Terms and Conditions

1. ACCEPTANCE AND APPROVAL

The sale of products and services (collectively, “Goods”) by Midway Trailers Inc., a Missouri corporation, or any of its affiliates (individually and collectively, the “Dealer”) to the buyer (the “Buyer”), as designated on the invoice, quote, purchase order, and/or other document or communication in which these Terms and Conditions of Sale are referenced (collectively, the “Invoice”), is subject to Buyer’s acceptance of these Terms and Conditions of Sale (the “Terms and Conditions”), without modification. These Terms and Conditions are the only terms and conditions applicable to the sale of Goods, except for provisions relating to product price, quantity, specifications, delivery schedules, and locations as elsewhere agreed to in writing by the parties. Buyer acknowledges and agrees that these Terms and Conditions are incorporated into, and are a part of, any Invoice, release, requisition, work order, shipping instruction, specification, and/or any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Goods by Dealer to Buyer (these documents are collectively referred to as the “Contract”). Signing the Invoice, issuance of a purchase order, or acceptance of the Goods by Buyer all constitute acceptance of these Terms and Conditions. Any additional or different terms or modifications to these Terms and Conditions proposed by Buyer are expressly rejected by Dealer and are not part of the Contract. All orders and shipments are subject to acceptance by Dealer and/or approval of Dealer’s credit department.

2. PRICE

Prices for Goods and other related information shown in any Dealer or manufacturer product publication, including but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental
authority unless otherwise expressly noted by Dealer.

3. DEPOSIT

The amount of the deposit (the “Deposit”) shall be as stated on the face of the accepted Invoice, or as otherwise confirmed in writing by Dealer. Dealer will submit Buyer’s order for new Goods to the manufacturer within a reasonable time after the date on the accepted Invoice. Buyer acknowledges and agrees that the Deposit shall be non-refundable, except as otherwise specifically provided herein and, with respect to any Deposit on new Goods, said Deposit shall be refundable only to the extent Dealer is able to obtain a refund of the Deposit from the manufacturer. Upon completion of the transaction contemplated by the Contract, Dealer will credit the Deposit toward the purchase price of the Goods.

4. TAXES

Prices quoted do not include (and Buyer shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Goods by Dealer with the exception of Dealer’s income tax obligations arising out of the sale of the Goods.

5. TERMS OF PAYMENT

Unless otherwise specifically agreed in writing by Dealer, the total price is due and payable to Dealer, without setoff or other deductions or charges, on the Delivery Date (as hereinafter defined). All amounts shall be paid in $US. If Buyer fails to fulfill the terms of payment or to comply with any other provision of this Contract, Dealer may (a) defer performance under this and any other purchase orders of Buyer; (b) revise its terms of payment and/or credit; or (c) without waiving any other rights it may have, terminate this Contract. Dealer reserves the right before placing an order for any additional Goods to require from Buyer payment in cash or satisfactory security for performance of Buyer’s obligations if, in Dealer’s sole opinion, the credit or financial condition of Buyer is, or is about to become, impaired. In the event Buyer fails to make payment of the purchase price or any other amounts due under this Contract, when due, Dealer shall have the right to employ attorneys to collect the balance due and Buyer agrees to pay all collection costs incurred by Dealer, including Dealer’s attorney’s fees.

6. DELIVERY

Unless otherwise specifically agreed in writing by Dealer, Buyer shall take delivery of the Goods on the date the Goods are ready for delivery, as determined by Dealer in its sole discretion (the “Delivery Date”). Dealer will endeavor to provide Buyer advance written notice of the Delivery Date. If Buyer fails to take delivery on the Delivery Date, Dealer reserves the right to sell the Goods without notice or liability to Buyer. If delivery of Goods is delayed by or at the request of Buyer, Dealer may store the Goods on Dealer’s premises at Buyer’s risk, and Buyer shall pay all storage charges and other incidental expenses incurred by Dealer as a result of the delay

7. INSPECTION

Buyer will have the right, during normal business hours at Dealer’s location, to inspect the Goods for defects and nonconformance and to notify Dealer, in writing, of any defects, nonconformance, or rejection of the Goods. Buyer will be deemed to have inspected and irrevocably accepted all Goods unless written notice of rejection, specifying the basis therefore in reasonable detail, is provided to Dealer on or before the Delivery Date. After acceptance, Buyer will have no right to reject the Goods for any reason or revoke acceptance.

8. DELIVERY DELAYS

Any delivery dates or other schedule of performance by Dealer are approximations, and the sole obligation of Dealer with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Goods, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Dealer will have no liability to Buyer or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer, manufacturer, or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Dealer.

9. TITLE AND RISK OF LOSS

Risk of loss or damage to the Goods will pass to Buyer upon acceptance of the Goods pursuant to Section 7 of these Terms and Conditions, or as otherwise specifically indicated in the Contract. Title to all Goods shall remain in Dealer until all terms of payment have been satisfied.

10. PARTIES TO THE CONTRACT

The provisions of this Contract are and will be for the benefit of Dealer and Buyer only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce any provision of this Contract. Any reference to the manufacturer of Goods is for the sole purpose of generally indicating the source of the Goods.

11. CHANGE IN THE CONTRACT PRICE

If the price to Dealer of new Goods of the series and body type ordered by the Buyer is increased by manufacturer prior to delivery of said Goods to Buyer, Dealer reserves the right to increase the cash delivered price of such Goods to Buyer accordingly. If such cash delivered price is increased by Dealer by more than five (5.0%) of the purchase price stated in the accepted Purchase Agreement, Buyer may terminate this Contract and receive a refund of the Deposit. If a used item has been traded in as a part of the consideration for the new Goods, the used item shall be returned to Buyer upon payment of a reasonable charge for storage and repairs (if any) or, if such used item has been previously sold by Dealer, the amount received therefor, less a selling commission of 15% and any expense incurred in storing, insuring, conditioning or advertising the used item for sale, shall be returned to the Buyer.

12. MANUFACTURER’S DESIGN CHANGES

In the event the manufacturer changes or modifies the design of, or any part or accessory of the new Goods after Buyer’s order has been entered by the Dealer, the Buyer shall have no claim or right against the Dealer should the Buyer’s new Goods not contain such changes or modifications, nor shall the Dealer be required to effect such changes or modifications to the Buyer’s new Goods.

13. CHANGES OTHER THAN MANUFACTURER’S DESIGN CHANGES

If the ordered Goods are not equipped in accordance with this Contract on the Delivery Date, the Buyer may either refuse to accept delivery and terminate this Contract, with no loss of Deposit, or Buyer may proceed with the purchase of the new Goods and the parties will negotiate in good faith to adjust the purchase price to account for the fact that the Goods are not equipped in accordance with this Contract.

14. EVIDENCE OF TITLE

Any used item delivered by the Buyer to the Dealer in connection with this transaction shall be accompanied by title documents sufficient to enable the Dealer to obtain a title to the item in accordance with applicable state law. The Buyer represents and warrants that it has the right to sell or otherwise convey title to such item and that such item is free and clear of liens or encumbrances, except as may be noted on the accepted Invoice.

15. APPRAISAL OF USED ITEM

If a used item is being traded in by Buyer as part of the purchase price and the delivery to the Dealer will not be made until delivery of the Buyer’s new Goods, the Dealer shall have the right to reappraise the Buyer’s used item at the time of delivery of the new Goods. The reappraised amount shall be the amount allocated for the used item in this transaction.

16. MANUFACTURER’S WARRANTY – DISCLAIMER OF WARRANTIES

UNLESS A SEPARATE WRITTEN DOCUMENT SHOWING TERMS OF ANY DEALER WARRANTY OR SERVICE CONTRACT IS FURNISHED BY THE DEALER TO THE BUYER, THE GOODS ARE SOLD “AS-IS”, “WHERE-IS”, AND DEALER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE GOODS, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DEALER WILL TRANSFER TO BUYER ANY WARRANTY EXTENDED BY THE MANUFACTURER OF THE GOODS, PROVIDED SUCH WARRANTY IS TRANSFERABLE. THE SOLE REMEDY AVAILABLE TO BUYER WITH RESPECT TO DEFECTS IN THE GOODS WILL BE AGAINST THE MANUFACTURER UNDER ANY APPLICABLE MANUFACTURER’S WARRANTY TO THE EXTENT AVAILABLE TO BUYER. If the Goods, or any portion thereof, are resold by Buyer, Buyer will include in its agreement for resale provisions that limit recoveries in accordance with the Contract. In case of Buyer’s failure to include in any agreement for resale the terms providing for such limitations, Buyer will indemnify, defend and hold Dealer harmless against any liability, loss, cost, damage, or expense (including attorney’s fees) arising out of or resulting from the failure. BUYER ASSUMES FULL RESPONSIBILITY THAT THE GOODS PURCHASED UNDER THE CONTRACT MEET THE SPECIFICATIONS AND/OR INTENDED USE OF BUYER, AND DEALER MAKES NO REPRESENTATION WITH RESPECT TO THEM.

17. LIMITATION ON LIABILITY

Dealer shall not be liable to Buyer for incidental or consequential damages of any kind, whether based in contract or tort, including but not limited to: lost profits, loss of financing, lost production, additional labor costs, loss of anticipated profits or goodwill, loss by reason of plant shutdown, nonoperation or increased expense of operation, service interruption, cost of replacement power, claims by customers of any nature, loss of use of capital or revenue, lost revenue, lost bonding, and fines or penalties of any nature. The liability of Dealer to Buyer shall also not in any situation exceed the purchase price of the specific underlying and/or related Goods.

18. INSURANCE AVAILABILITY

In the event this Contract includes a charge for credit life or credit disability insurance and for any reason such insurance cannot be provided, the Buyer shall receive a credit for the amount Buyer paid for such insurance. The inability of the Dealer or any assignee of the Dealer to secure such insurance for the Buyer shall not relieve the Buyer from the obligation to purchase the Goods described in the Contract. Credit life and credit disability insurance are not mandatory.

19. INDEMNITY

Buyer agrees to indemnify, hold harmless, and defend Dealer from and against any claim, action, loss, liability, expense, damage, and/or judgment, including litigation costs and attorney’s fees, which arise or result from the Goods purchased from Dealer. In the event of any action by Dealer to enforce Buyer’s indemnity obligation under this provision, Dealer shall be entitled to recover not only the underlying attorney’s fees and costs pursuant to the indemnity obligation, but also the attorney’s fees and costs incurred in connection with the enforcement action.

20. BUYER DEFAULT

Unless this Contract shall have been terminated by Buyer under and in accordance with Sections 11 or 13, in the event of default under this Contract by the Buyer, the Dealer shall have the right to retain any Deposit made by Buyer, and, in the event a used item has been traded in as a part of the consideration for the Goods ordered hereunder, to sell such used item and reimburse itself out of the proceeds of such sale for the expenses specified in Section 11 above and for such other expenses and losses as Dealer may occur or suffer as a result of such default. In addition, Buyer will promptly pay to Dealer on demand all direct and indirect costs (including, without limitation, reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Dealer in connection with the Contract, all as reasonably determined by Dealer, plus a ten (10%) percent profit.

21. SAVINGS CLAUSE

If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Contract shall nonetheless remain in full force and effect.

22. MODIFICATIONS AND WAIVER—ENTIRE AGREEMENT

Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Contract. The Contract contains the entire agreement between Dealer and Buyer and can be modified or rescinded only by a writing signed by both parties. No waiver of any provision of the Contract will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist on strict performance of the Contract will not be construed as a waiver of any term or condition of the Contract. In the event of any conflict between these Terms and Conditions and any other term or condition on any Invoice or other document or communication, the term or condition imposing the greatest burden on Buyer shall control.

23. GOVERNING LAW AND VENUE

The Contract is governed by the laws of the State of Missouri The exclusive venue for any action arising out of, or relating, to the Contract and/or sale of Goods to Buyer shall be the appropriate state or federal court in the County of Scott, State of Missouri. Buyer and Dealer opt out of, and render inapplicable, all provisions of the United Nations Convention on Contracts for the International Sale of Goods.

MO Great Dane trailers