TERMS & CONDITIONS

1. ENTIRE AGREEMENT

This Order Confirmation embodies the entire agreement between Customer and Utility Trailer concerning the Parts and the Work and the pricing thereof.  The Customer and Utility Trailer shall not be bound by nor liable for any statement, representation, promise or understanding not set forth herein.  Nothing contained in any proposals, correspondence, discussions or negotiations (oral or written) prior to the date of this Order Confirmation has any effect on this Order Confirmation unless specifically incorporated herein.  Utility Trailer hereby objects to and rejects any and all terms and conditions in any documents, instruments or other agreements forwarded to Utility Trailer by the Customer, including any additional or inconsistent terms set forth therein.  No changes, waivers, alterations, amendments, substitutions or modifications of any of the terms and conditions hereof shall be valid unless reduced to writing and signed by Utility Trailer. 

1. CHANGES

Utility Trailer shall not be responsible for proceeding with any change orders or directives, including changes to specifications, until a written agreement has been signed with respect thereto; provided, that in the event Utility Trailer proceeds with any change order or directive prior to the making of such a writing, such accommodation by Utility Trailer shall not be deemed a waiver of any of its rights hereunder, including its right to require a written change order.  In the event of such accommodation, Utility Trailer may stop its work in connection with the change at any time prior to the execution of a written change order.  Pricing changes resulting from any changes, including changes in specifications, shall be as mutually agreed to by Customer and Utility Trailer; provided, that in the event Customer and Utility Trailer fail to timely reach any such agreement, the price change shall be determined by Utility Trailer, in its reasonable discretion, and invoiced to Customer by no later than 30 days after delivery of the Product. 

1. WARRANTIES

Utility Trailer warrants that the Work shall be performed in a workmanlike manner.  Additionally, for a period of ninety (90) days from completion of the Work, Utility Trailer warrants that the Work will be free from material defects in workmanship.  THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF UTILITY TRAILER. UTILITY TRAILER MAKES NO WARRANTY WHATSOEVER IN RESPECT TO PARTS AND ACCESSORIES (WHICH MAY OR MAY NTO BE COVERED BY A MANUFATURERS WARRANTY). 

1. LIMITATION OF REMEDIES

Customer's remedy for breach of any term hereof, including any breach of the foregoing warranties shall be limited to (a) the replacement or repair by Utility Trailer of defects in the Parts and/or the Work or (b) the reimbursement of the price paid by Customer for the Parts and the Work.  The determination of which such remedy shall be applicable shall be determined by Utility Trailer, in its sole discretion.  THE ABOVE STATED REMEDIES ARE UTILITY TRAILER' ENTIRE AND EXCLUSIVE LIABILITIES AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY CLAIM FOR DAMAGES IN CONNECTION HEREWITH.  By way of illustration and not limitation, in no event (i) may Customer revoke or reject acceptance of the Parts or Work or claim any equitable adjustment to the purchase price, or (ii) shall Utility Trailer be liable for any direct, indirect, special or consequential damages or delay whatsoever or loss of use, and Utility Trailer' liability under no circumstance will exceed the contract price for the Parts and/or Work for which liability is claimed.  All claims for breach of any of Utility Trailer's warranties shall be barred unless Customer notifies Utility Trailer in writing within 30 days of discovery of the breach.  Additionally, any claim arising out of or related to this Order Confirmation must be brought no later than one (1) year after the same has accrued, or it shall be deemed waived.  Utility Trailer shall not be responsible for any repairs performed by third parties unless such repairs are authorized by Utility Trailer in writing in advance.  Failure to bring timely such claim shall be a waiver thereof.

1. PRICES

5.1   The prices for the Work set forth herein shall be valid for a period of thirty (30) days; provided, however, (a) if a specific date or period is provided in the Specific Terms, such prices shall be valid through such date or period, and (b) prices for Parts are estimates only and are not guaranteed to Customer.  Customer shall be charged the prices for the Parts as are in effect when the Work is performed (as established by Utility Trailer). 
5.2   In addition to any price specified, Customer shall be responsible for and pay (a) all customs, duties and taxes on the sale, delivery, storage, consumption or transportation of the Parts, including sales, use, excise, retailer's occupation or similar taxes, (b) all costs and fees for shipping and transportation of the Parts, including all freight charges and packing and crating costs, and (c) in the event required in connection with the Work (as determined by Utility Trailer), any travel by employees of Utility Trailer.  Customer shall indemnify, defend and hold Utility Trailer and its affiliates, officers, directors, shareholders, owners, members, employees and agents harmless from any loss, claim or damage suffered by Utility Trailer as a result of Customer’s failure to timely pay such sums.
5.3   Notwithstanding any other term or condition hereof, the Customer understands and agrees that (a) the itemized Parts may not be a complete list of the Parts used in connection with the Work and (b) Customer shall be pay for all Parts used in connection with the Work as set forth in 5.1 above, including, any of the following used in connection with the Work, protective materials, acetylene, sanding discs, gasket materials, assorted clips and fasteners, friction tape, bench lubricants, hacksaw, silicone spray, special adhesive compounds, mechanic’s wire, trim cement, chassis grease, shim stock, cleaning brushes, gasket sealer compound, abrasive stones, oxygen, acid core solder, Permatex compounds, welding rods, bits masking tape, nails, masking paper, staples and sandpaper.

1. PAYMENT

In the event Customer has obtained written credit approval from Utility Trailer, payment on the Parts and the Work shall be due 30 calendar days, net (without discount), after completion of the Work. In the event no written credit approval has been granted by Utility Trailer and for all other fees and costs described herein, payment shall be due immediately upon completion of the Work.  Payment shall not be conditioned on anything other than completion of the Work.  Payment shall not be subject to any offset by Customer.  If payment is not made when due, Customer shall pay Utility Trailer (a) a finance charge equal to the lesser of (i) 1.5% per month or (ii) the maximum allowable interest rate allowable under law and (b) a services charge of 1.5% of the amount invoiced..

1. OTHER AGREEMENTS

7.1   Customer authorizes (a) Utility Trailer to perform all repair work and order all Parts necessary for the proper repair of the Trailer; and (b) Utility Trailer and its employees to operate the Trailer (on streets, highways or elsewhere) in connection the performance of the Work.. 
7.2   Customer acknowledges that (a) Utility Trailer uses certain toxic and otherwise strong chemicals in connection with the washing of Trailers; (b) alternative detergents may be available to Customer upon request (upon agreement of Utility Trailer); (c) Utility Trailer is not responsible for any damage or personal injury that may occur while your Trailer is being washed, including but not limited to any damage related to pre-existing conditions (tears, scratches, dents, discoloration, normal wear and tear, rust, post manufacture paint jobs, etc.), damage to automated windshield wiper systems, loose trim or exterior moldings, exterior mirrors, roof racks, antennas, aftermarket accessories (bug shields, sun visors), magnetic signage, running boards, hood ornaments, alloy, chrome or mag wheels, headlights, reflectors, electrical components, or the actions of other customers.

1. PICK-UP; RISK OF LOSS

Promptly upon completion of the Work, Customer shall arrange for the pick-up of the Trailer.  Customer agrees that any Trailer remaining on the site of Utility Trailer after the completion of the Work shall be charged a storage fee of $100.00 per day unless otherwise agreed by Utility Trailer.  The Customer shall be responsible for all risk of loss or damage to any Trailer at the facility of Utility Trailer (including the contents thereof) due to any cause whatsoever, including due to fire or theft.  Customer acknowledges that it shall be Customer’s responsibility if Customer desires, to insure against this risk.

1. COMPLETION DATES; FORCE MAJEURE

Completion dates provided by Utility Trailer are estimates only.  Utility Trailer agrees to use its reasonable efforts to meet such completion dates.  Utility Trailer shall not be held liable for any loss, damage, delay or the cancellation hereof due to any unforeseeable condition or other matter beyond its reasonable control (“Force Majeure Event”), including any accident, fire, acts of civil or military authorities, epidemics, pandemics, war, riots, labor difficulties (including differences with workmen, strikes, work stoppages), failure to agree to the terms of any change order or directive, failure or delay in obtaining Parts, acts of God, material shortages or carriers delay.  Upon the occurrence of a loss, damage or delay as the result of a Force Majeure Event, Utility Trailer shall use reasonable efforts to notify Customer thereof; provided, that failure to provide such notice shall not be deemed a waiver of the rights of Utility Trailer hereunder.  In the event that a Force Majeure Event continues for a period of sixty days, Utility Trailer or Customer may terminate this Order Confirmation upon written notice; provided, that Customer shall be responsible for the payment of any and all costs and fees incurred by Utility Trailer with respect to this Order Confirmation through the date of such termination.

1. CANCELLATION/SUSPENSION

Except in the case of a Force Majeure Event that continues for a period of sixty days (as specified above), orders placed by Customer may not be cancelled or suspended without Utility Trailer's written consent (which may be withheld for any reason).  In the event of a cancellation, at a minimum, Customer shall be charged for the cost of special materials, non-resalable goods, completed or in process, labor, overhead and profit; provided, that a minimum charge of 20% of the contract price shall be applied in the event of a cancellation.  Cancellation charges shall be invoiced and paid immediately thereupon.  In the event of a suspension, in addition to any other sums owing to Utility Trailer through the date of such suspension, Utility Trailer shall be entitled to reimbursement for any additional costs and fees incurred in connection therewith, including any costs in effecting such suspension and resuming the Work upon the conclusion of any suspension.  Additionally, a 25% restocking fee will be charged on all returned merchandise.

1. DEFAULT

It shall be deemed a default hereunder and Utility Trailer may terminate this Order Confirmation and its obligations owing hereon upon the occurrence of any of the following events: (a) if Customer shall fail to comply with any of the covenants or conditions contained in this Order Confirmation; (b) if a petition in bankruptcy is filed by or against the Customer or a receiver or trustee of the Customer is appointed, or if Customer files a petition for reorganization, under any of the provisions of the bankruptcy laws, or any other laws, state or federal, or makes an assignment for the benefit of creditors, or is adjudged insolvent by any state or federal court of competent jurisdiction;  or (c) if a material change occurs in Customer's financial condition, or Utility Trailer believes the prospect of payment or performance of the Customer’s obligations hereunder are impaired.  Utility Trailer shall provide written notice of such termination in the event of items (a) and (c) above and the termination shall be immediate in the event of item (b) above.  Customer shall pay the entire amount of the invoiced price for the Parts and Work immediately upon such termination, less any direct costs and fees saved by Utility Trailer as a result of such termination.  Such rights of Utility Trailer shall be in addition to any other rights and remedies of Utility Trailer as set forth herein or as allowed by law or in equity.

1. INDEMNIFICATION

Customer shall indemnify, defend and hold Utility Trailer and its Customer agrees to indemnify Utility Trailer and its affiliates, officers, directors, shareholders, owners, members, employees and agents against all loss, damage or expense from any loss, claim or damage suffered by Utility Trailer as a result of Customer’s negligence or intentional misconduct with respect to the Parts, the Work or otherwise.

1. NO ASSIGNMENT

Customer agrees that it will not assign this Order Confirmation in whole or in part without Utility Trailer’s prior written consent, which may be withheld for any reason.  Upon prior written notice to Customer, Utility Trailer may assign its rights and responsibilities hereunder to any qualified third party (as determined by Utility Trailer).

1. ATTORNEY FEES

In the event an arbitration, suit or action is brought by any party under this Order Confirmation to enforce or interpret any of its terms, or in any appeal therefrom or in any bankruptcy action, it is agreed that the prevailing party shall be entitled to reasonable attorneys fees and/or collection costs. Additionally, Utility Trailer shall be entitled to any and all fees and costs, including attorney fees and costs, incurred in connection with any collection efforts and/or actions in connection herewith.

1. JURISDICTION/VENUE

This Order Confirmation shall be binding upon the successors and assigns of Utility Trailer and Customer, and shall be governed by and construed in accordance with the laws of the State of Washington.  In the event of litigation or arbitration between the parties to enforce any terms of this Order confirmation, the parties agree that venue shall be in the Superior Court of the State of Washington for Pierce County.

1. SECURITY INTEREST

In connection herewith, Customer acknowledges an express mechanic’s lien with respect to the Trailer in the possession of Utility Trailer. Specifically, Customer hereby grants to Utility Trailer a security interest in all materials and Parts held by Utility Trailer, including any Trailers upon which the Work is performed.  This security is given to secure the payment and performance of all indebtedness and obligations of Customer to Utility Trailer currently existing or hereinafter arising, including any sums arising pursuant to this Order Confirmation.  Customer agrees to execute such security agreements and other documents as may be deemed necessary by Utility Trailer in order to allow Utility Trailer to take and perfect its security interest in the subject property.  Customer authorizes Utility Trailer to file any financing statements necessary to perfect its interest in its collateral without further approval. 

1. SURVIVAL

The terms hereof shall survive the cancellation, termination and satisfaction of this Order Confirmation.

1. PERSONAL GUARANTEE

To the extent that the Customer is a corporation, limited liability company, or other similar entity, the individual members, shareholders and/or owners of the Customer and any parent or affiliated entities of Customer hereby guarantee the obligations owing to Utility Trailer.  Upon the request of Utility Trailer, Customer shall arrange for the execution of written guarantees by such parties (in form and content satisfactory to Utility Trailer).

1. CONFIDENTIALITY

Except as otherwise waived in writing by Utility Trailer, Customer shall keep confidential all of the terms and conditions set forth in this Order Confirmation and all of the materials and information provided by Utility Trailer to Customer in connection with the manufacture of the Parts. 

1. NONWAIVER

Failure by Utility Trailer to insist upon strict performance of any of the terms and conditions hereof, or failure to delay to exercise any rights or remedies provided herein or by law, or to properly notify Customer in the event of breach, or the acceptance of or payment for the Parts, shall not be deemed a waiver of any right of Utility Trailer to insist upon strict performance hereof or any of its rights or remedies as to any such Parts regardless when shipped, received or accepted, or as to any prior or subsequent default hereunder, nor shall any termination of this Order Confirmation by Utility Trailer operate as a waiver of any of the terms hereof.

1. SEVERABILITY

If, in any legal proceeding, it is determined that any provision of this Order Confirmation is unenforceable under applicable law, the unenforceable provision shall automatically be amended to conform to that which is enforceable under applicable law.  In any event, the validity or enforceability of any provision shall not affect any other provision of this Order Confirmation, and the Purchase Order shall be construed and enforced as if such provision had not been included