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DISCLOSURE, DISCLAIMER, TERMS AND CONDITIONS


DISCLOSURES:

1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE PRODUCT. INSTEAD, PROMPTLY CONTACT THE DISTRIBUTOR FROM WHICH YOU PURCHASED THE PRODUCT IN WRITING, REQUESTING A REFUND OF THE PURCHASE PRICE. ANY USE OF THE PRODUCT WILL CONSTITUTE BUYER’S AGREEMENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN.

2. GRANT OF LICENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUPPLIER IS GRANTING A NON-TRANSFERABLE RESTRICTED LICENSE TO BUYER TO USE THE PRODUCT FOR THE SOLE PURPOSE OF INSTALLATION IN BUYER’S VEHICLE. SUPPLIER SHALL RETAIN ALL TITLE, OWNERSHIP RIGHTS AND INTELLECTUAL PROPERTY RIGHTS IN AND TO THE PRODUCT. BUYER AGREES THAT BUYER SHALL NOT, DIRECTLY OR INDIRECTLY, MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR CREATE DERIVATIVE WORKS BASED ON THE PRODUCT. BUYER FURTHER AGREES NOT TO PERMIT ANY THIRD PARTIES TO MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR CREATE DERIVATIVE WORKS BASED ON THE PRODUCT.

3. BUYER IS PURCHASING PARTS, SUPPLIES, EQUIPMENT, MATERIAL, MOTOR PARTS, ELECTRONIC PARTS, COMPUTER MODIFICATIONS, ETC. WHICH HAVE BEEN CUSTOMIZED AND MODIFIED BY SUPPLIER AT THE BUYER’S SPECIAL INSISTENCE AND REQUEST. SUPPLIER MANUFACTURES OR PRODUCES COMPUTERS, COMPUTER PARTS AND SOFTWARE FOR MOTOR VEHICLES; THE ITEMS PURCHASED ARE REFERRED TO AS “PRODUCTS”. THE PRODUCTS DISABLE MANUFACTURER’S SAFETY OR OTHER FEATURES CONSEQUENTLY SUCH MODIFICATIONS MAY NOT BE SAFE AND THE BUYER ASSUMES THE RISK OF ANY SUCH MODIFICATIONS OR CHANGES TO THE MOTOR VEHICLE FOR WHICH THE PRODUCT MAY BE USED ON THE PRODUCTS PURCHASED BY BUYER MAY AFFECT THE ORIGINAL PART’S FUNCTIONALITY, WARRANTY, AND OPERATION; THE PRODUCTS PURCHASED MAY ALSO VOID MANUFACTURER’S WARRANTIES. INSTALLATION AND USE OF THE PRODUCTS SOLD TO BUYER SHOULD ONLY BE ATTEMPTED BY A QUALIFIED AUTOMOTIVE SPECIALIST.

4. SUPPLIER PROVIDES NO WARRANTY AND ACCEPTS NO RESPONSIBILITY FOR DAMAGE FROM USING ANY OF THE PRODUCTS SOLD UNDER THIS AGREEMENT INCLUDING CHANGES, MODIFICATIONS TO OR ORIGINAL BASE CALIBRATION TABLES.

5. SUPPLIER PROVIDES NO WARRANTY AND ACCEPTS NO RESPONSIBILITY FOR DAMAGES RESULTING FROM THE EXTENDED ENGINE REVOLUTION SPEED AND/OR VEHICLE SPEED LIMITER.

6. IMPROPER INSTALLATION AND TUNING OF THE ECU CAN RESULT IN PERMANENT ENGINE DAMAGE.

7. NEVER ATTEMPT TO TUNE THE ECU AND OPERATE THE VEHICLE AT THE SAME TIME.

8. NEVER TUNE THE ECU ON PUBLIC ROADS/HIGHWAYS.

DISCLAIMER:

1. THE PRODUCTS ARE BEING SOLD WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITH THE EXCEPTION OF THE LIMITED WARRANTY STATED BELOW, ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE PRODUCTS ARE NOT ENDORSED BY THE MANUFACTURER OF YOUR VEHICLE AND THERE IS NO AFFILIATION BETWEEN SUPPLIER AND THE MANUFACTURER OF YOUR VEHICLE. INSTALLATION OF THE PRODUCTS IN YOUR VEHICLE OR USE OF THE PRODUCTS WITH YOUR VEHICLE MAY LIMIT OR VOID YOUR RIGHTS UNDER ANY WARRANTY PROVIDED BY THE MANUFACTURER OF YOUR VEHICLE, AND SUPPLIER ASSUMES NO RESPONSIBILITY IN SUCH EVENT. ANY WARRANTY NOT PROVIDED HEREIN, AND ANY REMEDY WHICH, BUT FOR THIS PROVISION, MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW, IS HEREBY EXCLUDED AND DISCLAIMED. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE HEREIN ARE EXPRESSLY DISCLAIMED.

2. NO LIABILITY FOR DAMAGES, INJURIES OR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL SUPPLIER, OR ANY OTHER PARTY RELATED TO SUPPLIER, BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY DAMAGE TO BUYER’S VEHICLE, LOSS OF USE OF BUYER’S VEHICLE, OR FOR PERSONAL INJURIES SUFFERED BY ANY PERSON, OR FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE. SUPPLIER’S LIABILITY FOR ANY DAMAGES, LOSS AND/OR CLAIMS ASSOCIATED WITH THE PRODUCT SHALL BE LIMITED TO THE PRICE OF THE PRODUCT PAID BY BUYER. BUYER HEREBY RELEASES SUPPLIER FROM ALL LIABILITY, CLAIMS AND DAMAGES ASSOCIATED WITH THE PRODUCTS, WITH THE SOLE EXCEPTION OF SUPPLIER’S LIABILITY FOR THE REFUND OF THE PURCHASE PRICE OF THE PRODUCT TO BUYER IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION DETERMINES THE BUYER SUFFERED DAMAGES DIRECTLY RESULTING FROM THE MALFUNCTION OF THE PRODUCT.

3. THE PRODUCTS SOLD BY SUPPLIER ARE NOT LEGAL FOR SALE OR USE ON ANY POLLUTION CONTROLLED MOTOR VEHICLES. THE PRODUCTS MAY BE LEGAL IN CALIFORNIA ONLY FOR RACING VEHICLES WHICH MAY NEVER BE USED UPON A HIGHWAY.

LIMITED WARRANTY:

1. LIMITED WARRANTY. SUPPLIER PROVIDES A LIMITED WARRANTY ONLY ON THE PRODUCTS THAT IT MANUFACTURES AS FOLLOWS: THE PRODUCT TO BE FREE FROM ALL DEFECTS IN MATERIAL AND WORKMANSHIP FOR 1 YEAR FROM THE DATE OF ORIGINAL PURCHASE. THIS LIMITED WARRANTY APPLIES ONLY TO THE ORIGINAL BUYER OF THE PRODUCT. THIS LIMITED WARRANTY DOES NOT COVER DAMAGE CAUSED BY MODIFICATION, ALTERATION, REPAIR OR SERVICE OF THE PRODUCT BY ANYONE OTHER THAN SUPPLIER, PHYSICAL ABUSE, MISUSE, USE IN A MANNER CONTRARY TO THE INSTRUCTIONS, WHICH ACCOMPANY THE PRODUCT, OR ANY DAMAGE CAUSED BY ACTS OF GOD. THE ECU WILL EITHER BE REPAIRED OR REPLACED, AT THE OPTION OF SUPPLIER, AT NO COST TO BUYER, IF THE DEFECTIVE PRODUCT IS COVERED BY THIS LIMITED WARRANTY. SUPPLIER’S LIABILITY PURSUANT TO THIS LIMITED WARRANTY AND FOR ANY DAMAGES, LOSS AND/OR CLAIMS ASSOCIATED WITH THE PRODUCT SHALL BE LIMITED TO THE PRICE OF THE PRODUCT PAID BY BUYER, OR, AT SUPPLIER’S OPTION, REPAIR OR REPLACEMENT OF THE PRODUCT.

a. Supplier offers a 30 day guarantee on all products. If in the first 30 days from date of purchase Buyer is are not satisfied with the Supplier’s products, simply restore your vehicle to the factory configuration and return the products to the Supplier. Pending examination of the unit by Supplier, Buyer will receive a refund from Supplier if the products is in returnable condition as solely determined by the Supplier. Under no circumstances will Supplier accept the return of a product that does not have a performance tune remaining in it.

b. Supplier products carry a 1 year limited warranty against defects in materials or workmanship.

c. Suppliers liability under this limited warranty shall be limited to the correction or replacement of any defective part or product in question which Supplier determines to be necessary.

2. Limited warranty freight charges are the responsibility of the Buyer.

3. This limited warranty is to the original Buyer and is non transferable.

4. This limited warranty is void unless proof of purchase is submitted. Product must be purchased from an Authorized Supplier or Dealer in order to qualify for warranty.

5. Removal of serial numbers and/or alteration of product or packaging will also void all warranties.

6. Supplier shall not be held responsible for direct or indirect failures due to our products.

7. Technical Support. Supplier will provide technical assistance and advice directly to the Buyer to enable them to answer and field technical questions. It is the Buyer ‘s responsibility to handle their own technical issues with Buyer’s customers, if any, and not to direct them to Supplier.

8. Product updates are available on Supplier’s website at www.aprpower.com <http://www.aprpower.com/> .

9. Supplier will charge a labor and handling fee for products that are internet updateable or remotely updateable. . Supplier will not charge a fee for products that are not internet updateable or remotely updateable. Shipping charges may apply. All products returned for update purposes must have a corresponding Supplier RMA number for processing.

10. Returns and RMA/RGA policies and procedures. Supplier will not warranty, credit, or exchange any product returned without a valid RMA number. All RMA numbers are issued by Supplier RMA department. Defective units shall be repaired and returned in like kind. All units that must be re-furbished to like new condition are subject to labor and parts charges to be determined by Supplier. Buyer’s are subject to a 20% restocking fee for all products that are returned for credit. All units on RMA MUST have conditions for which they were returned clearly labeled on the box, or given to a Supplier RMA representative at the time the RMA is issued.

11. Supplier cannot be held accountable for any or all damages caused by using outdated product.

iii. Products that need updates will be handled in the following fashion:

12. State Law. Some states do not allow limitations of implied warranties, or the exclusion or limitation of incidental, special or consequential damages, so the above limitations may not apply to you. In such states, liability shall be limited to the greatest extent permitted by applicable law.

OTHER TERMS AND CONDITIONS:

1.0 Purchase Offer, Conditions, Acceptance and Construction of Agreement. This Agreement is conditioned upon full and complete acceptance of all of the terms and conditions contained in this Agreement and acceptance of this Agreement is expressly limited thereby. In the event that Supplier submits or proposes any terms that state any additions, changes, deviations, or modifications to this Agreement, said terms shall automatically be deemed void, objected to and rejected by Supplier unless the changes are expressly agreed to in writing by an authorized representative of Supplier. Acceptance of Supplier's goods, services and/or Work constitutes acceptance of any of the terms and conditions or other contractual provisions which may be stated in Supplier 's documentation. No representations, promises, guarantees or warranties were made to induce either party to execute this Agreement other than those stated in the Agreement. The captions, numbering sequences, titles, paragraph headings, punctuation, and organization used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of this Agreement or any part of it. The paragraph headings used in this Agreement are descriptive only and shall have no legal force or effect whatsoever other than to aid a reasonable interpretation of the Agreement. The titles to each of the various articles and paragraphs are included for convenience or reference only and shall have no effect on or be deemed as part of the text of this Agreement. Use of the neuter or the singular to refer to the parties described in this Agreement shall be deemed a proper reference whether a party is an individual, partnership, corporation, association, trust, a group of two or more individuals, partnerships, or corporations, or a joint venture. Any grammatical changes required to make the provisions of this Agreement applicable to corporations, associations, partnerships, trusts, individuals, or groups of individuals, and changes required to make the provisions apply to females as well as males shall, in all instances be assumed as though each case were fully expressed. The agreement may contain the wording "he or she" or "his or her". The use of such expressions shall allow the agreement too apply to the masculine or feminine gender as the individual circumstances may require. If any word, phrase, clause, or paragraph, or other provision of this Agreement is adjudicated or otherwise found to be against public policy, void, or unenforceable, then those words or provisions shall be deleted or modified in keeping with the express intent of the parties as necessary to render this Agreement valid and enforceable. All such deletions or modifications shall be the minimum required to affect the foregoing and the intent of the parties to this Agreement. If any provision of this Agreement is for any reason held violative of any applicable law, governmental rule or regulation, or if the provision is held to be unenforceable or unconscionable, then the invalidity of that specific provision shall not be held to invalidate the remaining provisions of this Agreement. All other provisions and the entirety of this Agreement shall remain in full force and effect unless the removal of the invalid provision destroys the legitimate purposes of this Agreement, in which event this Agreement shall be canceled and terminated.

2.0 Effective Date. This Agreement shall not be binding until it is executed by all parties to this Agreement. At that time this Agreement shall become effective and all obligations contained herein shall be conclusive and binding upon all of the parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed to be one and the same agreement.

3.0 Prices. All prices shall include any and all taxes including sales and use taxes, fees, levies or similar charges. All prices, payments and other terms which relate to money shall refer to United States of America (U.S.) dollars. Prices quoted shall be those in effect at the time quoted regardless of any currency changes which may occur between the time the price was quoted and payment is made. Invoiced amounts, not subject to dispute or set off, shall be due and payable by Buyer Name as stated in the Purchase Order.

4.0 Shipping. Buyer shall release any rail or truck shipment at the lowest valuation permitted in governing tariff or classification. Buyer shall assume risk of loss in transit with respect to any goods shipped from Supplier. Supplier shall not be liable for any discharge, spill, or other incident, including but not limited to, expenses for any corrective action costs involving any goods transported hereunder.

5.0 Unforeseen Events. In the event Supplier Name is delayed in delivering any goods or performing any services and/or Work and such delay is caused by war, riot, civil and insurrection, act of public enemy, act of civil or military authority, fire, flood, earthquake, or act of God, such delay shall be excused. In no event shall Buyer be entitled to additional or extra compensation by reason thereof. In the event of any such occurrence, Supplier Name shall deliver goods which can be delivered and perform services and/or Work which can be performed notwithstanding any such occurrence.

6.0 INDEMNITY. BUYER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SUPPLIER, ITS AFFILIATES, RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES (COLLECTIVELY, THE “AFFILIATED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, LOSSES, FINES AND PENALTIES OF ANY NATURE WHATSOEVER (COLLECTIVELY, “CLAIMS”) INCLUDING CLAIMS FOR ANY DAMAGE TO SUPPLIER, ITS PROPERTY, PERSONAL INJURY OR DEATH OF BUYER AND ITS CUSTOMERS, EMPLOYEES, AND THIRD PARTIES ARISING OUT OF ANY MISUSE OF SUPPLIER’S PRODUCTS OR SERVICES.

7.0 SURVIVAL OF INDEMNITY. BUYER’S INDEMNIFICATION OBLIGATIONS SHALL SURVIVE THE AGREEMENT AND BE ENFORCEABLE AS A SEPARATE AGREEMENT IN THE EVENT THE SAME BECOMES NECESSARY.

8.0 ARBITRATION OF DISPUTES. EXCEPT FOR DISPUTES, CLAIMS, OR CONTROVERSIES (DISPUTE(S)) ARISING OUT OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, TO THE FULL EXTENT PERMITTED BY LAW, ALL DISPUTES SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, SUBJECT TO THE CHOICE OF LAW AND VENUE PROVISIONS CONTAINED HEREIN. JUDGMENT UPON THE AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT HAVING JURISDICTION THEREOF. THE OBLIGATIONS CONTAINED IN THIS SECTION SHALL CONTINUE AND SURVIVE THE TERMINATION OF THE AGREEMENT. BY EXECUTION OF THIS AGREEMENT, THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD EACH PROVISION, TERM AND OBLIGATION CONTAINED IN THIS AGREEMENT. THIS AGREEMENT, ALTHOUGH DRAWN BY ONE PARTY, SHALL BE CONSTRUED FAIRLY AND REASONABLY AND NOT MORE STRICTLY AGAINST THE DRAFTING PARTY THAN THE NONDRAFTING PARTY.

9.0 Third Parties. Buyer shall not have the right to transfer or assign Buyer’s interest in this Agreement without the prior written consent of the Supplier. This Agreement is intended to be solely for the benefit of the parties named herein, their successors and permitted assigns. This Agreement is not intended to and shall not confer any rights or benefits to any third party except as specified in the Agreement. Nothing herein or in any of the agreements between the parties hereto, shall be construed or held to waive or limit Supplier’s claims, cause of actions or ability to make any and all claims against third parties who are not a party to this Agreement.

10.0 Non-Waiver. The failure or delay of either party in the enforcement of the rights detailed in the Agreement shall not constitute a waiver of the rights nor shall it be considered as a basis for estoppel either at equity or at Law. Either such party may exercise its rights under the Agreement despite any delay or failure to enforce those rights at the time the cause of action or right or obligation arose.

11.0 Choice of Law and Venue. The Agreement shall be subject to, governed and construed under the Laws of the State of Texas without giving effect to the conflict Laws of any jurisdiction or association. The parties agree that venue for purposes of any arbitration, any legal proceeding or action at law arising out of or construing this Agreement or other proceedings shall be conducted in the city and county where the Supplier’s corporate headquarters are located which is Comal County, Texas. The Buyer and any other parties specifically waive any other venue.

 © 2008 APR Power. All Rights Reserved.