American Tire Distributors, Inc.

Terms & Conditions of Sale

Applicability. Each American Tire Distributors, Inc. (“Distributor”) quotation or ATD Online part/price listing is an offer (“Offer”) to sell the applicable tires, wheels, and other products (collectively and separately the “Products”) to the applicant/dealer identified above in the Legal Business Name field above (“Dealer”) and incorporates by this reference these terms and conditions of sale (“Terms of Sale”). These Terms of Sale create a contract for distribution, and each of Distributor’s Offers shall be deemed accepted by Dealer upon Distributor’s receipt of a purchase order, a signed Quotation, an online or phone order with respect to the Products, each of which shall also be a separate contract governed by and incorporating these Terms of Sale by this reference (“Order”). Each Order is expressly limited to the products, prices in question and these Terms of Sale. Distributor expressly rejects any terms and conditions contained in Dealer’s forms that are additional to or different from those set forth in Distributor’s Offer or in these Terms of Sale.
Prices and Taxes. Prices are those in effect when Distributor confirms an Order. Distributor is free to reject any Order in its sole discretion. Dealer must pay or promptly reimburse Distributor for any sales, use or any other local, state, provincial or federal taxes arising from the sale or delivery of the Products or provide an applicable exemption certificate. All prices are subject to change or withdrawal by Distributor without notice.
Payment. Without a credit limit from Distributor, the default payment terms are payment in advance or payment on delivery. Credit cards may be used upon approval for payment online, at the distribution center or at the point of delivery. Credit card surcharges of a maximum of two and one quarter percent (2.25%) may apply where permitted by applicable law not to exceed three percent (3%) of the purchase. A surcharge is assessed by Distributor only on credit card transactions and will not be greater than Distributor’s merchant discount rate for the applicable card brand used for payment. Dealer represents and warrants that all payments by credit card will be made with a commercial or business payment method and no payment method in the name of a consumer or a consumer credit card shall be used. If a credit limit is offered to Dealer by Distributor and is in effect, the payment terms for Orders are as follows: for Distributor invoices dated through the 25th of the month, payment is due on the 10th of the following month. For example, for an Order that occurs and is invoiced on the 5th of January, payment will be due on the 10th of February. Any special payment terms extending payment beyond what is referenced herein, must appear on the affected Distributor invoice. Notwithstanding this provision or any terms listed on an invoice, outstanding balances must be kept below the applicable credit limit at all times. The provision of credit to Dealer and the use of credit cards or checks by Dealer is subject to change or termination at Distributor’s sole reasonable discretion. Past due amounts owed by Dealer shall accrue interest at a rate equal to the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum rate permitted by applicable law, from due date until paid, plus Distributor’s reasonable costs of collection, including, but not limited to, third party collection costs, reasonable attorneys’ fees and court costs. In all events, time shall be of the essence with regard to Dealer’s payment obligations to Distributor hereunder. In addition, because returned checks or other items incur a cost to Distributor from its bank, a liquidated charge of up to (a) $35.00 or (b) the maximum amount permitted by applicable law, if less, will be charged to the Dealer for each nonsufficient funds, or NSF, item. Repeated NSF items are one of the reasons that Dealer may lose access to credit provided by Distributor. In addition to Distributor’s right to adjust a dealer’s credit in Distributor’s sole reasonable discretion, Distributor automatically moves dealers who have three (3) or more returned items within a twelve month period to cash only. Similarly, because disputed credit card charges incur a cost to Distributor from its credit card processor, a dispute processing charge of up to (a) $40.00 or (b) the maximum amount permitted by applicable law, if less, will be charged to the Dealer for each disputed payment.
Billing Errors. Errors in billing or credit memos should be reported, as soon as they are discovered, to the distribution center and/or corporate office if there is a disagreement with the account manager or distribution center. Errors or disputes must be reported in writing within sixty (60) days from their occurrence, after this point all amounts outstanding are agreed to be valid.
Product Returns and Warranty Assistance.

a. Distributor as Reseller. Dealer acknowledges and agrees that Distributor is only a wholesale distributor of the Products and that the only warranties applicable to the Products are those warranties expressly provided by the manufacturer of the Products (the “Manufacturer”). Unless expressly agreed in writing, Distributor does not provide warranty or road hazard coverage other than what is provided by the Manufacturer.
b. Manufacturer Warranties
. Manufacturers generally provide their warranties to the end consumer. For these purposes, the Distributor shall pass through to Dealer the manufacturer’s warranties for each Product purchased. Distributor furthers agrees to reasonably facilitate the Dealer’s submission of Products for warranty adjustment review as an optional service. If Dealer’s warranty adjustment submissions are out of proportion with their purchase activity, then processing of warranty claims by the Distributor may be subject to additional fees. Dealer acknowledges that it is familiar with and has access to the manufacturer warranties and related Product installation and Product registration requirements.
c. Returns. Product returns (both new product returns and warranty returns) require pre-authorization from Distributor via a returned material authorization (“RMA”). Once the products are returned to the appropriate location, the Products will be reviewed to determine their eligibility for credit (e.g., confirmation that new products are still new and unused, confirmation that the product meets the manufacturers adjustment policy for credit, and the amount of the credit and any other applicable requirements are met). New Product returns may be subject to Distributor’s applicable restocking fee(s).
Distributor Warranty and Disclaimers. Distributor warrants that it has the right to enter into this Agreement and deliver the Products to Dealer under this Agreement. Dealer is solely responsible for determining the fitness and suitability of Products for the use contemplated by Dealer. Dealer shall ensure that (a) the Products are used only for the purposes and in the manner for which they were designed and supplied, (b) all persons likely to use or come into contact with the Products receive appropriate training and copies of applicable instructions and documentation supplied by the Manufacturer, (c) all third parties who use or may be affected by or rely upon the Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (d) any warning notices displayed on the Products are not removed or obscured. Dealer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other Products or components, and (e) All warranty claims against the Manufacturer to be processed by Distributor must be received by Distributor on or before the end of the applicable warranty period. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE DISTRIBUTOR’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCTS, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND FROM DISTRIBUTOR, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Dealer.
Delivery, Shipment, Title and Risk of Loss. The delivery location (the “Delivery Location”) shall be selected by the Dealer. Additional charges may apply for specific locations outside of normally serviced routes. Unless otherwise expressly agreed by the parties in writing, Distributor shall select the method of shipment and the carrier for the Products. Domestic shipments by Distributor will be FOB, Delivery Location, and international shipments will be EXW, INCOTERMS 2010, Delivery Location. If shipment of Products is postponed or delayed by Dealer for any reason, including a Force Majeure Event (See Section 12), Dealer is responsible for demurrage and/or detention charges. In such a situation, Distributor may move Products to storage for the account of and at the risk of Dealer and the Products will be deemed delivered. Title to the Products will pass from Distributor to Dealer upon full payment for the Products.
a. Risk of Loss: Dealer Pick Up or Dealer Carrier Transport. Where Dealer or their agent is picking the Products up at the Distributor’s location or the Products are being picked up by a carrier hired by Dealer, risk of loss will pass to the Dealer upon the Dealer’s, their agent’s or their carrier’s receipt of the Products at the Distributor’s Location.
b. Risk of Loss: Delivery by Distributor: If Distributor is delivering the Products either itself or via a third party carrier hired by Distributor, to a Delivery Location that is not the Distributor’s Location, risk of loss shall transfer to the Dealer upon delivery to the Delivery Location.
Receipt. Dealer or its authorized representatives will accept and acknowledge receipt of the Products at the time of delivery, including signing either electronically or in writing, confirmation of receipt (“Receipt Confirmation”). Unless expressly agreed in writing, any Dealer representative at the Delivery Location may confirm receipt. Should the Delivery Location be a third party location, any such third party Location may confirm receipt. In addition to the Receipt Confirmation, Distributor maintains other records to verify its delivery of the Products and will offer the Dealer at delivery with a “Transaction Summary” setting forth the details of the Order and delivery. Dealer acknowledges and agrees that Distributor’s record of delivery of the Products at the Delivery Location before or after Dealer’s normal operating hours or where Dealer has failed to provide an authorized representative to accept and acknowledge receipt of such Products shall be conclusive evidence of Distributor’s delivery. Distributor is not responsible for any missing, damaged or stolen Products after the time of delivery by Distributor.
Inspection and Acceptance. Dealer shall inspect Products within three (3) business days of receipt of such Products (“Inspection Period”). If such Products are not the products ordered or are not in conformance with the applicable manufacturer specifications, Dealer shall give notice stating with specificity all observed nonconformities in the applicable Product(s) to Distributor prior to expiration of the Inspection Period (“Inspection Notice”). Dealer will be deemed to have accepted the Products unless it provides Distributor with written notice of any Nonconforming Products (stating with specificity all observed nonconformities) within the Inspection Period and furnishing such other written evidence or other documentation as may be reasonably required by Distributor. All nonconformities that are not so specified will be deemed waived by Dealer, such Products shall be deemed to have been accepted by Dealer, and no attempted revocation of acceptance will be effective. Such waiver or expiration of the Inspection Period shall not limit Dealer’s ability to submit a product for adjustment via the manufacturer warranty. If Dealer timely provides Distributor with Inspection Notice, Distributor shall determine, in its reasonable discretion, whether the Products are nonconforming either via inspection at Dealer’s facility or by providing an RMA and picking-up or otherwise arranging for return shipment by a third-party carrier. If Distributor determines that such Products are nonconforming, Distributor shall, in its sole discretion, either: (a) replace such nonconforming Products with conforming Products; or (b) refund to Dealer such amount paid by Dealer to Distributor for such nonconforming Products returned by Dealer to Distributor. Distributor will pick-up or arrange for shipment by a third-party carrier all nonconforming Products still in Dealer’s possession. If Distributor exercises its option to replace nonconforming Products, Distributor shall ship to the Delivery Location, at Distributor’s expense and risk of loss, the replacement Products. THE REMEDIES SET FORTH IN THIS SECTION 9 ARE DEALER’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING GOODS, SUBJECT TO DEALER’S RIGHTS AGAINST THE MANUFACTURER UNDER SECTION 5 WITH RESPECT TO ANY SUCH PRODUCTS FOR WHICH DEALER HAS ACCEPTED DELIVERY UNDER THIS SECTION 9.
Product Security Interest. Dealer grants Distributor a security interest in all equipment or inventory sold, delivered or provided to Dealer by Distributor including all proceeds thereof until such time that both (a) all amounts due to Distributor from dealer have been paid in full with deposited, finally settled and credited funds and (b) the distributor relationship between the parties is terminated. Dealer agrees that Distributor is authorized to file related financing statements and take such other action required to perfect Distributor’s purchase money security interest.
Limitation of Remedy and Liability. Distributor’s total liability under the Agreement, whether in law, equity, contract, infringement, negligence, strict liability or other otherwise, shall not exceed the price paid by Dealer under the Agreement for the Product giving rise to the claim. Under no circumstances shall Distributor be liable for special, incidental, indirect, punitive or consequential damages for any reason. “Consequential damages” includes, without limitation, loss of anticipated profits; business interruption; loss of use, revenue, reputation or data; costs incurred, including without limitation, costs for capital, fuel or power; loss or damage to property or equipment; and environmental clean-up. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Dealer. Any action arising under or relating to the Agreement, (whether based in law, equity, contract, infringement, negligence, strict liability, other tort or otherwise), must be commenced with one year after the date of delivery of Products. Distributor has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Dealer and Distributor and form a basis of this bargain between the parties.
Indemnification. Dealer shall indemnify and hold Distributor harmless from and against any and all losses, claims, damages, liabilities, regulatory or civil actions, costs or expenses (including any attorneys’ fees or other expenses reasonably incurred by Distributor its officers, employees and agents in connection with investigating any claim and defending any action and any amounts paid in settlement or compromise) that arise out of or are based upon any breach by Dealer, its officers, employees or agents of any term, condition, warranty, representation or any other portion of this Agreement.
Excused of Performance. Acts of God; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes or any other events or causes beyond Distributor’s reasonable control or other cause beyond such Party’s reasonable control are deemed “Force Majeure Events”. If Distributor determines that its ability to fulfill the total demand for Products is hindered, limited or made impracticable due to a Force Majeure Event, Distributor may delay delivery of Products and allocate its available supply of Products (without obligation to acquire other supplies of any such Products) among its customers on such basis as Distributor determines to be equitable, without liability or default under the applicable agreement. Payment obligations of either party are not subject to Force Majeure Events.
Compliance, Export Control. Parties agree to comply with all applicable laws, including, without limitation the TREAD Act and applicable environmental laws. Certain Products may be subject to export controls under the laws of the United States of America and other countries. In addition, other laws may be applicable to tires or other products sold by Distributor, which may restrict their sale in other countries, including, without limitation, testing and labeling requirements of such countries. Dealer must comply with all such Laws and not export, re-export or transfer, directly or indirectly, any such Product except in compliance with all applicable laws.
Electronic Signature Terms. Dealer consents to do business and receive all communications, receipts and notices from Distributor in connection with this Agreement in paper or electronic form. As Distributor’s option, Dealer consents to completing a receipt confirmation electronically via a handheld device, or some other device. Distributor may send a copy of the Receipt Confirmation to Dealer at the email address provided by Dealer. If Dealer gives Distributor an incorrect email address or fails to update or correct Dealer’s email address, an electronic communication or notice will be deemed provided to Dealer if Distributor uses the email address in Distributor’s records for the electronic communication or notice. Dealer is advised to retain a copy of this Agreement, the Receipt Confirmation and all electronic communications and notices. Copies are available upon request. In addition, Dealer agrees to have the following hardware and software: (a) a computer, mobile device, tablet or similar device with an internet connection; (b) a current web browser that includes at least 128-bit encryption with cookies enabled; (c) a current version of a software program that can open and display PDF files (d) a valid email address with email software to communicate with Distributor electronically; and, (e) an installed printer or sufficient storage space to save, store, print or otherwise retain electronic communications and notices.
Governing Law; Venue. These Terms of Sale are to be construed according to the laws of the United States of America and the State of North Carolina, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any choice of law provisions that require application of any other law, and B) each party hereby agrees that the forum and venue for any legal or equitable action or proceeding arising out of, or in connection with, such Contract will lie in the United States District Court for the Western District of North Carolina or the corresponding state courts governing Mecklenburg County, North Carolina, as applicable and each party specifically waives any and all objections to such jurisdiction and venue.
General Provisions. The Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. Distributor’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing the Agreement, and no modification or objection shall be caused by Distributor’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing the Agreement. Nothing in the Agreement confers upon any person other than Distributor and Dealer any right or remedy under or by reason of this Agreement. All typographical or clerical errors made by Distributor in any quotation, acknowledgment or publication are subject to correction.