TERMS AND CONDITIONS
These Terms and Conditions, together with the estimate/quote (the "Quote") and/or invoice ("Invoice") attached to these Terms and Conditions, are hereinafter collectively referred to as this "Agreement" and shall constitute the entire agreement between the customer ("Customer") identified on the Quote and/or Invoice and B5 Technologies, LLC dba Kustom Truck ("B5") and supersede any previous agreement or understanding (oral or written) between the parties with respect to the subject matter of this Agreement. No prior inconsistent course of dealing, course of performance, or usage of trade, if any, constitutes a waiver of, or serves to explain or interpret, the Terms and Conditions set forth in this Agreement. Electronic transactions between Customer and B5 will be solely governed by the Terms and Conditions of this Agreement, and any terms and conditions on Customer's website or other internet site will be null and void and of no legal effect on B5. In the event Customer delivers, references, incorporates by reference, or produces any purchase order or document, any terms and conditions related thereto shall be null and void and of no legal effect on B5.
1. SCOPE OF SERVICES: B5 shall supply part(s) and/or component(s) and/or engine(s) ("Goods"), if applicable, in accordance with the specifications in the Quote and/or Invoice. No additional goods or services are included in this Agreement unless agreed upon by the parties in writing, or otherwise, as applicable.
2. INVOICING AND PAYMENT: Unless otherwise agreed to by the parties in writing and subject to credit approval by B5, payments are due thirty (30) days from the date of Invoice. If Customer does not have approved credit with B5, as solely determined by B5, payments are due in advance or at the time of supply of the Goods. If payment is not received when due, in addition to any rights B5 may have at law, B5 may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum amount allowed by law. Customer agrees to pay all B5's costs and expenses (including all reasonable attorneys' fees) related to B5's enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by B5.
3. TAXES; EXEMPTIONS: The Invoice includes all applicable local, state, or federal sales and/or use or similar taxes which B5 is required by applicable laws to collect from Customer under this Agreement. Customer must provide a valid tax exemption certificate or direct payment certificate prior to shipment of the Goods, or such taxes will be included in the Invoice.
4. DELIVERY; TITLE AND RISK OF LOSS: Unless otherwise agreed in writing by the parties, any Goods supplied under this Agreement shall be delivered FOB Origin, freight prepaid to the first destination. If agreed, any charges for third party freight are subject to adjustment to reflect any change in price at time of shipment. Unless otherwise agreed to, packaging method, shipping documents and manner, route and carrier and delivery shall be as B5 deems appropriate. All shipments are made within normal business hours, Monday through Friday. Unless otherwise agreed in writing by the parties, title and risk of loss for any Goods sold under this Agreement shall pass to Customer upon delivery of Goods by B5 to freight carrier or to Customer at pickup at B5's facility.
5. DELAYS: Any delivery, shipping, installation, or performance dates indicated in this Agreement are estimated and not guaranteed. Further, delivery time is subject to confirmation at time of order. B5 shall not be liable to Customer or any third party for any loss, damage, or expense suffered by Customer or third party due to any delay in delivery, shipping, installation, or performance, however occasioned, including any delays in performance that result directly or indirectly from acts of Customer or causes beyond B5's control, including but not limited to acts of God, accidents, fire, explosions, flood, unusual weather conditions, acts of government authority, or labor disputes.
6. LIMITED WARRANTIES:
a. New Goods: New Goods purchased or supplied under this Agreement are governed by the express written manufacturers' warranty. No other warranty for Goods supplied under this Agreement is provided under this Agreement.
b. Used Goods: Used Goods are sold "as is, where is" unless exception is made in writing between B5 and Customer. Customer agrees to inspect all used Goods before completing the purchase.
c. THE REMEDIES PROVIDED IN THE LIMITED WARRANTIES AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY B5 TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, B5 EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY.
7. INDEMNIFICATION: Customer shall indemnify, defend and hold harmless B5 from and against any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys' fees, brought against or incurred by B5 related to or arising out of this Agreement or the Goods supplied under this Agreement (collectively, the "Claims"), where such Claims were caused or contributed, in whole or in part, by the acts, omissions, fault or negligence of the Customer. Customer shall present any Claims covered by this indemnity, including any tenders for defense and indemnity by B5 to its insurance carrier unless B5 directs that the defense will be handled by B5's legal counsel at Customer's expense.
8. LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL B5, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES CAUSED BY DELAY) IN ANY WAY RELATED TO OR ARISING FROM B5'S SUPPLY OF GOODS OR SERVICES UNDER THIS AGREEMENT. IN NO EVENT SHALL B5'S LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF GOODS AND SERVICES SUPPLIED BY B5 UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST B5 FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN EVEN IF THE EXCLUSIVE REMEDY IN SECTION 6 IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. GOVERNING LAW AND JURISDICTION: This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Oregon without giving effect to any choice or conflict of law provision. The parties agree that the court of the State of Oregon shall have exclusive jurisdiction to settle any dispute or claim arising in connection with this Agreement.
10. ASSIGNMENT: This Agreement is binding on the parties and their successors and assigns. Customer shall not assign this Agreement without the prior written consent of B5.
11. CANCELLATION: Orders placed with and accepted by B5 may not be cancelled except with B5's prior written consent. B5 may charge Customer a cancellation charge in accordance with current B5 policy which is available upon request, in addition to the actual, non-recoverable costs incurred by B5.
12. REFUNDS/CREDITS: Goods ordered and delivered by B5 under this Agreement are not returnable unless agreed to by B5. B5 may, at its sole discretion, agree to accept Goods for return and provide credit where Goods are in new and saleable condition and presented with a copy of the original invoice. Credits for returns will be subject to up to a 15% handling/restocking charge and are limited to eligible items purchased from B5.
13. INTELLECTUAL PROPERTY: Any intellectual property rights created by either party, whether independently or jointly, in the course of the performance of this Agreement or otherwise related to B5 pre-existing intellectual property or subject matter related thereto, shall be B5's property. Customer agrees to assign, and does hereby assign, all right, title, and interest to such intellectual property to B5. Any B5 pre-existing intellectual property shall remain B5's property. Nothing in this Agreement shall be deemed to have given Customer a license or any other rights to use any of the intellectual property rights of B5.
14. COMPLIANCE WITH LAWS: Customer shall comply with all laws applicable to its activities under this Agreement, including without limitation, any and all applicable local, state, and federal laws and regulations in effect. It is the intention of B5 to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Customer shall comply with all such applicable laws. Customer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold B5 harmless from and against any and all fines, penalties, claims, damages, liabilities, judgments, costs, fees, and expenses incurred by B5 or its affiliates as a result of Customer's breach.
15. CONFIDENTIALITY: Each party shall keep confidential any information received from the other that is not generally known to the public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b) financial information, pricing, and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision by its employees and agents.
16. MISCELLANEOUS: All notices under this Agreement shall be in writing and be delivered personally, mailed via first class certified or registered mail, or sent by a nationally recognized express courier service to the addresses set forth in the Quote and/or Invoice. No amendment of this Agreement shall be valid unless it is writing and signed by the parties hereto. Failure of either party to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter or the enforceability of the Agreement generally, nor shall the waiver by a party of a breach of any of the provisions hereof constitute a waiver of any succeeding breach. Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof. These terms are exclusive and constitute entire agreement. Customer acknowledges that the provisions were freely negotiated and bargained for and Customer has agreed to purchase of the Goods pursuant to these terms and conditions. Acceptance of this Agreement is expressly conditioned on Customer's assent to all such terms and conditions. Neither party has relied on any statement, representation, agreement, understanding, or promise made by the other except as expressly set out in this Agreement.