actual or alleged breach of any express or implied warranty, covenant and obligation of Seller; (ii) failure of Seller to deliver the Products on a timely basis in precise conformity with the terms and conditions of this Order; (iii) negligence or any act or omission of Seller in connection with this Order; (iv) claims regarding warnings or failure to warn of Product dangers; (v) claims that the Products are a substantial product hazard and should be repaired or replaced; (vi) injury to person or damage to property occurring as a result in any defect in the Products; and (vii) Product recalls (including direct and indirect costs associated therewith).
  10. Indemnification. Customer shall indemnify and hold Seller, its affiliates, partners, directors, officers, employees and agents, harmless from any and all claims, suits, actions, liabilities, damages, losses, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to any personal injury, property damage or any other claim, suit, action, demand, damage, loss, penalty or additional expense, relating to the Products, which occurs after the date of sale and which is not caused solely by the negligence or conduct of the Seller.
  11. Confidentiality. Customer shall not disclose, communicate or otherwise divulge, directly or indirectly, any information (including, without limitation, any of Sellers specifications, drawings, financial data, engineering plans, customer-related information, designs, trade secrets, know-how, the terms of this Order, or the fact that customer is buying the Products from Seller) relating to Seller or Seller’s products which is acquired by Buyer as a result of its provision of Products pursuant to this Order. Such information shall be used solely for the purpose of providing the Products to Buyer and for no other purposes whatsoever, and shall remain solely Sellers property. Buyer shall return such information to Seller upon request, or upon termination or completion of this Order.
  12. Developments. In the event Customer develops any designs, improvements, inventions, works of authorship, or other concepts or items (“Developments”) in connection with this Order, Customer agrees to assign to Seller all right, title and interest in and to such Developments (including any associated copyright, patent and other intellectual property rights). Buyer agrees to execute and deliver to Seller any and all documents requested by Seller to confirm Seller’s complete ownership of such Developments.
  13. Customer Tooling and Materials. In the event Customer provides Seller with any raw materials, tooling, equipment, drawings, schematics, dies, patterns, truck chassis or other items (“Customer Items”) in connection with this Order, Seller acknowledges that all such Customer Items shall remain the sole and exclusive property of Customer and are provided to Seller on a commercial bailment basis. Seller agrees that it shall use such Customer Items solely for the purpose of manufacturing the Products covered by this Order for the benefit of Customer. Seller shall keep such Customer Items in a safe, secure and appropriate location, segregated and separate from all other property, goods, or materials owned by Seller or any third parties. Seller shall clearly identify all such Customer Items as the property of Seller. Seller shall keep all such Customer Items free and clear from any and all voluntary and involuntary liens, security interests, and encumbrances. Seller hereby waives any rights it may have now or in the future to claim a lien, security interest, or other encumbrance on such Customer Items. Seller shall be responsible for exercising due care with respect to all such Customer Items provided to Seller. Seller shall be liable for any loss or damage to such Customer Items. Customer shall have the right, at any time and for any reason, to require Seller to return all or any portion of such Customer Items.
  14. Dispute Resolution. Except for disputes relating any breach of confidentiality hereunder or for the misuse or infringement of Seller’s intellectual property rights, in the event of a dispute or disagreement between Seller and Customer arising out of or relating to this Purchase Order (a “Dispute”), such Dispute, upon the written request of either party, shall be referred to the chief financial officers of each party or their respective designees. The chief financial officers or their respective designees shall promptly meet in good faith to resolve the Dispute and if they do not agree upon a resolution within thirty (30) calendar days after the reference of the Dispute to them, then such Dispute, upon written notice from one party to the other of its intent to arbitrate, shall be submitted to and settled exclusively by final and binding arbitration in lieu of any judicial proceeding; provided, however, that nothing contained in this Section shall preclude any party from seeking or obtaining from a court of competent jurisdiction (a) injunctive relief, or (b) equitable or other judicial relief to specifically enforce the provisions of the Contract or to preserve the status quo prior to the event(s) leading to the Dispute. Arbitration shall be conducted in Canton, Ohio USA by a single arbitrator chosen by the parties under the rules of the American Arbitration Association existing at the date of submission of the Dispute to arbitration. The arbitration award shall be binding and enforceable against Seller and Customer and judgment may be entered thereon in any court of competent jurisdiction.
  15. Records; Audits. Seller shall, at all times, keep accurate records of all Products manufactured and sold under this Order for a period of five (5) years. Customer and its customers shall have the right, at all times, during Seller’s normal business hours, in a manner that does not unduly interfere with normal operations and that is respectful of/consistent with Seller’s security policies/procedures, to observe, inspect, and/or audit Seller’s premises, manufacturing and quality control processes, and records, relative to Products supplied pursuant to this Order.18.
  16. Waiver; Amendment. Sellers failure to enforce its rights as to any violation of any provision (or part thereof) of this Order shall not be deemed a waiver or abandonment of its right to enforce its rights as to any other violation of the same or any other provision. This Order may be amended only by a written instrument signed by an authorized representative of Seller. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.