Definitions. “Seller” means Midwest Truck & Auto Parts, Inc., an Illinois corporation. “Terms and Conditions” means these standard terms and conditions to quotations and sales. “Product” or “Products” means the goods quoted, offered for sale, or being sold. “Manufacturer” means the company manufacturing the Product, which may or may not be Seller. “Purchaser” means the person, business entity, or governmental entity to whom the Seller is providing a quotation for the sale of Product or is selling the Product. Any other capitalized terms not defined hereunder shall have the same meaning as set forth in the Illinois Uniform Commercial Code.
Applicability. All quotations issued by Seller to Purchaser and all sales of Product from Seller to Purchaser, including, without limitation, all written quotations and order acknowledgements that these Terms and Conditions are appended to, referenced by, or accompany (including as an email attachment), are subject to these Terms and Conditions.
Acceptance. All purchase orders are accepted by Seller at its offices in Chicago, Illinois. Seller’s acceptance of any purchase order it receives is expressly limited to the exact terms contained in these Terms and Conditions. Additional or different terms contained in Purchaser’s offer or any attempt by Purchaser to vary any of the terms of these Terms and Conditions shall be rejected but such proposal shall not operate as a rejection of Purchaser’s offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the Products to be provided hereunder, in which case such additional or different terms shall be deemed material and such offer shall be deemed accepted without said additional or different terms or attempted variations. Acceptance by Seller of any purchase order containing terms additional to or different from the terms contained in these Terms and Conditions or containing modifications of the terms contained in these Terms and Conditions shall not be deemed as assent to those additional, different, or modified terms. Purchaser’s acceptance of all or any part of the Products ordered from Seller shall constitute assent by Purchaser to the terms contained in these Terms and Conditions. If these Terms and Conditions shall be deemed an offer by Seller to sell Products to Purchaser, such offer is expressly limited to the exact terms contained herein. The dispatch of a purchase order by Purchaser shall then constitute Purchaser’s acceptance of these Terms and Conditions. If these Terms and Conditions is deemed an offer, any proposal by Purchaser for additional or different terms or any attempt by Purchaser to vary any of the terms of these Terms and Conditions in Purchaser’s purchase order is hereby objected to and rejected; provided, however, that any such proposal by Purchaser shall not operate as a rejection of Seller’s offer unless it contains variances in the terms of the description, quantity, price or delivery of the Products to be provided hereunder, in which case any such proposal shall be deemed material, and these Terms and Conditions shall be deemed accepted without said additional or different terms or attempted variations.
Payment Terms. All invoices are due within terms approved by Sellers credit department as memorialized on Sellers invoice. COD restrictions may be placed on any past due account. Purchaser agrees to pay account promptly within terms stated. Accounts past due shall bear interest at the rate of eighteen (18%) percent per annum or, if less, the highest rate of interest allowed by law. If Purchaser delays shipment, payments shall become due as of the date of such delay. All claims for monies due or to become due Purchaser from the Seller shall be subject to deduction by the Seller for any amounts due the Seller from Purchaser.
Taxes. Any tax which the Seller may be required to pay or collect through assessment or otherwise, under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any Products described herein, including, without limitation, taxes upon or measured by receipt from sales or services, shall be for the account of Purchaser and be added to the price of such Products. Purchaser shall promptly pay the amount thereof to Seller upon demand but may, in lieu of such payment, furnish to Seller evidence of the issuance of tax exemption certificates acceptable to the appropriate taxing authorities.
Pricing/Quantity of Products. Prices for the Products are subject to change without notice and all Products ordered by Purchaser are subject to availability.
Security Interest. Buyer hereby grants to Seller a security interest in the Products sold hereunder, until the Buyer has completed payment of the purchase price, plus accrued interest, and fully performed all of the other terms and conditions hereof, at which time the Seller’s security interest is satisfied. This form constitutes a “security agreement” entitling Seller to file such perfection certificates as it deems necessary to evidence its security interest, and Buyer hereby agrees to Seller taking such action. The Products covered hereby shall remain strictly personal property, irrespective of the mode of its attachment to or use within vehicles, the consequences of its being disturbed or removed, or the use made of it. Buyer shall maintain the goods covered hereby in good condition and repair and not permit its value to be impaired. Buyer shall not sell, mortgage, pledge or otherwise deal in or encumber the goods or any part of it or permit it to be removed from the place where first installed (so long as any portion of the purchase price or accrued interest or any other sum due Seller under these terms of sale remains unpaid), without Seller’s prior written consent. Seller is authorized to inspect the Products wherever located at any reasonable time or times.
Credit. All orders are subject to the approval of Seller, and Seller may at any time refuse to make shipment or delivery if Purchaser fails to fulfill the terms and conditions of payment or fails to provide security satisfactory to Seller. Seller reserves right to refuse or cancel credit and require full payment prior to shipment. If in Seller’s opinion the financial condition of Purchaser at any time does not justify continuation of production or shipment on the terms of payment specified, Seller may require full or partial payment in advance or such further assurance as Seller shall reasonably require to justify such continued production or shipment.
Default in Payment and Bankruptcy of Purchaser. If Purchaser fails to make payments on any agreement between Purchaser and Seller in accordance with Seller’s terms, Seller, in addition to any other remedies available to it, may, at its option, (i) defer further shipments until such payments are made and satisfactory credit arrangements are reestablished or (ii) cancel the unshipped balance of any order. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Purchaser, the inability of Purchaser to pay its debts as they become due, or in the event of the appointment, with or without Purchaser’s consent, of an assignee for the benefit of creditors or of a receiver, then Seller shall be entitled, in its sole discretion, to cancel the unshipped balance of any order without any liability.
Transportation Charges. All prices, quotations, shipments, and deliveries by Seller are F.O.B. Seller’s warehouse, unless otherwise consented to in written by the Seller. All transportation and other charges are for the account of Purchaser, including any increase or decrease in such charges prior to shipment.
Method of Shipment. Method and route of shipment is at Seller’s discretion, unless Purchaser supplies explicit written instructions which are accepted by Seller. If the method specified by Purchaser is deemed by Seller to be unavailable or otherwise unsatisfactory, Seller reserves right to use an alternate method or route or both whether or not at a higher cost to Purchaser. Seller shall promptly notify Purchaser of any such change. The risk of loss or damage to the Products shipped shall pass to Purchaser when the Products are delivered to the carrier for shipment.
Force Majeure. Seller shall not be liable for any delay in the performance of orders, or in the delivery or shipment of the Products, or for any damages suffered by Purchaser as a result of such delay when such delay is occasioned by causes beyond Seller’s control. Such causes shall include but are not limited to an act of God, act of Purchaser, terrorism, fire, explosion, flood, epidemic, unusually severe weather, drought, war, riots, sabotage, vandalism, accident, embargo, government priority, government action or failure of the government to act when action is required, requisition or allocation or other action of any governmental authority, interruption of or delay in transportation, inadequacy or shortage or failure of supply of materials or equipment, breakdowns, non‑scheduled shutdowns for repairs, plant accidents, labor shortage, strikes, labor trouble, or by compliance with any order or request of the United States Government, any other governmental authority with jurisdiction or any officer, department, agency, instrumentality or committee thereof (or, for products not manufactured by Seller, any delay on the part of the Manufacturer with respect to any of the forgoing). It is understood and agreed that economic conditions affecting the ability or desirability of the performance of this agreement by either party shall not be deemed to constitute “force majeure” circumstances as contemplated by this Section. The Seller shall have the right to cancel any purchase order with Purchaser or any part thereof in the event of the happening of any such cause beyond the Seller’s control without any resulting liability.
Good Delivery. Shipments made within a reasonable time after the specified date of delivery shall constitute a good delivery. No right of cancellation shall accrue to Purchaser based on such a delivery.
Limited Warranty. Purchaser understands that Seller is not necessarily the manufacturer of the Products purchased by Purchaser hereunder and the only warranties offered are those of the Manufacturer. In purchasing the Products, Purchaser is relying on the Manufacturer’s specifications only and is not relying on any statements, specifications, photographs, or other illustrations representing the Products that may be provided by Seller. Seller warrants that all World American® branded Products, except as otherwise provided herein, will be free from defects in material and workmanship for 1 year or 100,000 miles, whichever occurs first. World American® branded Hydraulic and PTO Products are warrantied to be free from defects in material and workmanship for 1 year, with no mileage limit. World American® branded Air spring Products are warrantied to be free from defects in material and workmanship for 3 years or 100,000 miles, whichever comes first. This warranty will not apply to any Product that has been modified, damaged or is defective as a result of any accident, misuse, improper installation, negligence, repair, or alteration, or use in competitive applications. This warranty shall terminate immediately if ownership of the vehicle with the Product installed is transferred, or if the Product is reinstalled or reused on any subsequent vehicle. To make a warranty claim, Buyer must contact their distributor for a return goods authorization (“RGA”) number. No returns will be accepted without an RGA number. All Products must be returned to Seller freight prepaid. Seller will issue a credit equal to the original purchase price for all defective Products covered by this warranty. In the event that a warranty claim cannot be substantiated by Seller, the Products will be returned to Buyer, freight collect. This warranty is in lieu of all other warranties, expressed or implied, including, but not limited to, any implied warranty of NONINFRINGEMENT, merchantability, or fitness for a particular purpose. In no event will Midwest Truck and Auto Parts be liable for incidental, special or consequential damages including, but not limited to, lost wages, labor, towing or any rental car costs.
Damaged Products. If any Products should arrive at Purchaser’s destination in a damaged condition or should a shortage occur, Purchaser shall immediately report the damage or shortage to the delivering carrier and to Seller. Any loss or shortage occasioned by damage or otherwise occurring in transit will be for account of Purchaser.
Claims. Claims respecting the condition of Products, compliance with specifications or any other matter affecting Products shipped to Purchaser must be made promptly and, unless otherwise agreed to in writing by Seller, in no event later than thirty (30) days after receipt of the Products by Purchaser. Purchaser shall set aside, protect, and hold such Products without further processing until Seller has an opportunity to inspect and advise of the disposition, if any, to be made of such Products. In no event shall any Products be returned to Seller, reworked, or scrapped by Purchaser without the express written authorization of Seller.
LIMITATION OF PURCHASER’S REMEDIES; EXCLUSIVE OF DAMAGES.PURCHASER’S REMEDIES WITH RESPECT TO ANY CLAIM ARISING OUT OF ANY ORDER OR SELLER’S PERFORMANCE IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, ANY CLAIM ARISING OUT OF ANY DEFECT OR ALLEGED DEFECT IN ANY PRODUCTS FURNISHED BY SELLER, SHALL BE LIMITED EXCLUSIVELY TO THE RIGHT OF REPLACEMENT OF SUCH PRODUCTS OR TO REPAYMENT OF THE PURCHASE PRICE THEREFOR. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF ANTICIPATED PROFITS) INCURRED BY PURCHASER WITH RESPECT TO ANY PRODUCTS FURNISHED BY SELLER.
Quality Assurance. Seller shall have no obligation to ensure that any Products purchased from Seller meet any special quality assurance specifications and/or other requirements.
Cancellation. Orders cannot be cancelled by Purchaser without the express written consent of the Seller. Should Purchaser cancel an order without consent, Purchaser shall reimburse Seller against all losses occasioned by such cancellation.
Returns. Products may not be returned to Seller without Seller’s consent and are subject to the approval of Manufacturer and/or Manufacturer’s policies. Requests to return product must be submitted to Seller’s customer service department. If an exchange or return is authorized by Seller, an RGA will be issued to Buyer by Seller, and associated Products must be shipped by Buyer freight prepaid. Any Product returned without the RGA number prominently displayed on the package will be refused. Seller must be notified of any shipping error within ten (10) business days of Buyer’s receipt. Any return after ten (10) business days, if authorized by Seller, is subject to a 20% restocking charge. Seller will not accept returned Product under any circumstances after ninety (90) days following shipment. All returns are subject to Seller’s inspection.
Technical Assistance and Advice. Seller’s warranty shall not be enlarged and no obligation or liability shall arise out of Seller’s rendering of technical assistance, technical advice facilities, service or recommendations made by Seller in connection with Purchaser’s purchases of the Products hereunder. Said technical services, advice, assistance or recommendations made by Seller or any representative of Seller concerning any use or application of any Products furnished hereunder is believed to be reliable, but SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND THE SAME ARE HEREBY EXPRESSLY DISCLAIMED as to the same and the results to be obtained. Purchaser assumes all responsibility for loss or damage resulting from the use of any such Products.
Setoffs and Counterclaims. All claims for monies due or to become due Purchaser from Seller hereunder shall be subject to deduction by Seller for any setoff or counterclaims for monies due or to become due Seller from Purchaser arising out of this or any other Terms and Conditions of Seller or any other agreements with Purchaser.
Assignment. Purchaser shall not assign any order or any interest therein without the written consent of Seller. Any such actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order upon written notice to Purchaser.
Termination. Seller may terminate any order or any part thereof for any reason at Seller’s convenience upon written notice to Purchaser. Upon such termination, Purchaser agrees to waive all claims for damages including, without limitation, any loss of anticipated profits, and, unless otherwise provided in these Terms and Conditions, to accept as its sole remedy for termination the reasonable additional costs of obtaining substitute Products of the same quantity and quality, provided that in no event shall such costs exceed the price of the order or part thereof so terminated as stated on Terms and Conditions. Any claim for adjustment not asserted within ninety (90) days from the date of such termination shall be deemed to have been waived by Purchaser.
Allocation of Risk. Purchaser acknowledges that these Terms and Conditions allocates risks with respect to Products sold to Purchaser hereunder and this risk allocation is reflected in the prices to be paid by Purchaser for said Products purchased hereunder. Purchaser warrants that it has read this provision, understands it, and is bound by its terms.
Entire Agreement. These Terms and Conditions constitutes the entire agreement between Seller and Purchaser with respect to purchases of the Products.
Modification. No addition to or modification of the terms and conditions of these Terms and Conditions shall be binding on Seller unless specifically agreed to by Seller in writing.
Severability. If any provision of these terms and conditions of these Terms and Conditions shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provision hereof, which shall be construed as if such illegal and unenforceable provision(s) had not been inserted herein.
Waiver. Seller’s failure to insist on performance of any of the terms or conditions of these Terms and Conditions or to exercise any right or privilege or Seller’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
Relationship of Parties. Purchaser shall at all times be an independent contractor, and nothing contained in these Terms and Conditions shall be deemed to constitute or create an employment, partnership, joint venture, or agency relationship between the parties hereto.
Governing Law. The terms of these Terms and Conditions shall be governed by the laws of the State of Illinois (without regard to conflict of laws provisions). The parties agree that any action or proceeding to enforce or arising out of these Terms and Conditions shall be commenced only in state or federal courts located in Chicago, Illinois. The parties consent to such jurisdiction, agree that venue will be proper in such courts and waive any objections based upon Forum Non Conveniens. The choice of forum set forth in this Section shall not be deemed to preclude the enforcement of any action under these Terms and Conditions in any other jurisdiction.