FLEETSERV STANDARD
TERMS AND CONDITIONS
- Pricing. (a) Pricing for retrofits, maintenance and for other services requiring parts and installation is based upon standard parts and labor costs. Additional non-standard parts and labor that is required, such as but not limited to obtaining vehicle data, work required by data log results and/or vehicle assessment, custom fabrication and/or space restraints to perform the services, as well as that due to changes in the best available control technology (sometimes referred to as “BACT”) required by applicable law, shall revise the prices stated. Pricing is based on work performed at FleetServ’s facilities and Customer shall be responsible for all costs of delivery of vehicles to such facility and their return transportation unless on-site mobile installation is arranged in writing. (b) Changes requested by Customer in the matters described on the Pro Forma Invoice or Purchaser Order (collectively referred to herein as the “Purchase Order”) between FleetServ and Customer, to which a copy of these terms shall be attached, such as (but not limited to) specifications or delivery/completion date(s), which increase costs shall allow FleetServ to reasonably increase the prices there indicated. (c) Credit card payments are subject to a 3% processing fee. Prices indicated in the Purchase Order as “final” shall be valid for 30 calendar days. (d) Customer shall pay all taxes due as a result of the transaction described in the Purchase Order, such as but not limited to sales, purchase, use, value added or other taxes, which FleetServ is required to pay or collect, provided that FleetServ income taxes are excluded from this provision.
- Payment and Credit. Payment is due in accordance with the terms stated in the Purchase Order; however if no payment terms are stated in the Purchase Order, payment shall be due and payable immediately upon completion of the services. All payments shall be made in U.S. dollars. Late payments shall be subject to a fee of 1.5% of the unpaid balance per month (or if lower, the maximum rate allowed by applicable law) plus applicable collection costs. Customer hereby authorizes FleetServ to make inquiry at any time as to the credit and financial information pertaining to Customer from any source and for any reasonable and legal purpose.
- Cancellation/Delays of Purchase Orders. Cancelled Purchase Orders relating to sale or installation of products will require a cancellation/restocking fee of 20% of the indicated price, but in the case of custom orders of products, cancelled Purchase Orders will require payment of the costs incurred as of the time the notice of cancellation is received plus a 20% cancellation fee. Cancelled Purchase Orders relating to services will require a cancellation fee of 20% of the price there stated. Delays requested by Customer in either products or services which do not involve cancellations will require immediate payment of any increased costs resulting therefrom. All cancellations and delays must be requested by Customer in writing and any agreed changes in the Purchase Order resulting therefrom must be documented in writing.
- Facilities and Delivery of Vehicles; Data Rights. (a) Unless otherwise provided on the Purchase Order, all installation, retrofit, maintenance, repair or other work on vehicles of Customer shall be performed at a FleetServ facility reasonably selected by FleetServ. An appointment shall be requested of FleetServ and upon agreement of the parties as to such appointment time, Customer is responsible for delivery of the applicable vehicle(s) to such facility at the appointment time at its own cost. Such vehicle(s) shall be provided exclusively to FleetServ and shall remain at the FleetServ facility until the Purchase Order work has been completed. Failure of Customer to meet such appointment time shall result in a convenience fee of $100 per hour of delay; failure to provide the vehicle on the appointed day shall result in a fee of $500 and Customer shall be required to request a new appointment time. In the event FleetServ is requested, and agrees, to provide products or services other than at its designated facility, Customer shall pay all additional costs incurred in connection therewith, as well as those sums set forth on the Purchase Order, the time of such additional payment to be as designated by FleetServ. (ii) Customer understands and agrees that FleetServ may install a data logging device on any vehicle serviced hereunder. All data collected is and shall remain the property of FleetServ and may be used exclusively by FleetServ and its assigns.
- Deliveries by FleetServ. FleetServ will endeavor to meet delivery dates, subject to product availability and delays from manufacturers and suppliers and the provisions below for force majeure, but will have no liability whatsoever for delays in delivery for any reason. Any defects, discrepancies or shortages in products shall be promptly reported by Customer to FleetServ. For products ordered for delivery to Customer rather than to be installed by FleetServ, partial shipments are allowed.
- Risk or Loss and Transfer of Title. For products ordered for delivery to Customer rather than to be installed by FleetServ, title and risk of loss shall pass to Customer upon FleetServ’s delivery to a common carrier. FleetServ shall select the carrier and Customer shall designate the location for final delivery and shall pay all delivery and related costs thereof prior to shipment. For products installed or retrofitted on Customer vehicles, title and risk of loss shall pass to Customer upon return of the vehicle to Customer.
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Warranty and Limitations of Liability.
(a) Warranty.
FleetServ warrants for the Warranty Period (defined below) that its installation, retrofit, maintenance, repair and other services shall be performed in a workmanlike and professional manner and such services are free of defects. FleetServ provides no separate product warranty on products sold, installed, retrofitted, repaired or otherwise provided to Customer by FleetServ. All warranties for products furnished by FleetServ are limited to those provided by the manufacturer of such products, and all claims for a breach of warranty must be provided to FleetServ. Alternatively, FleetServ may provide information as to where to make a warranty claim to the manufacturer. FleetServ does not warrant that the products it installs, retrofits, maintains or repairs shall comply with the governing federal, state or local environmental laws for such products. Further, the above warranties do not apply to defects resulting from: (i) improper or inadequate maintenance by Customer; (ii) unauthorized modification of the vehicle, engine or product; (iii) improper use or operation of the product provided by FleetServ; or (iv) a change in vehicle duty cycle or operation. The “Warranty Period” for services rendered by FleetServ in the case of installation of products is equal in time to the product warranty of the product manufacturer. For repair or other services separately rendered without sale of products, the Warranty Period for FleetServ’s services is 6 months from the date of completion of such services as determined by FleetServ. THE EXPRESSWARRANTIES MADE IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF THE TRADE, AND TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
(b) Other responsibilities of Customer and vehicle owner/operator. It is the responsibility of Customer and/or the owner/operator to (i) have the vehicle engine tuned up so that prior to installation, retrofit or other FleetServ services it meets the engine manufacturer’s specifications prior to such services, and (ii) following the rendering of such FleetServ services, (A) keep the vehicle for which services have been performed tuned and maintained; (B) keep the product provided by FleetServ maintained to the manufacturer’s requirements; and (C) meet the maintenance requirements of applicable laws, such as the California Air Resources Board regulations. Without limiting the foregoing, FleetServ is not responsible for expenses related to poor engine maintenance or engine component failure.
(c) Limitations of Liability. THE TOTAL LIABILITY OF FLEETSERV WITH RESPECT TO ANY AND ALL CLAIMS, IRRESPECTIVE OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND/OR PRODUCT LIABILITY), ARISING OUT OF OR INCIDENT TO THIS AGREEMENT OR USE OF ANY OF PRODUCTS OR SERVICES SHALL NOT EXCEED THE PRICE PAID TO FLEETSERV ALLOCABLE TO PRODUCTS OR SERVICES ON WHICH SUCH CLAIM IS BASED. IN NO EVENT WILL FLEETSERV BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, BUSINESS INJURIES OR LOSSES AND LOST PROFITS, ARISING FROM, OR RELATING TO, THIS AGREEMENT OR THE PRODUCTS AND SERVICES PROVIDED FOR HEREIN. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR, AND TO INDEMNIFY, DEFEND AND HOLD FLEETSERV AND ITS SUBSIDIARIES, AFFILIATES OR PARENT COMPANIES AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, HARMLESS FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION, LOSSES, EXPENSES, LIABILITY OR DAMAGES (INCLUDING REASONABLE ATTORNEYS’ AND EXPERTS’ FEES AND COSTS), INCLUDING, WITHOUT LIMITATION, FOR ANY PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE USE OR FAILURE OF THE PRODUCT OR SERVICES PROVIDED HEREUNDER, OR COMPLIANCE WITH ANY AND ALL LAWS (WHETHER STATUTORY, UNDER COMMON LAW OR OTHERWISE), RULES OR REGULATIONS APPLICABLE TO THE USE OF THE SERVICES OR PRODUCTS. - Return policy. In the case of requests for non-warranty returns of products, prior approval and written consent of FleetServ, which may be withheld in its sole discretion, is required before any return of goods can be made and a restocking fee of 20% plus any applicable shipping costs will be required if such return is approved. FleetServ shall have no responsibility to receive or care for goods returned without such consent, and if it elects to accept physical possession, may charge Customer a reasonable fee for storage costs but has no responsibility to care for or for their condition after such acceptance.
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Termination.
(a) Except as specifically provided herein, Purchase Orders placed cannot be cancelled by Customer, nor can delivery of goods or provision of services be deferred or extended by Customer without FleetServ’s written consent. Each party shall have the right to terminate this Agreement for a material default upon the other party’s uncured failure to comply in any material respect with the terms and conditions of this Agreement. The party seeking to so terminate shall give written notice to the other party at the address herein provided of its intention to terminate this Agreement, which notice shall state the default which forms the basis for such termination, and if the defaulting party fails to correct such default (i) within ten days after receipt of the termination notice in the case of failure to make payment hereunder, or (ii) in all other cases of default within thirty days (or if the same cannot reasonably be corrected or remedied within 30 days, if the defaulting party has not commenced curing such default within such 30 days and is not diligently pursuing completion of same) after receipt of the termination notice, then in the case of (i) or (ii) the non-defaulting party may immediately terminate this Agreement. Further, each party shall have the right to immediately terminate this Agreement upon the other party becoming insolvent, bankrupt, or making an assignment, proposal or arrangement for the benefit of its creditors or becoming the subject of liquidation or winding up proceedings; or upon a receiver, trustee, liquidator or custodian being appointed over the undertaking or assets of the other party.
(b) In the event of a termination of this Agreement for whatever reason, the parties will in good faith work together to determine the sums due hereunder and damages in the event of a termination for default, as well as the disposition of undelivered or incomplete products and various other materials and parts relative thereto. Failing resolution of these matters by a written agreement, each party shall have all rights as provided in this Agreement and under applicable law and principles of equity.
(c) Subject to the rights of Customer in the event of a termination for default of FleetServ, FleetServ shall be entitled to receive upon a termination the agreed price for all delivered products and services and all completed products not yet delivered, its costs for all unutilized materials and parts acquired to produce products, and (except in the case of a FleetServ default) anticipated profits relating to the remaining products and services provided for under this Agreement and which have not been assembled or provided as of the date of termination.
(d) The termination or expiration of this Agreement, however caused, shall be without prejudice to (i) rights of a party to receive payment for sums due hereunder; (ii) rights under any provision of this Agreement which expressly or necessarily calls for performance after expiration or termination; and (iii) Sections 7, 8, 9 and 10, all of which reserved provisions shall survive and remain in effect. -
Miscellaneous.
(a) General.
(i) These Standard Terms and Conditions and the Purchase Order to which they are attached, constitutes the entire agreement (the “Agreement”) between the parties with respect to the subject matter hereof and together supersede and replace all prior and contemporaneous understandings, agreements and representations, written, electronic or oral, regarding such subject matter. All amendment, modifications or waiver of this Agreement must be in writing and signed by the parties.
(ii) Neither party may assign or transfer, by operation of law or otherwise, any of its rights or obligations to any third party without the written approval of the other party hereto and any attempted assignment or transfer in violation of the foregoing shall be void and have no force or effect; provided that no such consent will be required in connection with the sale of all or substantially all of the business of the party related to the product and services or in connection with any merger, reorganization or sale of the party, so along as the assignee agrees in writing to fulfill all obligations of the assignor. This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties but, except as otherwise provided, nothing in this Agreement is intended to confer upon or give rights or remedies to any other person or entity; not by way of limitation, no license or other right is granted by FleetServ to any of its confidential or proprietary information. Nothing in this Agreement shall be deemed to create a partnership, agency or joint venture between the parties and neither party shall represent otherwise.
(iii) If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
(iv) Each party represents and warrants that it has all requisite power and authority to enter into this Agreement and carry out and perform its obligations hereunder and that this Agreement constitutes its legal, valid and binding obligation, fully enforceable in accordance with its terms except as limited by applicable bankruptcy and insolvency laws and other like provisions, and general principles of equity.
(v) This Agreement may be executed in counterparts, each of which shall be considered an original, but all of which together will constitute the same instrument upon delivery; facsimile and photo static signatures shall be deemed as effective as any original signatures. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
(b) Excused Delays. FleetServ shall not be liable to the other for delays or failures in performance resulting from causes beyond its reasonable control, including, but not limited to, acts of God, labor strikes, disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties or other acts of force majeure.
(c) Notices. All notices and other communications given or made pursuant to this Agreement (each, a “Notice”) shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified; (ii) 1 business day after being delivered by facsimile or e-mail (with receipt of appropriate confirmation); (iii) 5 days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) 1 business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All Notices shall be sent to the respective parties at their address, email address or facsimile number indicated in the Purchase Order, or to such other address, email address, or facsimile number, as subsequently modified by Notice given in accordance with this provision.
(d) Remedies and Governing Law. The parties’ rights and remedies under this Agreement or which arise by operation of law or principles of equity are cumulative and not alternative or exclusive of, or a waiver of, any rights or remedies which a party might otherwise have. This Agreement shall be governed by and construed according to the laws, from time to time in effect of the State of California, excluding any conflict of law principles. To the fullest extent permitted by law, each party hereby unconditionally and irrevocable waives any claim to assert that the law of any other jurisdiction governs this Agreement. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in any Federal or state court in the State of California, and each party waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, including any defense of improper venue, forum non conveniens or lack of personal jurisdiction and hereby irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.