Virginia Diesel & Truck Repair, Inc.
doing business as Jacobs Diesel
Terms and Conditions for the Sale of Goods
Acceptance
The payment of the deposit and/or the full sales price by the Buyer (as defined below) stated in the Quotation or Quote constitutes acknowledgment that it has read, understands, and accepts without reservation these Terms and Conditions for the Sale of Goods, which are published on Seller’s (as defined below) website at www.jacobsdiesel.com/terms. Buyer acknowledges that Buyer’s acceptance of all of these Terms and Conditions is consideration, is as important to Seller as payment by Buyer of the sale price stated in the Quotation or Quote, and is an essential term of the sale of Goods.
Applicability
These terms and conditions of sale (these “Terms”) are the only terms governing the sale of Goods by Virginia Diesel & Truck Repair, Inc., which does business as Jacobs Diesel (“Seller”), to the Buyer identified on the accompanying Quotation or Quote (“Buyer”). The Goods are described in the Quotation or Quote under “Description.” The Quotation or Quote is adopted herein by reference. Notwithstanding anything herein to the contrary, if a written contract signed by all parties to the contract is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
The accompanying Quotation (the “Quotation” or “Quote”) and these Terms (collectively, this “Agreement”) comprise the entire Agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of sale regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Delivery; Title and Risk of Loss
Delivery will be made FOB Seller’s facility, Evington, Virginia (the “Delivery Point”).
Seller shall deliver the Goods using Seller’s standard methods for packing and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Title and risk of loss passes to Buyer upon shipment of the Goods at Seller’s facility.
Seller is not obligated to remove any parts from, or install the Goods or any parts in, Buyer’s equipment, boat, or vessel.
Buyer shall purchase the Goods from Seller at the price set forth on the Quotation or Quote (the “Price”).
The Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any government authority on any amounts payaable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Payments of the Price shall be made pursuant to the terms of the Quotation or Quote.
In the event that any check given by Buyer to Seller is returned, Buyer shall be responsible for paying in collected funds to Seller, within five (5) business days after Seller gives notice to Buyer that the check was returned: (i) the full amount of the check; and (ii) the amount of bank fees incurred by Seller as a result of the returned check. Buyer shall be responsible for all court costs and attorney fees incurred by Seller if Buyer fails to pay Seller within five (5) days and Seller commences legal action against Buyer.
If the Quotation or Quote provides for a “Core Charge,” the Buyer must ship the core to the Seller within ten (10) days after receipt of the Goods from the Seller. Buyer will receive credit for the full “Core Charge” credit stated in the Quotation or Quote if the core has no holes, dropped valves, or is cracked. Seller reserves the right to reduce the “Core Charge” credit stated in the Quotation or Quote, in an amount determined solely by Seller, if the core is damaged with holes, dropped valves, or is cracked and Buyer shall be responsible for compensating Seller for any reduction in the “Core Charge” credit stated in the Quotation or Quote.
The Goods are made up of parts assembled together. This Limited Warranty applies to each of the component parts and not to the entire assembly. Seller expressly warrants to Buyer that all parts sold to the Buyer are free from material defects in material and workmanship.
The duration of this Limited Warranty is one (1) year from delivery at the Delivery Point and is not limited by the number of miles or hours the Goods are operated during the duration of the Limited Warranty.
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Seller shall not be liable for a breach of the warranty set forth in Section 5(a) unless: (1) Seller is given a reasonable opportunity after receiving the notice to examine such goods or the part subject to Buyer’s warranty claim; and (ii) Seller reasonably verifies Buyer’s claim that the part is defective.
Seller shall not be liable for a breach of the warranty set forth in Section 5(a) if: (i) Buyer makes any further use of such goods after giving the notice required by Section 5(d) without the prior consent of the Seller; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the operation, storage, installation, commissioning, use or maintenance of the goods; (iii) the failure occurs as a result of abuse, misuse, corrosion, erosion, normal wear and tear, and/or failure to maintain and/or operate the Goods in the manner recommended by the manufacturer; or (iv) Buyer alters or repairs such goods without the prior written consent of the Seller. “Alteration” means the replacement, removal, or addition of any parts and/or the application of any foreign materials to the Goods other than routine maintenance and/or lubrication of the type, and on the schedule, recommended by the original manufacturer.
Subject to Section 5(d) and 5(e) above, Seller shall, in its sole discretion, either repair or replace defective parts if the parts were supplied by the Seller and contained material defects in material and workmanship.
Replacement of parts shall be made by Seller under Section 5(f) above FOB Seller’s facility, Evington, Virginia (the “Delivery Point”).
Seller is not obligated under this Limited Warranty to remove parts subject to this warranty from, or install parts in, Buyer’s equipment, boat, or vessel. Seller is obligated only to provide a part to replace any part provided by Seller that has a material defect in material and workmanship.
THE REMEDIES SET FORTH IN SECTION 5(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 5(A).
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise or any other right, remedy, power or privilege.
Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No Assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement is governed by and shall be construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.
Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Virginia in each case located in the City of Roanoke, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quotation or Quote or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Law, Governing Law, Submission to Jurisdiction and Survival.
Price; Payment Terms.
Limited Warranty.
Limitation of Liability.
Compliance with Law
Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
Termination
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (1) fails to pay any amount when due under this Agreement and such failure continues for five (5) business days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of consumers.
Disparagement
Buyer hereby agrees to not disparage Seller, orally, in writing, on the internet or in any other medium, by making a false and/or misleading statement about the Seller and/or Seller’s performance of this Agreement or to cause any other person to make such false and/or misleading statement. Buyer hereby agrees to pay liquidated damages in the amount of the sales price stated in the Quotation or Quote and Seller’s attorneys fees and costs in the event that Seller is required to bring a defamation action against Buyer and Seller proves in a court of competent jurisdiction that Buyer has made a false and/or misleading statement about Seller and/or Seller’s performance of this Agreement.