Terms and Conditions
This Repair Order (“Order”), including the front of this Order and these terms and conditions, constitute a legally binding contract for the Service Work for the Vehicle as described on the front side hereof, between RedLine Diesel Power Inc. doing business as RedLine Transmissions, identified on the front side hereof (“RedLine Diesel Power Inc.”) and the customer identified on the front side hereof (“Customer”). This Order is binding upon RedLine Diesel Power Inc. and Customer upon Customer’s execution of the front side hereof or the commencement of the Service Work or any part thereof.
(a) ANY AND ALL ADDITIONAL, DIFFERENT OR CONFLICTING TERMS OR CONDITIONS SET FORTH IN ANY PURCHASE ORDER OR OTHER COMMUNICATION FROM CUSTOMER ARE OBJECTED TO BY RedLine Diesel Power Inc. AND SHALL NOT BE EFFECTIVE OR BINDING UNLESS SPECIFICALLY ACCEPTED IN A WRITING SIGNED BY A CORPORATE OFFICER OR AUTHORIZED MANAGER OF RedLine Diesel Power Inc..
(b) None of the terms and conditions contained in this Order may be added to, modified, superseded or otherwise altered except by a written instrument signed by a corporate officer or authorized manager of RedLine Diesel Power Inc. and delivered to Customer by RedLine Diesel Power Inc.. All Service Work shall be made only upon the terms and conditions herein, regardless of any terms and conditions that may be contained in any purchase order or other form of communication from Customer.
2. DISCLAIMER OF WARRANTY:
(a) RedLine Diesel Power Inc. shall perform the Service Work in a reasonable manner, provided, however, RedLine Diesel Power Inc. makes no warranty or guarantee of a result. Vehicles which are deemed hazardous to test drive will hold no warranty and make no guarantee of result. Customer shall notify RedLine Diesel Power Inc. of any claim that RedLine Diesel Power Inc. did not reasonably perform the Service Work within ten (10) days after the discovery of same and in no event later than thirty (30) days after the performance of the Service Work. Within a reasonable time after notice from Customer, RedLine Diesel Power Inc., at its sole option, shall correct the Service Work which was not reasonably performed. If RedLine Diesel Power Inc. is unable to correct such Service Work. RedLine Diesel Power Inc., at its sole option, may refund to Customer the amount Customer paid to RedLine Diesel Power Inc. under this Order. These remedies shall be Customer’s exclusive remedies for any breach of this Order by RedLine Diesel Power Inc.. RedLine Diesel Power Inc. shall not be responsible to correct: (i) any condition which reasonably could have been prevented or minimized by Customer, (iii) any condition constituting normal wear and tear; (iv) any condition caused by acts of God; (v) any condition caused by abuse or misuse; or (vi) any condition not caused by RedLine Diesel Power Inc.’s failure to reasonably perform the Service Work. (b) CUSTOMER HEREBY ACKNOWLEDGES THAT RedLine Diesel Power Inc. NOR ANYONE ACTING ON ITS BEHALF HAS MADE ANY AFFIRMATION OF FACT, REPRESENTATION OR PROMISE RELATING TO THE SERVICE WORK THAT HAS BECOME A BASIS OF THIS TRANSACTION OR WHICH CREATES AN EXPRESS WARRANTY. TO THE FULLEST EXTENT PERMITTED BY LAW, RedLine Diesel Power Inc. DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, INFRINGEMENT, AND THOSE ARISING OUT OF PERFORMANCE OR DEALING OR USAGE OF TRADE OR ANY OTHER IMPLIED WARRANTY WITH RESPECT TO THE SERVICE WORK. (c) There are NO WARRANTIES, express or implied, made by RedLine Diesel Power Inc. or the manufacturer of any parts or other goods incorporated in the Service Work, used parts or customer-supplied parts. Except for noted limited transmission warranty and the manufacturer’s written warranty applicable to such parts or goods. Such separate manufacturer’s warranty shall be expressly IN LIEU OF any other express or implied warranty, condition or guarantee on said parts or goods. Customer hereby acknowledges that RedLine Diesel Power Inc. has not in any manner adopted the manufacturer’s warranty, as a warranty of RedLine Diesel Power Inc., including without limitation, by performing warranty work under the manufacturer’s warranty, and Customer acknowledges, represents and warrants that it shall look solely to the manufacturer to perform or satisfy any obligation under the manufacturer’s warranty.
3. LIMITATION OF LIABILITY: RedLine Diesel Power Inc. WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST USE, LOST PROFITS, LOST SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF RedLine Diesel Power Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE OR FOR CLAIMS MADE BY A THIRD PARTY. IN NO EVENT SHALL RedLine Diesel Power Inc.’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY RELATING TO OR RESULTING FROM THIS ORDER OR THESE TERMS AND CONDITIONS EXCEED THE PRICE PAID BY CUSTOMER FOR SUCH SERVICE WORK. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY AND WHETHER THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM , OR A FUNDAMENTAL BREACH. THESE LIMITATIONS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
4. PURCHASES; Rates; Authorization; Additional Repairs: The purchase of a transmission whether in person or online is the sole responsibility of the customer and it is assumed by RedLine Diesel the vehicle owner, in fact, needs a transmission and it is not another repair or maintenance issue. In most cases, RedLine Diesel Power Inc. has not seen the vehicle. RedLine Diesel Power Inc.’s charges for labor are not based on actual mechanic’s time, but are established by multiplying RedLine Diesel Power Inc.’s labor rate by industry time allowances or RedLine Diesel Power Inc.’s own judgment of the time to be charged. Estimates are provided are an approximation of timing and charges to you for the services requested. They are based on the anticipated work to be done. It is possible for unexpected complications to cause some deviation from the original estimate. If any additional or unanticipated repairs are required or the procurement of additional parts to fully complete the service work, If RedLine Diesel Power Inc. discovers that different or additional repairs are indicated, Customer will be contacted for authorization to make such additional repairs. Authorization may be given by Customer orally or in written form, including email. In the event that Customer authorizes commencement but does not authorize completion of a repair or service, a charge will be imposed for disassembly, reassembly, or partially completed work. Such charge will be directly related to the actual amount of mechanic’s time and/or parts involved in the inspection, repair, or service performed. RedLine Diesel Power Inc. will submit warranty claims on behalf of Customer for manufacturers for whom it is authorized to perform warranty service; however Customer understands and agrees that it is responsible for full payment for any Services provided that are not covered by warranty. RedLine Diesel Power Inc. is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by RedLine Diesel Power Inc. that is declined by Customer. Customer agrees that RedLine Diesel Power Inc. employees may operate Customer’s vehicle for purposes of facilitating the repairs, including but not limited to diagnosing, road testing, and sublet services.
5. OEM PARTS: Customer acknowledges that estimates for non-warranty repairs may include parts not made by the original manufacturer. Parts used in the non-warranty repair of customer’s vehicle by other than the original manufacturer are required to be at least equal in like kind and quality in terms of fit, quality and performance to the original manufacturer parts they are replacing.
6.. SUBLET REPAIRS: Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by RedLine Diesel Power Inc. and Customer hereby authorizes all sublet repairs that RedLine Diesel Power Inc., in its sole discretion, may deem necessary.
7. DAMAGE; THEFT: DRIVABILITY: RedLine Diesel Power Inc. is not responsible for loss of or damage to the vehicle due to or arising from fire, weather, theft or any other cause except the sole negligence of RedLine Diesel Power Inc.. RedLine Diesel Power Inc. is not responsible for any loss or damage to articles of personal property that have been left in the vehicle or for loss or damage to bodies, trailers or special equipment, including any cargo, materials or supplies carried on or in such bodies, trailers or special equipment, whatever the cause.
8. RETURNS; PAYMENTS; ALL SALES ARE FINAL. Deposits are non-refundable. Cash and carry parts are eligible for a refund within thirty days of purchase with the original sales receipt. Returns will incur 20% restocking fee. No returns or refunds on special ordered items or electrical parts. Customer shall pay RedLine Diesel Power Inc. for the Service Work at RedLine Diesel Power Inc.’s current standard rates for the Service Work, which shall be due in cash upon the tender by RedLine Diesel Power Inc. to Customer of the Vehicle upon which the Service Work is performed, unless and until credit terms for Customer are approved in a writing signed by a corporate officer or authorized manager of the RedLine Diesel Power Inc.. For Customers whose credit has been duly approved in advance by RedLine Diesel Power Inc. in a writing signed by a corporate officer or authorized manager of RedLine Diesel Power Inc.., the amounts due to RedLine Diesel Power Inc. for the Service Work shall be due in accordance with the Credit Agreement executed by Customer in connection with Customer’s applying for credit with RedLine Diesel Power Inc.. The terms and provisions of any such Credit Agreement are hereby incorporated herein. If payment is not made in accordance with the foregoing terms, in addition to its other legal rights and remedies, RedLine Diesel Power Inc. shall (i) be entitled to charge Customer, effective from the date payment becomes due, interest at the rate of one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, until payment is made to RedLine Diesel Power Inc. by Customer, and (ii) be entitled to withhold delivery of the Vehicle until payment is made to RedLine Diesel Power Inc. by Customer.
9. INDEMNITY: Customer shall defend, indemnify and hold harmless RedLine Diesel Power Inc., its agents, representatives and employees from and against, claims, liabilities, causes of action, costs and expenses, including but not limited to reasonable attorneys’ fees and experts’ fees arising out of the use, operation and maintenance of the Vehicle; any encumbrances against the Collateral; any violation of any applicable federal, state or local laws, statutes, ordinances or regulations by Customer, any environmental condition with respect to the Collateral; and any negligence or fault of Customer, Customer’s agents, representatives or employees, or any person or entity for whose acts Customer is responsible, regardless of whether such claims, liabilities, causes of action, costs and expenses were in part caused by the fault or negligence of RedLine Diesel Power Inc. or RedLine Diesel Power Inc.’s agents, representatives or employee. The indemnity obligations of Customer shall survive payment of this Order by Customer. The indemnity obligations of Customer hereunder shall not be limited by a limitation on amount or type of damages, compensation or benefit payable by Customer anyone directly or indirectly employed by Customer, or a person or entity for whose acts Customer may be liable, under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.
10. FAILURE OR DELAY OF DELIVERY; FORCE MAJEURE: RedLine Diesel Power Inc. shall not be liable for failure to deliver or delay in performance of the Service Work where such failure to deliver or delay is due, in whole or in part, to any cause other than the gross negligence of RedLine Diesel Power Inc.. Further, RedLine Diesel Power Inc. will not have any liability for any loss caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war, terrorist act or civil disturbance, delay of carriers, failure of normal sources of supply, act of government, public health emergency, pandemic, or any other cause beyond the reasonable control of RedLine Diesel Power Inc., including without limitation, any loss or damage to the Vehicle or any articles or property left in the Vehicle. RedLine Diesel Power Inc. is not responsible for loss of or damage to the Vehicle due to or arising from theft or any other cause except the sole negligence of RedLine Diesel Power Inc.. RedLine Diesel Power Inc. is not responsible for, including without limitation, any loss or damage to articles of personal property that have been left in the Vehicle or for loss or damage to such personal property, including any cargo, materials or supplies carried on or in the Vehicle, whatever the cause either while on the property or during on-road testing.
11.. NOTICES: It shall be a condition precedent to any liability of RedLine Diesel Power Inc., whether in contract, tort, or otherwise, arising out of this Order or any other dealings between the parties that Customer provide written notice to RedLine Diesel Power Inc. of any claim, controversy, or alleged breach of this Order in the time provided in Paragraph 2(a) hereof, and that Customer provide RedLine Diesel Power Inc. with a reasonable opportunity to cure the problems or issues giving rise to such claim, controversy, or alleged breach of this Order. Notwithstanding the foregoing, Purchaser must provide RedLine Diesel Power Inc. with notice of any claim, controversy, or alleged breach of this Order and demand for arbitration within twelve months of discovery or accrual of the same, whichever occurs first. It is understood and agreed by the parties that the foregoing provision is both a condition precedent to the right to take such action ,and a contractual modification to the statute of limitations for all actions, whether in contract, tort or otherwise, and failure to comply with this condition precedent and contractual statute of limitations shall be an absolute bar to recovery for any problems, issues, rights, claims or causes of action not specifically pled within the twelve month period. Whenever this Order requires that notice be provided to the other party, notice shall be deemed to have been validly given (i) if delivered in person to the party entitled to receive such notice, (ii) two (2) days after being sent by registered or certified mail, postage prepaid to the address indicated on the front side of this Order, or (iii) one (1) day after being sent via overnight mail through a respectable overnight delivery company.
12. ARBITRATION: Any controversy or claim arising out of or relating to this Order shall be decided by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, subject to the limitations and restrictions set forth in this Paragraph 12 A demand for arbitration shall be made within a reasonable time after a controversy or claim has arisen and in no event shall be made after the date when institution of legal or equitable proceedings based upon such claim or controversy would be barred by the applicable statute of limitations, subject to the restriction set forth in Paragraph 11. The arbitrator(s) shall have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. The parties acknowledge and agree that this Order evidences a transaction involving interstate commerce. Accordingly, the United States Arbitration Act (Title 9 of the United State Code) shall govern the interpretation, enforcement and proceedings pursuant to the arbitration provisions of this Order. The place of arbitration shall be in the American Arbitration Association’s office closest to the location of RedLine Diesel Power Inc. designated on the front side hereof. The parties shall be entitled to discover all documents and information reasonably necessary for a full understanding of any relevant issue raised in the arbitration. Regardless of any term or provision herein to the contrary, claims for contribution or indemnity filed by a party in any lawsuit or action filed or asserted by a third party on account of personal injury or death of any person or damage to property shall not be subject to the terms and provisions of this Paragraph 12. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
14. EXPENSES AND COSTS: Should RedLine Diesel Power Inc. be required to institute any action, including any arbitration proceeding, to enforce any of its rights set forth in this Order, then RedLine Diesel Power Inc. shall be entitled to reimbursement from Customer for all expenses, including but not limited to, reasonable attorneys’ and experts’ fees, and costs incurred by RedLine Diesel Power Inc. in connection with such action. In the event Customer institutes any action, including any arbitration proceeding, against RedLine Diesel Power Inc. and in the further event RedLine Diesel Power Inc. prevails in such action, Customer shall pay RedLine Diesel Power Inc. the amount of all expenses, including but not limited to reasonable attorneys’ and exerts’ fees, and costs incurred by RedLine Diesel Power Inc. in connection with such action.
15. MISCELLANEOUS: This Order may not be changed, altered or amended in any way except in writing signed by a corporate officer or authorized manager of RedLine Diesel Power Inc. and an agent of Customer. Customer acknowledges and agrees that Customer has had an adequate opportunity to review and revise this Order and the Order shall not be construed against or in favor of Customer or RedLine Diesel Power Inc., No waiver by either party of a breach or default hereunder will be deemed a waiver by such party of a subsequent breach or default of a like or similar nature. No waiver of any of these terms and conditions or any of the terms and conditions will be effective against RedLine Diesel Power Inc. unless in writing singed by a corporate officer or authorized manager of RedLine Diesel Power Inc.. No course of dealing or performance, usage of trade or failure to enforce any term or condition will be used to modify this Order. If any of these terms or conditions is unenforceable, such term or condition will be limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain in full force and effect. This Order is deemed to have been entered in to in the state of the location of RedLine Diesel Power Inc. designated on the front side hereof and will be governed by the laws of the state of the location of RedLine Diesel Power Inc. designed on the front side hereof, without giving effect to the choice of laws provision thereof. The remedies expressly provided for in these conditions will be in addition to any other remedies that RedLine Diesel Power Inc. may have under the Uniform Commercial Code or other applicable law. Customer may not assign this Order without proper written consent of RedLine Diesel Power Inc.. These terms and conditions are for the exclusive benefit of RedLine Diesel Power Inc. and Customer and no other person will have rights hereunder.