Terms of Service

1. Agreement

These Terms and Conditions of Sale and Service (the "Terms"), together with Seller's quote, job card, or order form to which these Terms are attached (collectively, the "Agreement"), constitute the entire agreement between Wayne Truck & Trailer Ltd., an Ohio limited liability company ("Seller") and the customer ("Customer") requesting work from Seller, and supercede any and all prior or contemporaneous understandings, agreements, negotiations, and communications, whether written or oral. No terms or conditions set forth in any future written or oral communication between Seller and Customer shall alter or supplement the Agreement unless in a writing signed by authorized representatives of Seller and Customer; provided, however, if additional or alternative Work (defined below) is requested by Customer during a service visit to Seller's facility not contemplated by the Agreement, and Seller agrees to perform such Work, the provision of such Work shall form a part of the Agreement per the agreed upon terms, regardless of whether it is in writing.

2. Evaluation

Upon Seller's receipt of Customer's vehicle or component thereof (the "Vehicle") at Seller's facility (the "Repair Shop"), Seller will use good faith efforts to evaluate the Vehicle and the defects, problems, and other issues asserted by Customer (the "Problems") with respect to the Vehicle. After the evaluation, Seller will either make recommendations to Customer of actions to take to correct the Problems or advise Customer that diagnostic testing will be required to complete the evaluation of the Problems. Customer acknowledges and agrees that: (i) Seller is not compensated for its evaluation unless agreed upon by Customer; (ii) the evaluation is not a definitive determination of the corrections required to fix the Problems and Seller will make good faith efforts to perform the evaluation; and (iii) recommendations are often made to "rule out" less costly or less extensive potential alternatives to resolution of the Problems. For these reasons, and others, Customer agrees that Seller shall have no liability to Customer for any evaluation of the Vehicle or any recommendations or advice relating thereto, and Customer agrees to indemnify and hold harmless Seller and its members, managers, employees, and representatives with respect to any such evaluation, recommendation, or advice.

3. Diagnostics

Seller agrees to perform such diagnostic services on the Vehicle as requested by Customer. Diagnostic services include the time of Seller's technicians to disassemble and reassemble the Vehicle. At Customer's request, Seller will provide an estimate to Customer of the total cost of the diagnostic services, and will advise Customer of any additional cost of such services as required by law. If Customer elects not to receive an estimate for the cost of such services, Customer shall still be obligated to pay to Seller its standard fees and costs related thereto. Seller will use reasonable care in performing diagnostic services, including disassembly and reassembly of the Vehicle. However, Customer acknowledges that the process of these services can cause physical damage to, or render inoperable, the Vehicle and components thereof, whether due to an existing defect or condition or otherwise. Seller shall not be liable to Customer for any damage or condition caused by diagnostic services, unless due to the grossly negligent act of Seller or its employees or representatives.

4. Services

Seller agrees to install such replacement parts, and perform repairs and services, as are requested by Customer for resolution of the Problems or otherwise requested by Customer. The repair services will be performed with workmanship that is reasonably acceptable in Seller's trade. If resolution of any Problem requires any parts or repair services in addition to those requested by Customer, Seller will use good faith efforts to advise Customer of such additional parts and repair services, but Customer's failure to approve such parts or repair services shall not limit or restrict Customer's obligation to pay Seller for such parts or repair services.

5. Price

Customer agrees to pay Seller for all diagnostic services, parts, and repair services provided to Customer at the charges agreed to by Customer, or if not applicable Seller's standard rates, including applicable mark-ups. Any Seller estimation of the cost of such parts and services is an estimate only, and not a binding quotation. Seller will use good faith efforts to advise Customer of costs exceeding any estimate provided, but Customer's failure to approve such excess cost shall not limit or restrict Customer's obligation to pay Seller for such excess costs. All Seller charges for parts and services provided to Customer are collectively the "Price".

6. Payment

Unless otherwise specified herein, Customer shall pay Seller for the Price, in full, at the earlier of: (i) completion of all diagnostic services, parts, and repair services (collectively, the "Work") by Seller; and (ii) cancellation of the Work by Customer, per Section 12 of these Terms. Seller may, at its election at any time, require Customer to pay Seller in advance for any Work, and Seller shall not be responsible for performing any further Work unless and until such payment is made. Unless otherwise permitted by Seller, payment for Work shall be in cash. If Seller permits payment in any other form, Customer shall be responsible for any and all additional costs incurred by Seller in connection therewith, including but not limited to cancelled check fees. Any portion of the Price not paid in accordance with this Section 6 shall bear interest at the rate of 1.5% per month, compounded monthly. Customer agrees to pay Seller its reasonable attorneys fees and costs arising out of or relating to Customer's failure to pay Seller in accordance with this Section 6.

7. Possession

Seller shall keep the Vehicle at its Repair Shop prior to and during performance of the Work, unless any Work is to be provided off-site, in which case Seller shall be deemed to be in possession of the Vehicle so long as its technician or other employee is around the Vehicle. Seller may transport the Vehicle from, its location to the Repair Shop, from the Repair Shop to another location for purposes of any Work that will be performed by others (such transportation to be additional Work of Seller payable at the charge agreed to by Customer or, if not applicable, Seller's standard rates). Customer agrees that Customer assumes the risk of any loss or damage to the Vehicle while in the possession of Seller, whether due to theft, fire, accident, or any other cause, excluding any intentional act of Seller or its employees or representatives. Customer acknowledges and agrees that Customer maintains comprehensive automobile insurance on the Vehicle or has elected not do so, but in either event Customer is in a better position than Seller to evaluate the risk of insuring against such risks.

Upon completion of the Work and payment in full to Seller for that Work, Customer shall promptly, but not later than 2 days, return to the Repair Shop during its normal working hours to re-take possession of the Vehicle. At any time, Seller may request that Customer re-take possession of the Vehicle, within 2 days after notice from Seller, during the normal working hours of the Repair Shop. If Customer does not timely re-take possession of the Vehicle, Seller may store the Vehicle on the property of the Repair Shop or off-site, at such storage rates as from time-to-time adopted by Seller.

8. Lien

Customer acknowledges and agrees that Seller has a lien on the Vehicle to secure payment in full for the Work, and any storage fees provided for in Section 6 of these Terms. Seller may maintain possession of the Vehicle until such time as it is paid in full for the Work, and Customer authorizes Seller to re-take possession of the Vehicle if any payment, in whole or in part, is declined, reversed, or otherwise not retained by Seller. Seller may give written notice to Customer at the last known address of Customer, giving Customer no less than ten (10) days to re-take possession of the Vehicle. If Customer fails to pay Seller in full or fails to re-take possession of the Vehicle during that period, Customer agrees that Seller may sell the Vehicle at private or public auction, and in furtherance thereof any court of competent jurisdiction may order a replacement certificate of title be provided to Seller for the Vehicle. All costs of sale, including but not limited to reasonable attorneys fees and costs, and auctioneer fees, shall be deducted from the proceeds and paid. The remaining proceeds of the sale shall be first used to pay Seller for any Work not yet paid for, and for any storage fees. The balance, if any, shall be held by Seller pending reasonable instructions from Customer, provided that Seller may deposit the balance pursuant to Ohio's unclaimed funds laws.

9. Warranty; Warranty Disclaimers

Seller warrants that it will re-perform any diagnostic services or repair services that were not of good workmanship if Customer notifies Seller of the claim within thirty (30) days after completion of those services. Re-performance of the services is Customer's sole remedy for breach of Seller's warranty; provided, however, if the same workmanship issue cannot be fixed by Seller after two (2) repair attempts, Customer may have the services re-performed by another repair shop and Seller will reimburse Customer the reasonable cost thereof. If any separate written warranty is provided by Seller to Customer (a "Separate Warranty"), that Separate Warranty: (i) shall apply not in lieu of, but in priority to, the warranty set forth above; and (ii) shall be subject to all of the Terms set forth herein, regardless of whether the Terms are expressly incorporated therein. Seller shall have no warranty obligations for so long as any amounts are due Seller for Work performed under the Agreement or any other agreement between Seller and Customer. Seller does not warrant: (i) parts or services provided by persons or entities other than Seller and its employees and representatives; or (ii) any Work performed on electrical, electronic, hydraulic, or pneumatic systems, or any alignment.

EXCEPT FOR THE WARRANTY SPECIFIED ABOVE, SELLER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WORKMANSHIP. ALL PARTS ARE PROVIDED TO CUSTOMER "AS IS", AND SELLER MAKES NO WARRANTY RELATED THERETO.

Seller agrees to assign to Customer any assignable warranties provided by the manufacturers or distributors of any parts.

The Work may include parts and/or services consisting of modifications to a vehicle that are not in accordance with a vehicle manufacturer's warranty, specifications, or requirements (the "Manufacturer Requirements"). Seller makes no representation or warranty with respect to any such Manufacturer Requirements or conformity of the Work thereto, and Customer agrees to hold Seller harmless with respect to any such Manufacturer Requirements.

10. Disclaimer of Damages; Limitation of Liability

SELLER HEREBY DISCLAIMS ANY AND ALL CONSEQUENTIAL AND INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE, DOWNTIME, COVER, AND EMPLOYEE AND INDEPENDENT CONTRACTOR COSTS AND BENEFITS. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATING TO BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE PRICE OF THE WORK SPECIFICALLY IN DISPUTE.

11. Statute of Limitations

No claim or cause of action arising out of or relating to the Agreement, whether for breach of contract, breach of warranty, tort (including negligence), or otherwise, may be brought by Customer more than one (1) year after completion of all Work performed by Seller.

12. Cancellation

Customer may cancel any Work upon no less than five (5) days prior written notice to Seller. In the event of cancellation: (i) Customer shall be responsible for any Price payable for Work performed prior to cancellation; (ii) Customer shall be responsible for any parts on order for the cancelled Work that cannot be terminated by Seller or the cost of termination of such order if it can be terminated for a re-stocking or other charge; and (iii) Customer shall re-take delivery of the Vehicle in its "as is" condition at termination, unless Customer agrees to pay Seller its standard rates for re-assembly.

13. Force Majeure

Seller shall not be liable to Customer, nor be deemed to be in default or breach of the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including but not limited to acts of God, epidemics, governmental actions or orders, war, hostilities, terrorist threats or acts, riots or other civil unrest, or labor disputes.

14. Governing Law

The Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Ohio, without reference to conflict of law principles.

15. Exclusive Jurisdiction

Any claim or cause of action arising out of or relating to the Agreement shall be subject to the exclusive jurisdiction of courts of component jurisdiction over Shelby County, Ohio.

16. Severability

In the event any of the terms and conditions of the Agreement are found to be invalid or unenforceable for any reason: (i) such invalidity or unenforceability shall not affect any other term or condition of the Agreement; and (ii) the invalid or unenforceable term or condition shall be deemed modified to the least extent possible to cure its invalidity or unenforceability and retain the intent of the parties to the Agreement.

17. No Set-Off or Recoupment

Customer may not assert set-off or recoupment as against any portion of the Price.

18. No Verbal or Other Representations

Seller makes no other verbal or other representations or warranties about any of the Work not provided in the Agreement, except as provided in writing by an authorized representative of Seller.

19. Entire Agreement

The Agreement constitutes the entire agreement of the parties with respect to the matters contemplated therein, and cannot be modified except in a writing signed by an authorized representative of Seller.

20. Costs

In addition to any other provisions of the Agreement, Customer agrees to pay the reasonable attorneys fees and costs of Seller arising out of or relating to any dispute under the Agreement, if Seller is the prevailing party with respect to such dispute.