Diesel Fuel Technologies, LLC (“DFT”) is in the business of remanufacturing, calibrating, repairing, refurbishing injectors, and selling components (“goods”). These terms and conditions (“Terms”) are incorporated into every transaction between DFT and its customer (“Customer”). These Terms are subject to change by DFT without prior written notice at any time, in DFT’s sole discretion.
Customer agrees to and accepts these Terms by transacting business with DFT, and the Terms become effective on the date Customer places its order with DFT or when Customer ships a good to DFT, whichever is earlier. No terms, conditions or warranties other than those identified herein, and no agreement or understanding, oral or written, in any way purporting to modify these terms and conditions, whether contained in Customer’s purchase order or shipping release forms, or elsewhere, shall be binding on DFT unless hereafter made in writing and signed by DFT’s authorized representative. Customer is hereby notified of DFT’s express rejection of any terms inconsistent with this agreement or to any other terms proposed by Customer in accepting DFT’s quotation. Neither DFT’s subsequent lack of objection to any terms, nor the delivery of goods, shall constitute an agreement by DFT to any other terms.
The Terms constitute the entire agreement between Customer and DFT and supersede any and all prior agreements, communications, and understandings, whether oral or written (including, but not limited to, any prior versions of the Terms). Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party, DFT.
1. Price: Unless otherwise quoted, prices shall be those published and in effect at time of shipment. DFT reserves the right to change its published price at any time and without notice. Any price quoted by DFT is valid for no more than thirty (30) days. DFT reserves the right to adjust pricing at any time due to change in quantities, partial release or destination, unforeseen circumstances, changes in market conditions, or other factors outside of DFT’s control or that were not part of DFT’s quotation. All prices are F.O.B. shipping point with freight costs being collect, prepaid or allowed. All prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Such taxes, where DFT is required by law to collect them, whether designated as sales tax, use tax, gross receipts tax, etc., will be billed to Customer based on the law in effect at the time of delivery unless Customer furnishes DFT with a proper tax exemption certificate. Customer agrees to reimburse DFT for any such taxes that DFT or its suppliers are required to pay, including penalties and interest thereon.
2. Payment: Customer shall pay the invoiced amount within thirty (30) days of the invoice date and without offset or credit unless previously agreed to in writing by DFT. Failure to pay within thirty (30) days of the invoice date shall constitute default and shall subject Customer to, among other penalties, interest on the invoice amount at a rate of two percent (2%) per month or the highest interest permitted by law, together will all costs and expenses, to include DFT’s attorney’s fees and court costs, incurred by DFT in collecting any overdue amount. Payment shall be in United States dollars, only. DFT reserves the right to demand full or partial payment in advance should DFT determine in its sole discretion that Customer’s financial condition may jeopardize Customer’s ability to meet its obligations as stated herein.
3. Shipment & Delivery: All goods are shipped FOB, point of shipment, unless otherwise specified by DFT in writing. Risk of loss transfers to Customer once the goods are tendered by DFT to Customer, Customer’s representative, or common carrier, whichever is earliest. DFT has the sole discretion to pack and ship goods as it sees fit, but will seek to accommodate Customer’s special requests and reserves the right to add any associated costs to the price. Customer shall not charge DFT for any damage or delay to the goods or their shipment, regardless of the cause or DFT’s knowledge thereof. DFT reserves the right to charge Customer for any warehousing, storage, or other charges related to any delay caused by Customer.
4. Cancellation: DFT may at its option and in its sole discretion cancel Customer’s order if Customer is in default on any amount owed to DFT, if Customer is subject to bankruptcy, whether voluntary or involuntary, or if the shipment of goods is impossible within a commercially reasonable time. DFT’s decision to cancel an order shall in no way affect its ability or otherwise prejudice its rights to recover any amount or amounts owed it by Customer, or any other of DFT’s pursuant to these Terms. Customer has the right to cancel any unfulfilled order, subject to payment of DFT’s reasonable expenses related to the order, which shall not exceed the purchase price of the goods but which shall be calculated based on DFT’s costs, expenses, and lost profit.
5. Prototypes: DFT may create a prototype or sample for Customer for Customer’s evaluation and testing. Any prototype or sample created by DFT or provided by DFT to Customer shall remain DFT’s property, is not for sale, shall only be used by Customer according to mutually agreed-upon protocols and processes, and shall be returned at Customer’s expense to DFT immediately following completion of Customer’s evaluation and testing, or upon DFT’s written request. Customer shall provide DFT a copy of any test results, any data generated by the testing, any conclusions or interpretations made from any testing, and will provide DFT with a complete description of the testing conditions. Customer will not disassemble any prototype or sample and will not make any attempt to reverse engineer any prototype or sample.
6. Warranty: DFT warrants its goods against defects in workmanship or materials for a period of one (1) year from the date of installation or eighteen (18) months from the date of purchase, whichever is later. The sole and exclusive remedy for breach of the warranty is expressly limited, at DFT’s sole discretion, to replacement of the defective goods, repair of the goods, or a refund or credit, along with the cost of shipping the defective good. DFT’s warranty does not cover cost or expense beyond the defective good and excludes cost of labor. DFT’s warranty does not cover any alleged failure due, in part or in whole, to a circumstance outside of DFT’s exclusive control. Examples of such a circumstance include negligence, abuse or misuse of the goods, an act of God, force majeure, improper or inadequate maintenance, and the use of contaminated fuel or lubricants. DFT reserves to itself alone the right to make modifications or exceptions to this warranty policy or its claim procedure.
OTHER THAN THE LIMITED WARRANTY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY RESPECTING THE GOODS OR ANY PARTS OR COMPONENTS THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE REMEDY IN CONTRACT, TORT OR UNDER ANY OTHER THEORY AGAINST DFT RESPECTING THE PRODUCT OR ACTIONS ARISING OUT OF THIS AGREEMENT SHALL BE NO MORE THAN THE TOTAL AMOUNT RECEIVED BY DFT FROM CUSTOMER AND NO OTHER REMEDY (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES) SHALL BE AVAILABLE. DFT SHALL HAVE NO FURTHER OBLIGATION OR LIABILITY WITH RESPECT TO THE GOODS OR THEIR SALE, OPERATION AND USE, AND DFT NEITHER ASSUMES NOR AUTHORIZES THE ASSUMPTION OF ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE PRODUCT.
7. Warranty Claim Procedure: A warranty claim with DFT must be initiated within fifteen (15) calendar days of the failure. A warranty claim is initiated by contacting DFT and obtaining a Claim Number and instructions for the return of the good or goods to DFT. The good or goods must be returned along with a copy of the relevant invoice to DFT, at claimant’s expense. Should DFT deny the claim, DFT shall provide a detailed report of its findings and return same with the good or goods to Customer, freight collect. In the event of dispute, DFT will store the good or goods free of charge for up to thirty (30) days.
8. Indemnity & Defense: Customer agrees to defend, indemnify, and hold DFT harmless from any claim, suit, or cause of action arising from its purchase of a good or goods from DFT. Customer agrees that its obligations to defend, indemnify, and hold DFT harmless arise upon notice or presentment of a claim or cause of action or the service of suit, whichever is earlier. Customer further agrees that its obligation to defend, indemnify, and hold DFT harmless does not affect DFT’s right to retain or employ separate counsel of its own choosing and at its own expense. Customer’s obligation to defend, indemnify, and hold DFT harmless does not extend to any of DFT’s fault or negligence as determined by the final judgment of a court of competent jurisdiction. Finally, Customer agrees that it is obligated to cover or reimburse DFT for any reasonable attorney’s fees, court costs, or other expenses incurred by DFT in defending itself against a claim, suit, or cause of action arising from its sale of a good or goods to Customer in the event Customer refuses DFT’s tender thereof or incurred by DFT in enforcing its rights to indemnity and defense under this Section 8.
9. Venue: Customer agrees that the exclusive jurisdiction and venue for any action or dispute arising from or related to this agreement in the state and federal courts located in California.
10. Severability: In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
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