General Terms and Conditions of Sale
OFF ROAD ENGINERING LLCThese Terms of this General Terms and Conditions of Sale (these “Terms“) apply to the purchase and sale of products by Off Road Engineering LLC (“Seller“), including through Seller’s website, and by placing or accepting an order for products from Seller, you (“Buyer“) accept and agree to be bound by these Terms.
1. Order Acceptance.
When Buyer signifies acceptance of this quotation by submission of a Purchase Order or signed Off Road Engineering LLC Quotation, it shall become a binding contract when accepted and signed by an authorized signer of Seller. In the event of any conflict between these Terms and any purchase order, sales order, or any other document issued by Buyer, these Terms shall prevail.
2. Delivery.
2.1 The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of any such goods. Seller shall not be liable for any delays, loss, or damage in transit.
2.2 Unless expressly agreed to by the parties, Seller shall deliver using Seller’s standard methods for packaging and shipping. Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. Unless otherwise directed, Seller shall have the right to make early or partial shipments and invoices covering the same to Buyer shall be due and payable in accordance with payment terms hereof. Title to and risk of loss of goods shall pass to Buyer upon delivery F.O.B. at Seller’s headquarters in Rancho Santa Margarita, CA. All shipping and handling charges and insurance will be added to the invoice and charged to Buyer.
2.3 Seller may, in its sole discretion, without liability or penalty, make partial shipments of goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
2.4 Each Seller product shall be deemed to have been accepted by Buyer if it meets specifications as set forth in Seller’s purchaser order/sales order/receipt. Notwithstanding the foregoing, use of said product by Buyer, its agents, employees, or licensees for any purpose shall constitute acceptance of product by the Buyer. Any Seller product not rejected within five (5) business days of receipt shall be deemed accepted.
3. Shipping Terms.
Seller shall make delivery in accordance with the terms on the face of the purchase order/sales order.
4. Price.
Seller’s published and quoted prices are subject to the following:
4.1 All published prices are subject to change without notice.
4.2 Shipments will be billed at prices in effect on the date of acceptance of Buyer’s order.
4.3 Stenographic and/or clerical errors are subject to correction.
4.4 Published or quoted prices do not include taxes, duties, any other governmental charges, or transportation. Buyer shall be responsible for the payment of all export and import licenses, customs fees, and duties, federal, state and local excise, sales, use, property, and similar taxes levied in respect to the products sold to the Buyer, except income taxes levied upon Seller.
4.5 Published and quoted prices are for standard products only and do not include proprietary rights of any kind other than Seller’s standard commercial packaging.
5. Payment.
Seller shall issue invoices to Buyer for each partial or final shipment. Buyer shall pay to Seller all invoiced amounts within thirty (30) calendar days from the date of such invoice. Flowdown provisions are not accepted. Retention is not allowed. In the event any payment becomes past due, Buyer shall pay interest on all late payments, calculated daily and compounded monthly at the rate of 1.5% per month (or the maximum rate allowed by law is such amount is lower). Buyer shall also reimburse Seller for all reasonable costs incurred by Seller in collecting any late payments, including, without limitation, attorneys’ fees and court costs. Buyer shall make all payments hereunder by in US dollars. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
6. Title and Risk of Loss.
Title and risk of loss or damages shall pass to Buyer upon Seller’s delivery of products to the transportation company. Seller reserves the right to select the best means of transportation and routing.
7. Amendment and Modification.
Any changes, modifications, or amendments to a purchase order, quotation, or these Terms made by Buyer must have Seller’s approval in writing to become a part of this agreement.
8. Limited Warranty.
Seller warrants to you, the consumer that originally purchases a Qualifying Product (as defined below) (the “Original Buyer“), and only to the Original Buyer, that for a warranty period of two (2) years from the date of Original Buyer’s purchase (“Warranty Period“), and subject to the exclusions set forth below, that the Qualifying Product shall be free from defects in materials and workmanship (the “Limited Warranty“). Seller only extends this Limited Warranty to the Original Buyer for “Qualifying Products“, which shall mean a product that is: (a) manufactured by Seller, and (b) sold directly by Seller or an authorized agent of Seller. This Limited Warranty does not cover products manufactured by third parties but otherwise sold by Seller on its website or through an authorized agent of Seller.
8.1 To qualify for the Limited Warranty, in the event that a Qualifying Product should have a defect in material or workmanship, then Original Buyer must notify Seller of such defect before the expiration of the two-year Warranty Period. To obtain warranty service, you must call 949-581-2991 or email our customer service department at sales@switch-pros.comduring the Warranty Period. Original Buyer must pay for the freight to return the product in question. If a product is returned to Seller for evaluation, and Seller determines that (a) the returned product has no defect in materials and workmanship, (b) the returned product is not a Qualifying Product, or (c) the party returning the product is not the Original Buyer, then the party returning any such product must pay to Seller all costs of freight to return the product in question, and all costs and fees (including labor) applicable to Seller’s investigation and/or inspection.
8.2 Provided that Original Buyer timely notifies Seller of such defect and further provided that Seller has found the Qualifying Product to actually be defective, then Seller shall, at its own expense and option, either repair or replace the defective Qualifying Product (or defective part thereof). Seller will return the repaired or replaced product within a reasonable period of time. If Seller elects to replace a defective Qualifying Product, such replacement will be a similar product, or one of equal or greater value.
8.3 This Limited Warranty does not cover: (1) any damage due to any of the following: (a) shipping or other transportation; (b) storage; (c) improper use or improper installation; (d) failure to follow the product instructions or to perform any preventive maintenance; (e) modifications; (f) unauthorized repair; (g) normal wear and tear; or (h) external causes such as accidents (including, without limitation, any damage resulting from a vehicle crash), abuse, or other actions or events beyond Seller’s reasonable control; (2) non-Qualifying Products (i.e. this Limited Warranty does not cover claims related to products manufactured by third parties, or products installed or used in tandem with Qualifying Products, including, without limitation, accessories or other electronic or electrical equipment that is being powered by a Qualifying Product); (3) claims made after the expiration of the Warranty Period; or (4) claims made by parties other than the Original Buyer (i.e. this Limited Warranty does not cover claims made by subsequent vehicle owners or subsequent owners of an otherwise Qualifying Product other than the Original Buyer).
8.4 THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS ARE IN LIEU OF ALL OTHER WARRANTIES AND SELLER HEREBY SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (D) WARRANTY OF TITLE.
9. Limitation of Liability.
9.1 IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DIMINUTION IN VALUE, LOSS OF USE, REVENUE, PROFIT, OR DATA, 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.
9.2 IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, 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. The foregoing limitation of liability set forth in this Section 9.2 shall only apply to the extent permissible under applicable law, and shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
10. Exclusive Remedy.
Buyer’s sole remedy for any dissatisfaction with a Seller product shall be replacement or refund as set forth in these Terms or in the Limited Warranty.
10.1 For any product not covered by the Limited Warranty, Buyer shall notify Seller of any dissatisfaction and obtain Seller’s authorization prior to the return shipment of products for adjustment, which may be authorized or refused in Seller’s sole and absolute determination. To make a return, you must call 949-581-2991or email our customer service department at sales@switch-pros.com. If Seller authorizes the return, which it may refuse to authorize in its sole and absolute discretion, Buyer is responsible for all shipping and handling charges on returned items. Buyer bears the risk of loss during shipment. We therefore strongly recommend that you fully insure any return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. Unauthorized returns will not be accepted or returned. All authorized returns are subject to a 5% restocking fee.
11. Waiver.
No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure by Seller to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms 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 thereof or the exercise of any other right, remedy, power or privilege.
12. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller.
13. Force Majeure.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms 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, materials, or telecommunication breakdown or power outage.
14. Notices.
All notices, request, consents, claims, demands, waivers and other communications to Seller (each, a “Notice“) shall be in writing and addressed as follows: 23111 Antonio Pkwy #210, Rancho Santa Margarita, CA 92688; email: sales@switch-pros.com or to such other address that may be designated by the Seller. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).
15. Governing Law.
These Terms shall be considered entered into in the State of California and all matters arising out of or relating to these Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
16. Arbitration.
ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY OF THESE TERMS, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY ARBITRATION IN ORANGE COUNTY, CALIFORNIA BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES OR PURSUANT TO JAMS’ STREAMLINED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION; PROVIDED THAT THE PARTIES EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF CALIFORNIA IN EACH CASE LOCATED IN THE COUNTY OF ORANGE.
17. Attorneys’ Fees.
If any party institutes any legal suit, action, arbitration, or proceeding against the other party arising out of or relating to these Terms of the sale of goods, including, but not limited to, contract, equity, tort, fraud, and statutory claims, the prevailing party in a final, non-appealable judgment regarding the suit, action, arbitration, or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action, arbitration, or proceeding, including reasonable attorneys’ fees and expenses, expert witness fees, court costs, and arbitrator fees, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post-judgment proceedings). This Section is intended to be severable from the other provisions of this Agreement, and the prevailing party’s rights under this Section shall not merge into any judgment and any judgment shall survive until all such fees and costs have been paid.
18. Severability.
If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Survival.
Provisions of these Terms that by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms.
