Model 1 Commercial Vehicles Sales Terms and Conditions
General Sales Terms & Condition:
1. Applicability. These General Terms and Conditions of Dealer Vehicle Sale (these “Terms”) are the only terms that govern the sale of all vehicles and any services thereto (“Vehicle”) by Model 1 Commercial Vehicles, Inc. (“Dealer”) to the buyer named on the Buyer’s Order Contract (as defined below) to which these Terms are attached (“Buyer” or “You”). Collectively Buyer and Dealer are referred to as the “Parties” and individually as “Party.” The accompanying Buyer’s Order Contract setting forth the Vehicle to be purchased (the “BOC”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted a purchase order or such terms. Dealer expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of this Agreement by Buyer shall be deemed as the earlier of (i) Buyer’s signature to the BOC and (ii) Buyer’s acceptance of the Vehicle. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Vehicle (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
2. DEALER MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED. This Vehicle is sold by Dealer “AS-IS” with no Dealer guarantee or warranty, implied or express, except as noted in Section 3. All warranties on this Vehicle are made by the manufacturer, and not the Dealer. DEALER HEREBY DISCLAIMS AND EXCLUDES FROM THIS SALE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PURPOSE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Buyer understands Dealer does not warrant the year of this Vehicle, the year of the chassis, or the year of any of its component parts, and that the manufacturer(s) of the Vehicle chassis or component is solely responsible for the year assigned to this Vehicle to the extent its year is referenced in the Agreement. If Buyer is purchasing a “new” Vehicle as indicated above, Buyer acknowledges that “new” means that the Vehicle has not been previously titled to an end user although the Vehicle may have been used in a demo or a show. Buyer understands and agrees that manufacturer(s)’ written warranties, if any are applicable to this Vehicle, will be provided by Dealer at the time of Vehicle delivery, or made available earlier upon Buyer’s request. Buyer acknowledges that Dealer is not an agent of the manufacturer and that Dealer has not represented or misrepresented the terms of any applicable manufacturer(s)’ written warranties. Buyer understands and agrees that if either of Buyer or Dealer should breach this Agreement or if Buyer institutes any claim arising out of the purchase of the Vehicle, the statute of limitations for any such claim is limited to one (1) year from the date of sale.
3. LIMITED SERVICE WARRANTY. Dealer represents and warrants to Buyer that it shall perform any services performed to the Vehicle using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. Dealer shall not be liable for a breach of this Section 3 unless Buyer gives written notice of the defective services, reasonably described, to Dealer within seven (7) days of the time when Buyer discovers or ought to have discovered that the services were defective, and in no event shall Dealer be responsible for any defective services later than sixty (60) days following Notification (as set forth in Section 8). Dealer shall, in its sole discretion, either (a) repair or re-perform such services; or (b) credit or refund the price of such services at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION 3 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND DEALER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED SERVICE WARRANTY SET FORTH IN THIS SECTION 3. If the services include the installation of accessories, parts or components manufactured by third parties, Dealer makes no warranty whatsoever regarding such third-party accessories, parts and components. Dealer will pass through any third-party warranties on such accessories, parts and components.
4. DEALER NOT AGENT OF MANUFACTURER. Dealer is not the agent of the manufacturer. Dealer is not responsible for changes by the manufacturer in the price, available rebate, design or accessories of specially ordered vehicles. If Dealer’s price increases on a Vehicle, or if a rebate to be received by Dealer is reduced or eliminated, or the Vehicle becomes subject to a tariff, the Buyer’s price will be increased by a like amount. If the Vehicle price increases by more than 10% (excluding price increases due to tariffs) and Buyer is dissatisfied with the increase, Buyer may cancel this order and Buyer’s deposit and trade-in or the actual cash value of the trade-in, if sold, minus any loan, will be refunded. Buyer understands that manufacturer may, from time to time, change the model, design, or other elements, including the parts and accessories, in the Vehicle and at any time a manufacturer makes such changes, neither Dealer nor manufacturer are obligated to make the same changes to Buyer’s Vehicle, even if such changes are made prior to delivery of the Vehicle.
5. DEPOSIT; PAYMENT. Unless otherwise other payment terms are indicated on the BOC, (i) a deposit is due at the time of signing this Agreement and before the Vehicle will be ordered or prepared for delivery by Dealer, and (ii) the balance due shall be paid in full within 48 hours of Notification (as set forth in Section 8) and before the Vehicle will be released to the Buyer. For any payment terms, in the event Buyer does not make timely payment in full, Dealer may charge Buyer interest on any overdue amount at a rate of 10% per annum or the maximum allowable rate under applicable law, whichever is less, until the overdue amount is paid in full. The Vehicle will not be titled to the Buyer until the contract total for such Vehicle plus any interest charges indicated herein are paid in full.
6. CANCELLATION; CHANGE FEES. There is no “cooling off” or other cancellation period for vehicle sales or services. Therefore, Buyer cannot later cancel this Agreement without the agreement of Dealer, or for legal cause. Further, if either party wishes to change any term of this Agreement or the details of the Vehicle set forth on the BOC after acceptance of this Agreement, neither party shall be bound by such changes after the date of this Agreement unless mutually agreed upon in writing. If Buyer wishes to change any detail of the BOC related to the Vehicle being purchased, Buyer shall submit details of the requested change to the Dealer in writing. Dealer shall, within a reasonable time after such request, respond to Buyer’s request indicating (i) the acceptance or denial of the change, (ii) the likely impact to timing of the Vehicle’s delivery, and (iii) any necessary variations to the fees (including any change fees that may be charged by Dealer). Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of the change.
7. DELAYS. Buyer will not hold Dealer liable for any failure or delay in performing this Agreement if such failure or delay is caused by any event outside of Dealer’s reasonable control, including, without limitation, (a) any act or omission of the Vehicle manufacturer or any component part manufacturer; (b) Buyer’s delay to respond promptly to any Dealer request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Dealer to perform services in accordance with the BOC, (c) acts of God, natural disasters, flood, fire, earthquake, or explosion; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (e) government order, law, or action; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) telecommunication breakdowns or power outages or shortages; (i) epidemics, pandemics, or acts of quarantine; and (j) other similar events beyond the reasonable control of Dealer.
8. DELIVERY; INSPECTION; RISK OF LOSS. The method of delivering the Vehicle (“Delivery”) shall be set forth in the BOC and if no such method is defined, then Buyer is responsible for picking up the Vehicle at the Dealer location within forty-eight (48) hours after being notified that the Vehicle is ready for delivery (“Notification”). Unless otherwise set forth in the BOC, the Vehicle will be delivered ExWorks (Dealer location) and full risk of loss will pass upon Notification that the Vehicle is ready for Delivery. If the Buyer delays Delivery of the Vehicle more than five (5) days after Notification, Dealer will have the right to charge a storage fee of $50 per day for storage of the Vehicle.
9. BUYER’S INSPECTION. If the Vehicle is delivered via a transportation carrier, Buyer shall immediately inspect the Vehicle upon arrival and report any defects resulting from transportation of the Vehicle directly to the transportation carrier through such carrier’s reporting processes. Separately, within forty-eight (48) hours after Delivery, Buyer shall inspect the Vehicle for conformance to the BOC and report any issues to Dealer (“Inspection”). Upon Delivery and Inspection, Buyer acknowledges: (i) having received ample opportunity for, and actually inspecting the Vehicle as fully as Buyer desires and (ii) utilizing and relying solely upon Buyer’s own judgment to inspect and determine that the Vehicle is of adequate quality, merchantable, and otherwise fit for the purposes intended by Buyer. Buyer further acknowledges that Buyer did not make Dealer aware, and that Dealer was unaware, implicitly or expressly, of any particular purpose intended by Buyer for the Vehicle. Consequently, Buyer has not relied upon Dealer’s skill or judgment in the selection or delivery of the Vehicle. Buyer acknowledges that Dealer has not made any representation regarding the Vehicle’s condition, history, status, prior usage, quality of or regularity of care or servicing, nor the existence of prior damage and/or repair of damage except as required by law.
10. FINANCING OR INSTALLMENT SALES CONTRACTS. IF YOU ARE FINANCING THIS VEHICLE, PLEASE READ THIS NOTICE: YOU ARE PROPOSING TO ENTER INTO A RETAIL INSTALLMENT SALES CONTRACT WITH THE DEALER. PART OF YOUR CONTRACT INVOLVES FINANCING THE PURCHASE OF YOUR VEHICLE. IF YOU ARE FINANCING THIS VEHICLE AND THE DEALER INTENDS TO TRANSFER YOUR FINANCING TO A FINANCE PROVIDER SUCH AS A BANK, CREDIT UNION OR OTHER LENDER, YOUR VEHICLE PURCHASE DEPENDS ON THE FINANCE PROVIDER’S APPROVAL OF YOUR PROPOSED RETAIL INSTALLMENT SALES CONTRACT. IF YOUR RETAIL INSTALLMENT SALES CONTRACT IS APPROVED WITHOUT A CHANGE THAT INCREASES THE COST OR RISK TO YOU OR THE DEALER, YOUR PURCHASE CANNOT BE CANCELLED. IF YOUR RETAIL INSTALLMENT SALES CONTRACT IS NOT APPROVED, THE DEALER WILL NOTIFY YOU VERBALLY OR IN WRITING. YOU CAN THEN DECIDE TO PAY FOR THE VEHICLE IN SOME OTHER WAY OR YOU OR THE DEALER CAN CANCEL YOUR PURCHASE. IF THE SALE IS CANCELLED, YOUNEED TO RETURN THE VEHICLE TO THE DEALER WITHIN 24 HOURS OF VERBAL OR WRITTEN NOTICE IN THE SAME CONDITION IT WAS GIVEN TO YOU, EXCEPT FOR NORMAL WEAR AND TEAR. ANY DOWN PAYMENT OR TRADE-IN YOU GAVE THE DEALER WILL BE RETURNED TO YOU. IF YOU DO NOT RETURN THE VEHICLE WITHIN 24 HOURS OF VERBAL OR WRITTEN NOTICE OF CANCELLATION, THE DEALER MAY LOCATE THE VEHICLE AND TAKE IT BACK WITHOUT FURTHER NOTICE TO YOU AS LONG AS THE DEALER FOLLOWS THE LAW AND DOES NOT CAUSE A BREACH OF THE PEACE WHEN TAKING THE VEHICLE BACK.
11. TITLE; ODOMETER STATEMENT. Title to the Vehicle will remain with Dealer until the agreed upon purchase price is paid in full in cash or Buyer has signed a retail installment contract and it has been accepted by a bank or finance company, at which time title shall pass to Buyer even though the actual delivery of the Vehicle may be made at a later date. Buyer agrees that no statement has been made as to the number of miles on any new, used, or demo vehicles, except as set forth in the odometer mileage statement as provided by the Federal Odometer Law and on the face of this Agreement as required under state law which does not constitute a warranty, express or implied, or a contractual term of this Agreement as required under state law which does not constitute a warranty, express or implied, or a contractual team of this Agreement. Buyer acknowledges receipt of such Federal Odometer Statement.
12. TRADE-IN. If Buyer is trading in a vehicle, Buyer will give Dealer the original bill of sale or the title to the trade-in. Buyer promises that any trade-in which Buyer gives in this purchase transaction is owned by Buyer free of any lien or other claim except as noted on the other side of this Agreement. Buyer promises that all taxes of every kind levied against the trade-in have been fully paid. If any government agency makes a levy or claims a tax lien or demand against the trade-in, Dealer may, at Dealer’s option, either pay it and Buyer will reimburse Dealer on demand, or Dealer may add that amount to this Agreement as if it had been originally included. Any trade-in delivered by Buyer to Dealer in connection with this Agreement shall be accompanied by documents sufficient to enable the Dealer to obtain a title to the trade-in in accordance with applicable state law. Buyer warrants that the trade-in is or will be properly titled to Buyer and/or Buyer has the right to sell or otherwise convey the trade-in and the trade-in has never been a salvaged, reconditioned or rebuilt, flooded or a lemon buyback, and the trade-in is free and clear of all liens or encumbrances except as may be noted on the front of this Agreement. If Buyer’s initial trade-in value is determined by anything other than a physical appraisal by Dealer, Dealer may later reappraise and amend the value of the trade-in allowance at such time Dealer has the opportunity to perform a physical appraisal of the trade-in. This physical appraisal will then determine the actual trade-in allowance provided on the front side of this Agreement.
13. FAILURE TO COMPLETE PURCHASE. Failure to timely accept Delivery by Buyer shall give Dealer the right to dispose of any trade-in, trading any cash consideration received as a deposit and retaining the same, and at Dealer’s option, the right to retain any deposit and pursue any other remedy available under the law to adequately compensate Dealer’s damages, costs, expenses, or losses incurred by Dealer because Buyer failed to complete this purchase; further, Dealer may make the Vehicle available for sale to other customers. If Dealer paid any negative equity balance on the trade-in, Buyer shall pay to Dealer the amount paid on Buyer’s behalf. If Dealer brings an action or involves an attorney to enforce the terms of this section, Buyer agrees to pay Dealer’s reasonable attorneys’ fees, court costs, and other expenses incurred in pursuing such action.
14. EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL DEALER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. Such excluded damages may include, but are not limited to, any loss of use, loss of time, inconvenience, aggravation, loss of wages/earnings/income, fuel/transportation expenses, hotel/motel costs, insurance, storage, rental or replacement, altered or cancelled trips/vacations, the cost of any food/meals and any other consequential, indirect, incidental, special, exemplary, punitive or enhanced damages. Buyer acknowledges that Buyer shall not seek or recover such damages from Dealer. Buyer acknowledges this disclaimer of damages is independent of and shall survive any failure of the essential purpose of any warranty or remedy. DEALER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED TOTAL CONTRACT PRICE OF THE VEHICLE BEING SOLD UNDER THIS AGREEMENT.
15. PATENT LIABILITY. Where Dealer supplies goods to Buyer’s specifications and/or manufactured or fabricated from Buyer’s blueprint, sketch, specifications, or tooling Buyer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Dealer in any capacity if such suit or proceeding involves a claim that any goods or any part thereof constitutes an infringement of any patent, copyright or trademark and Buyer shall pay or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by Dealer related to such legal action.
16. TAXES, INSURANCE. Buyer shall be liable for all sales, use, or other taxes of a similar nature applicable to the transaction unless such payment is otherwise prohibited by law. Buyer assumes responsibility to cover the Vehicle described on the front of this Agreement with necessary and proper insurance coverage and assumes all legal liability arising from the operation of the Vehicle from the time of Delivery. Buyer understands that Buyer is not covered by insurance on the Vehicle until Buyer’s insurance company accepts coverage on the Vehicle. Buyer agrees to hold Dealer harmless from any and all claims due to loss or damage prior to Buyer’s insurance company accepting coverage on the Vehicle.
17. CHOICE OF LAW AND VENUE, FEES. Any controversy, dispute or claim arising out of or relating to this Agreement or breach thereof shall be interpreted under the laws of the state in which Dealer is located and venue will be in the state and county in which Dealer is located or the applicable federal court. If Dealer brings a legal action to enforce or interpret this Agreement and prevails, Buyer shall pay Dealer’s reasonable attorneys’ fees and costs incurred in such action. If Buyer brings an action based on this Agreement and does not prevail, Buyer shall pay Dealer’s reasonable attorneys’ fees and costs incurred in the defense of such action or any part thereof.
18. WAIVER OF JURY TRIAL; CLASS ACTIONS. Buyer agrees that any controversy, dispute or claim arising out of or relating to this Agreement or breach thereof will be decided by a judge, rather than a jury. Buyer further agrees in connection with this purchase to waive Buyer’s right to participate as a class member in any class action lawsuit that might be brought against Dealer.
19. SEVERABILITY. Buyer and Dealer agree that each portion of this Agreement is such that if any term, provision or paragraph is found to be invalid, voidable, or unenforceable for any reason, such provision or paragraph may be severed and all other portions of this Agreement shall remain valid and enforceable.
