Legal • Motorhead New York, LLC
22154 US-11, Watertown, NY 13601
This Repair Order ("Order"), including the front of this Order and these terms and conditions, constitute a contract for the Service Work for the Vehicle as described on the front side hereof, between Motorhead NEW YORK's Auto Repair & Sales identified on the front side hereof ("Motorhead NEW YORK") and the customer identified on the front side hereof ("Customer"). This Order is binding upon Motorhead NEW YORK and Customer upon Customer's execution of the front side hereof or the commencement of the Service Work or any part thereof.
Contents
None of the terms and conditions contained in this Order may be added to, modified, superseded or otherwise altered except by a written instrument signed by a corporate officer or authorized manager of Motorhead NEW YORK and delivered to Customer by Motorhead NEW YORK. All Service Work shall be made only upon the terms and conditions herein, regardless of any terms and conditions that may be contained in any purchase order or other form of communication from Customer.
Motorhead NEW YORK shall perform the Service Work in a reasonable manner; provided, however, Motorhead NEW YORK makes no warranty or guarantee of a result. Customer shall notify Motorhead NEW YORK of any claim that Motorhead NEW YORK did not reasonably perform the Service Work within ten (10) days after the discovery of same and in no event later than thirty (30) days after the performance of the Service Work.
Within a reasonable time after notice from Customer, Motorhead NEW YORK, at its sole option, shall correct the Service Work which was not reasonably performed. If Motorhead NEW YORK is unable to correct such Service Work, Motorhead NEW YORK, at its sole option, may refund to the Customer the amount Customer paid under this Order. These remedies shall be Customer's exclusive remedies for any breach of this Order by Motorhead NEW YORK.
Motorhead NEW YORK shall not be responsible to correct: (i) any condition which reasonably could have been prevented or minimized by Customer; (ii) any condition constituting normal wear and tear; (iii) any condition caused by acts of God; (iv) any condition caused by abuse or misuse; or (v) any condition not caused by Motorhead NEW YORK's failure to reasonably perform the Service Work.
There are NO WARRANTIES, express or implied, made by Motorhead NEW YORK or the manufacturer of any parts or other goods incorporated in the Service Work, except for the manufacturer's written warranty applicable to such parts or goods. Customer acknowledges that Motorhead NEW YORK has not in any manner adopted the manufacturer's warranty as a warranty of Motorhead NEW YORK, and Customer shall look solely to the manufacturer to perform or satisfy any obligation under the manufacturer's warranty.
Limited Warranty on Services: Motorhead NEW YORK warrants that the Services will be performed in a good and workmanlike manner ("Services Warranty"). The Services Warranty is valid for a period of 90 days from the date the Services are performed. The Customer's sole and exclusive remedy, and Motorhead NEW YORK's entire liability under the Services Warranty, is the repair of any nonconforming portion of the Services. The Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser.
Parts — Manufacturer Warranties Only: Any warranties on any Parts are limited only to those written warranties provided by the applicable Part's manufacturer. Except for such warranties made by manufacturers, the parts are sold without any other warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, each of which is expressly disclaimed.
Customer shall pay Motorhead NEW YORK for the Service Work at Motorhead NEW YORK's current standard rates, which shall be due in cash upon the tender by Motorhead NEW YORK to Customer of the Vehicle upon which the Service Work is performed. If payment is not made in accordance with the foregoing terms, Motorhead NEW YORK shall (i) be entitled to charge Customer interest at the rate of one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, effective from the date payment becomes due, and (ii) be entitled to withhold delivery of the Vehicle until payment is made.
Security: Customer hereby grants Motorhead NEW YORK a security interest in the Vehicle together with any replacements, additions or accessories thereto or the proceeds from the sale thereof (the "Collateral") to secure the amounts due Motorhead NEW YORK under this Order and all other liabilities, debts and duties of Customer to Motorhead NEW YORK now existing or hereinafter incurred.
Customer shall defend, indemnify and hold harmless Motorhead NEW YORK, its agents, representatives and employees from and against claims, liabilities, causes of action, costs and expenses, including but not limited to reasonable attorneys' fees and experts' fees arising out of the use, operation and maintenance of the Vehicle — regardless of whether such claims were in part caused by the fault or negligence of Motorhead NEW YORK or its agents, representatives or employees. The indemnity obligations of Customer shall survive payment of this Order.
Unless otherwise agreed to in a writing signed by Customer and Motorhead NEW YORK, Customer shall be solely responsible for the payment of all sales, use, consumer and other taxes arising out of this Order mandated by any applicable federal, state and local laws, codes, ordinances, rules and regulations, whether currently in effect or subsequently enacted.
Motorhead NEW YORK shall not be liable for failure to deliver or delay in performance of the Service Work where such failure or delay is due, in whole or in part, to any cause other than the gross negligence of Motorhead NEW YORK. Motorhead NEW YORK will not have any liability for any loss caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war, terrorist act or civil disturbance, delay of carriers, failure of normal sources of supply, act of government, or any other cause beyond the reasonable control of Motorhead NEW YORK, including without limitation any loss or damage to the Vehicle or any articles or property left in the Vehicle.
It shall be a condition precedent to any liability of Motorhead NEW YORK that Customer provide written notice of any claim, controversy, or alleged breach of this Order within the time provided in Section 2, and that Customer provide Motorhead NEW YORK with a reasonable opportunity to cure. Notwithstanding the foregoing, Customer must provide Motorhead NEW YORK with notice of any claim and demand for arbitration within twelve (12) months of discovery or accrual of the same, whichever occurs first.
Notice shall be deemed validly given: (i) if delivered in person to the party entitled to receive such notice; (ii) two (2) days after being sent by registered or certified mail, postage prepaid to the address indicated on the front side of this Order; or (iii) one (1) day after being sent via overnight mail through a reputable overnight delivery company.
Any controversy or claim arising out of or relating to this Order shall be decided by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A demand for arbitration shall be made within a reasonable time after a controversy or claim has arisen and in no event shall be made after the date when institution of legal or equitable proceedings based upon such claim would be barred by the applicable statute of limitations.
The arbitrator(s) shall have no authority to award punitive or other damages not measured by the prevailing party's actual damages. The place of arbitration shall be in the American Arbitration Association's office closest to the location of Motorhead NEW YORK. The parties shall be entitled to discover all documents and information reasonably necessary for a full understanding of any relevant issue raised in the arbitration. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in any court having jurisdiction thereof.
Should Motorhead NEW YORK be required to institute any action, including any arbitration proceeding, to enforce any of its rights set forth in this Order, Motorhead NEW YORK shall be entitled to reimbursement from Customer for all expenses, including but not limited to reasonable attorneys' and experts' fees, and costs incurred in connection with such action. In the event Customer institutes any action against Motorhead NEW YORK and Motorhead NEW YORK prevails, Customer shall pay Motorhead NEW YORK the amount of all such expenses.
Motorhead NEW YORK's charges for labor are not based on actual mechanic's time but are established by multiplying Motorhead NEW YORK's labor rate by industry time allowances or Motorhead NEW YORK's own judgment of the time to be charged. If an estimate is provided, Customer will not be charged more than the estimated price approved by Customer.
If Motorhead NEW YORK discovers that different or additional repairs are indicated, Customer will be contacted for authorization. Authorization may be given by Customer orally or in written form, including email. In the event that Customer authorizes commencement but does not authorize completion of a repair or service, a charge will be imposed for disassembly, reassembly, or partially completed work. Customer agrees that Motorhead NEW YORK employees may operate Customer's vehicle for purposes of facilitating repairs, including diagnosing, road testing, and sublet services.
Customer acknowledges that estimates for non-warranty repairs may include parts not made by the original manufacturer. Parts used in the non-warranty repair of Customer's vehicle by other than the original manufacturer are required to be at least equal in like kind and quality in terms of fit, quality and performance to the original manufacturer parts they are replacing.
Motorhead NEW YORK is not responsible for loss of or damage to the vehicle due to or arising from fire, weather, theft or any other cause except the sole negligence of Motorhead NEW YORK. Motorhead NEW YORK is not responsible for any loss or damage to articles of personal property that have been left in the vehicle, or for loss or damage to bodies, trailers or special equipment, including any cargo, materials or supplies carried on or in such bodies, trailers or special equipment, whatever the cause.
All charges for repairs including labor and materials furnished are due and payable simultaneously with the delivery of the described vehicle or prior to delivery upon the expiration of three (3) days after notice to Customer that the repairs have been completed. If the vehicle is not picked up within three (3) days after such notice is given, Motorhead NEW YORK may charge daily storage fees at rates that are ordinary and customary for the area, not to exceed $50.00 per day or the maximum rate allowable by applicable law.
In addition to any and all other legal remedies available to Motorhead NEW YORK, Customer authorizes and acknowledges an express mechanic's lien in favor of Motorhead NEW YORK on the vehicle for all charges for repairs, including labor and parts, storage and/or towing. If payment in full is not received within ten (10) days after notification that repairs are completed, Motorhead NEW YORK may begin lien sale proceedings and sell the vehicle at public auction, and/or refer such account to its attorneys or a collection agency for collection.
This Order may not be changed, altered, or amended in any way except in writing signed by Motorhead NEW YORK and Customer. No waiver by either party of a breach or default hereunder will be deemed a waiver of a subsequent breach or default of a like or similar nature. No waiver of any of these terms and conditions will be effective against Motorhead NEW YORK unless in writing signed by a corporate officer or authorized manager of Motorhead NEW YORK.
If any of these terms or conditions is unenforceable, such term or condition will be limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain in full force and effect. This Order is deemed to have been entered into in the State of New York and will be governed by the laws of the State of New York, without giving effect to the choice of laws provision thereof.
Customer may not assign this Order without proper written consent of Motorhead NEW YORK. These terms and conditions are for the exclusive benefit of Motorhead NEW YORK and Customer, and no other person will have rights hereunder. This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior agreements and understandings, oral or written, relating to the subject matter hereof.
In any action where the Customer has a right to recover reasonable attorneys' fees and costs in the event it prevails, Customer agrees that Motorhead NEW YORK shall have the same right to recover reasonable attorneys' fees and costs in the event that Motorhead NEW YORK prevails.
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