OverlandSprinters Terms and Conditions of Sale
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING OVERLANDSPRINTERS LLC TO PROVIDE PRODUCT OR PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY SELLER WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND CUSTOMER.
Important Information About These Terms and Conditions
The Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either “Terms and Conditions” or this “Agreement.” Customer accepts these Terms and Conditions by making a purchase from or placing an order with Seller or shopping on any Seller Website or otherwise requesting products (the “Products”) or engaging Seller to perform or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by Seller and Customer. These Terms and Conditions supersede any prior statements or representations by Seller or its agents.
THESE TERMS AND CONDITIONS AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN SANTA BARBARA COUNTY, CALIFORNIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Seller under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Title: Risk of Loss
If Customer provides Seller with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for Seller, title to Products and risk of loss or damage during shipment pass from Seller to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Seller to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added).
Orders are not binding upon Seller until accepted by Seller. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Seller as a result of using Customer's carrier account number. Terms of payment are within Seller's sole discretion. In the event of a payment default, Customer will be responsible for all of Seller’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. Customer hereby grants to Seller a security interest in the Products to secure payment in full. Customer authorizes Seller to file a financing statement reflecting such security interest.
Pricing Information; Availability Disclaimer
Seller reserves the right to make adjustments to pricing and Products for reasons including, but not limited to, changing market conditions, design changes, supplier price changes, and errors in advertisements. All orders are subject to Product availability. Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s orders.
Disclaimer of Warranties and Use on Public Highways and Streets
Seller makes no warranties to the Customer and the Customer hereby acknowledges that Seller makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the manufacture, performance, sale, packaging and labelling of the Products which are in force within the Customer’s territory.
Customer further acknowledges and agrees that Seller makes no representations, warranties or assurances that the Products are designed for or suitable for use on public highways, streets, and other roads, and Customer agrees to indemnify Seller in connection with any such use of the Products.
The Product sold by Seller is designed, and intended, only for off-road uses involving the motor vehicle in which it is installed (the “Vehicle”), and not for use on public highways, streets, and other roads. Customer agrees to use the Vehicle only for off-road, otherwise legal purposes in controlled environments. Use of this Product in the Vehicle on public highways, streets, and other roads may violate applicable federal, state, or local laws or regulations. The Customer must review and comply, and is solely responsible for reviewing and complying with, all laws and regulations, in connection with Customer’s installation and use of this Product with the Vehicle. Use of this Product may violate warranties from the manufacturer of the Vehicle or from others. The Customer must review and comply, and is solely responsible for reviewing and complying, with the terms and conditions of any such warranty. Use of this Product may make the Vehicle non-compliant with applicable laws, make the Vehicle capable of generating unsafe driving speeds, exceed stress limits of the engine, transmission, chassis, body, and other components of the Vehicle, destroy or damage mechanical, electrical, structural, or other components of the Vehicle, may require superior driving skills and techniques to handle the Vehicle, may make the Vehicle unsafe, and may lead to personal injury or property damage. The Customer must ensure, and is solely responsible for ensuring, the proper installation of this Product in the Vehicle in a manner compatible with other components of the Vehicle, in accordance with industry standards and in a good and workmanlike manner, and in accordance with applicable law. The Customer must ensure, and is solely responsible for ensuring, the proper, legal, and safe use of the Vehicle. Use of the Product in the Vehicle is at the sole risk and discretion of the Customer. The Customer acknowledges that off-road driving is dangerous and may cause death, other personal injury, or property damage. To the greatest extent provided by applicable law, this Product is sold on an AS IS, WHERE AS, and WITH ALL FAULTS basis, and OverlandSprinters, LLC disclaims any and all warranties of any kind, whether express or implied, relating to this Product, including without limitation any implied warranty of merchantability, any implied warranty of fitness for a particular purpose, or any warranty made by any third party.
To the greatest extent provided by applicable law, the Customer, for himself/herself/itself and his/her/its heirs, personal representatives, successors, and assigns, hereby releases, discharges, indemnifies, and holds harmless OverlandSprinters, LLC and its agents, employees, officers, managers, members, subsidiaries, parents, successors, and assigns (the "Overland Sprinter Parties") from any and against any and all claims, causes of action, damages, injuries, losses, expenses, attorneys fees, and harm of any kind, whether or not foreseeable, directly or indirectly relating in whole or part to the use or installation of this Product in violation of the terms and conditions of this Disclaimer, and applicable law, any use of the Vehicle in violation of the terms and conditions of this Disclaimer and applicable law, and any other use of the Vehicle, regardless of the acts or omissions, whether negligently or otherwise occurring, of any Overland Sprinter Party. To the greatest extent provided by applicable law, each Overland Sprinter Party will not be liable for, and the Customer waives any right to seek against any Overland Sprinter Party, any consequential, indirect, special, statutory, exemplary, punitive, or incidental damages caused by the installation or use of this Product, and the liability of the Overland Sprinter Parties in the aggregate will be limited to the standard retail purchase price of this Product. Installation or other use of this Product constitutes the Customer’s acknowledgement that the Customer has read and understands the warnings, cautions, terms and conditions in this Disclaimer and that the Customer agrees and consents to the terms and conditions of this Disclaimer; OTHERWISE DO NOT INSTALL OR USE THIS PRODUCT.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller's or any of its Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Santa Barbara, California. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
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