These terms and conditions ("Terms and Conditions"), the foregoing Fleet Agreement and Fleet Service Application (collectively, the Terms and Conditions, the Fleet Agreement, and Fleet Service Application are the "Agreement") apply to the purchase of services and related goods provided by Tire Discounters, Inc. ("TDI") to Customer using a Fleet Credit Account with TDI. Use of a Fleet Credit Account is subject to, and Customer acknowledges acceptance of, these Terms and Conditions, as may be amended from time to time in TDI's sole discretion. In the event of a conflict between these Terms and Conditions and any other understanding, agreement, representation, warranty, or communication between the Customer and TDI, these Terms and Conditions will control.
1. Definitions. The below words have the following meanings:
"Business Day" means any day other than a Saturday, Sunday or other day on which banking institutions are generally authorized or required by law or executive order to close.
"Customer" is the customer entity who has applied for and been approved for a Fleet Credit Account with TDI.
"Event of Default" has the meaning provided in Section 9.1 of the Terms and Conditions.
"Fleet Account User" means Customer or any other entity or individual authorized by Customer to use the Fleet Credit Account.
"Fleet Credit Account" means the credit extended to Customer by TDI.
"Invoice" is the list of goods and services and amounts due for each Transation. Each Invoice will be delivered via email at the email address provided on the Fleet Service Application, unless otherwise requested in writing by Customer.
"Transaction" means the use of the Fleet Credit Account to buy service sand related goods at authorized TDI locations.
"Unauthorized Transaction" means a Transaction made on the Fleet Credit Account by any person or entity other than a Fleet Account User.
2. Credit and Accounts.
2.1. TDI may, in its sole discretion, extend credit to Customer after a complete and accurate application has been completed. TDI may at any time, investigate the financial condition of Customer or, as applicable, its subsidiaries and affiliates. If requested, Customer agrees to furnish TDI copies of its financial statements, or other financial information as soon as available. Financial statements shall have been prepared in accordance with generally accepted accounting principles, consistently applied and shall be in accordance with the books and records of Customer. Failure to present requested financial information may result in the termination of Customer's Fleet Credit Account. Customer represents and warrants that any information provided pursuant to this provision is accurate and complete.
2.2. TDI may suspend a Fleet Credit Account or refuse to authorize any Transaction in its sole discretion and specifically in the event that any balance is past due. Customer shall, immediately upon request, pay the entire balance due on the Fleet Credit Account.
2.3. Customer shall designate its internal contacts authorized to: (i) provide TDI with the information necessary to establish and maintain Customer's Fleet Credit Account; (ii) receive all Invoices; and (iii) receive other Fleet Credit Account information. Customer will provide notice to TDI of any change or removal of any contact in writing. TDI is authorized to take instruction from any contact with apparent authority to act on Customer's behalf. Unless and until Customer reports any errors in its Fleet Credit Account information, TDI is entitled to rely on that information for servicing the Fleet Credit Account.
2.4. In addition to its initial application, Customer hereby authorizes TDI to check its credit references, credit history, and other business information as needed, in order to manage Customer's relationship with TDI. Customer consents to providing TDI a security interest in any goods purchased on the Fleet Credit Account. Customer consents to TDI filing a UCC-1 financing statement on any of Customer's assets secured by the Agreement. Customer also agrees to promptly provide TDI with adequate assurances if TDI has concern over Customer's ability to honor the terms of the Agreement. Said assurances may include, but are not limited to: (a) a UCC-1 lien on any of Customer's assets located within the United States; (b) a personal guarantee from a thirty party which TDI, in its sole discretion, approves; or (c) escrow of funds.
2.5. Any purchases on Customer's Fleet Credit Account will only be for the purchase of services and related goods for business or commercial purposes and not for personal, family or household purposes. Customer shall adopt internal policies and controls to ensure that the Fleet Credit Account is used strictly for business or commercial purposes.
3. Unauthorized Use. Customer is responsible for all Transactions and use of Customer's Fleet Credit Account by its current and former employees, contractors, affiliates, subsidiaries, or subcontractors. It is Customer's responsibility to monitor all Fleet Credit Account activity.
4. Additional Fees. Should any payment, check, or other transfer from Customer be returned for insufficient funds or for any other reason which would cause the funds to be unavailable to TDI, Customer agrees that it will be charged a $50.00 processing fee for each such payment returned.
5. Payment Promise.
5.1. Customer agrees to be liable to TDI for payment of all Invoices pursuant to the Agreement. Payment is due thirty (30) days from the Invoice date ("Payment Period"). If the Fleet Credit Account is not paid in full pursuant the required terms (including any late charges or other fees), the Fleet Credit Account may be suspended and placed on hold until the outstanding balance is paid in full. TDI reserves the right to immediately terminate the Agreement if payment is not made within the Payment Period. TDI reserves the right to request additional security or to alter the terms of this Agreement if the Fleet Credit Account has any delinquencies. TDI may send monthly statements to Customer as a courtesy.
5.2. In the event that any Invoice is not paid in full within the Payment Period, TDI may require Customer to forfeit any discounts that TDI agreed to give Customer for any purchase made by Customer during the applicable payment period(s) and for all purchases made by Customer after TDI's notice of termination of this Agreement (i.e., Customer will pay full retail prices on purchases made during the period of non-payment and after such termination.)
6. Late Fees. Any Invoice not paid in full within the Payment Period is subject to a late charge at the rate of four percent (4%) of the past due balance, or $50, whichever is higher. TDI will begin to assess late fees on the first Business Day following the date a payment is due and not made. The late fee will apply to all past due amounts.
7. Application of Payments. Payments will be applied first to any unpaid late charges or other fees and then to any unpaid balances. In addition to any other rights under applicable law, TDI may, without notice, set off and apply any and all monies, and any and all other indebtedness at any time held by TDI to or for Customer's Fleet Credit Account, against or on account of any indebtedness owed by Customer to TDI or any of Customer's other obligations and liability to TDI, howsoever arising.
8. Disputed Amounts. If Customer believes an Invoice contains information that is incorrect, it must bring the discrepancy to TDI's attention in writing within the Payment Period. If Customer timely brings a discrepancy to TDI's attention in writing within the Payment Period, Customer must pay the undisputed portion of the Invoice within the Payment Period. All discrepancies or disputes of charges must be timely sent in writing to TDI or they will be considered final and binding and unconditionally waived by Customer. The dispute should detail Customer's name and account number, the specific transactions and total dollar amount of the dispute, as well as a description or possible explanation of the error.
9. Default and Remedies.
9.1. The occurrence of any one of the following events shall constitute an Event of Default: (i) failure of the Customer to remit payment to TDI in accordance with the terms of the Agreement; (ii) the representation or warranty of any facts in connection with the Agreement that prove to have been materially incorrect or misleading when the representation or warranty was made; (iii) breach by either party of this Agreement, other than an event of nonpayment by Customer, provided the breach is not remedied within 30 days of the defaulting party's receipt of written notice from the other party specifying the breach; (iv) the filing by or against Customer of any petition in bankruptcy, insolvency, or receivership, or pursuant to any other debtor relief law or the entry of any order appointing a receiver, trustee, liquidator, or any other person with similar authority over the Customer's assets; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of Customer; (vi) the entry of any adverse judgment, order, or award against Customer that has a material adverse impact on the financial condition of Customer or a detrimental effect on the ability of Customer to perform its obligations; or (vii) the default by Customer under any other agreement between Customer and TDI.
9.2. Upon an Event of Default: (i) Customer may not have any further right to borrow under this Agreement or obtain credit from TDI; (ii) all outstanding amounts under the Fleet Credit Account become immediately due and payable; (iii) TDI may terminate this Agreement; and (iv) TDI will have the right to bring suit and exercise all rights and remedies available under applicable law, including the payment of all reasonable attorney fees and costs. In addition, TDI may, in its sole discretion: (i) immediately suspend all services and obligations; (ii) shorten the billing cycle; or (iii) change the payment terms. The suspension of services and/or obligations will not be deemed a waiver of any right to terminate this Agreement.
10. Term and Termination.
10.1. The Agreement is effective upon acceptance of the Fleet Application by TDI and execution of the Fleet Agreement by Customer, which includes acceptance of these Terms and Conditions. The Agreement may be terminated by either party, with or without cause, upon thirty (30) days advance written notice. Upon termination, Customer is still obligated to pay for all Transactions made prior to the effective date of the termination.
11. Force Majeure.
11.1. In no event shall either party be liable to the other party (except for payment of money on outstanding amounts on the Account) for any failure or delay in performance wholly or in part due to causes or circumstances beyond its reasonable control and without its fault or negligence including, but not limited to the following: Acts of God; acts of the public enemy; civil disturbance; war; acts of the United States of America or any state, territory or political division of the United States of America; fires; floods; natural disasters; pandemic or epidemic events, regional, statewide, or nationwide strikes, or any other general labor dispute not specific to that party; communication line failures; and/or freight embargoes (collectively "force majeure"). A party's failure to perform its obligations under this Agreement due to force majeure events will not be considered breach or default if the party has made its best efforts to: (i) comply with its obligations; (ii) avoid an interruption of its performance; and (iii) resume its performance. The party claiming a failure or delay in performance under this Agreement due to force majeure must promptly notify the other party in writing. In the event that any such force majeure failure or delay continues for a period of more than ten (10) business days, the other party may, upon written notice to the other party, have the option of terminating this Agreement without incurring additional liability.
12. Assignment and Amendment.
12.1. Customer may not assign the Agreement or any interest or rights under this Agreement for any reason, without TDI's prior written consent, which consent may be withheld at TDI's sole discretion. TDI may freely assign its rights and obligations under the Agreement.
12.2. TDI may revise these Terms and Conditions at any time, with or without notice, in accordance with applicable law. Any amendments or modifications to the Terms and Conditions must be in writing and executed by authorized representatives of both parties.
13. Representations and Warranties.
13.1. Customer represents and warrants that: (i) it is a duly formed and validly existing entity organized under the laws of the state of its formation; (ii) it is vested with all the requisite authority to enter into this Agreement; (iii) it has the requisite financial strength to perform its obligations under the Agreement; (iv) the Agreement constitutes a legal, valid, binding, and enforceable agreement; (v) the Agreement does not constitute a breach of any agreement with any other party, or of any duty arising in law or equity; (vi) the Agreement does not violate any law, rule or regulation applicable to it; and (vii) the Agreement has been authorized by all necessary corporate action of the parties. Customer agrees to provide any evidence of corporate or other organizational existence and authorization that TDI may reasonably request, in its sole discretion. Failure of TDI to request evidence of corporate or organizational existence may not be used against TDI.
13.2 Customer will provide TDI with advance written notice of: (i) any change in Customer's legal structure or legal name; (ii) any merger or sale of a substantial part of Customer's assets; (iii) any change in control of Customer; or (iv) if an employee or owner of Customer that has provided a guaranty of payment has terminated their relationship with Customer. TDI reserves the right to make any modification to the Fleet Credit Account terms based upon any of these changes made by Customer.
14. Severability and Waiver. If any provision hereof shall be held invalid or unenforceable, the remainder of these Terms and Conditions shall remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
15. Waiver of Jury Trial; Class Action Rights. CUSTOMER HEREBY WAIVES ANY RIGHT THAT IT HAS TO HAVE ANY DISPUTE RELATING TO THESE TERMS AND CONDITIONS, THE FLEET AGREEMENT, OR THE FLEET SERVICE APPLICATION BE HEARD BY A JURY. ANY CLAIM BROUGHT BY CUSTOMER AGAINST TDI MUST BE BROUGHT IN THE CUSTOMER'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING ("CLASS ACTION"). CUSTOMER EXPRESSLY WAIVES ANY ABILITY TO MAINTAIN OR PARTICIPATE IN ANY CLASS ACTION IN ANY FORUM.
16. Attorneys' Fees & Costs. Customer shall be liable to TDI for any and all attorneys' fees and costs incurred by TDI to enforce the Agreement, regardless of whether legal action is taken.
17. Indemnification. TDI will indemnify and hold Customer harmless from and against any and all liability, losses, damages, claims or causes of action, and expenses connected therewith, caused, directly or indirectly, by the gross negligence of or willful misconduct of TDI or its employees. Customer will indemnify and hold TDI harmless from and against any and all liability, losses, damages, claims or causes of action, and expenses connected therewith, caused directly or indirectly by Customer, subcontractors, or any of their directors, officers, employees, independent contractors, subcontractors or agents, and for any and all claims which may be asserted against TDI by any officer, director, employee, independent contractor, subcontractor or agent of Customer, or any other third party, whether or not such injury is the type subject to the provisions of any workers' compensation act. The foregoing indemnities are conditioned on: (a) prompt written notice of any claim or proceeding subject to indemnity; (b) reasonable cooperation by the indemnified party in the defense and settlement of such claim, at the expense of the indemnifying party; and (c) prior written approval by the indemnifying party of any settlement, which approval shall not be unreasonably withheld.
18. Limitation of Liability and Warranty.
18.1. IN NO EVENT SHALL TDI BE LIABLE IN ANY MANNER FOR INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES AND, ANY RIGHT OR CLAIM TO EITHER IS EXPRESSLY AND UNCONDITIONALLY WAIVED.
18.2. TDI MAKES NO WARRANTIES WITH RESPECT TO GOODS, PRODUCTS, OR SERVICES PURCHASED ON THE FLEET CREDIT ACCOUNT. TDI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ANY LIMITED WARRANTIES PROVIDED BY TDI DO NOT PROVIDE COMPENSATION FOR LOSS OF TIME, LOSS OF USE OF VEHICLE, INCONVENIENCE, OR CONSEQUENTIAL DAMAGES, EXCEPT AS OTHERWISE REQUIRED BY LAW.
19. Governing Law; Choice of Forum. The Agreement shall be governed and construed in all respects in accordance with the laws of the State of Ohio as they apply to a contract entered into and performed in Ohio, without regard to its conflict of law rules. The parties agree that neither party shall commence any litigation against the other except in a court located in Hamilton County, Ohio. Each party consents to jurisdiction over it by, and exclusive venue in, such a court.
20. Arbitration. The parties shall endeavor in good faith to resolve any dispute related to the Agreement. If, within 30 days' notice to the other party of such dispute, the dispute cannot be resolved through negotiation, the dispute shall be settled by binding arbitration in Cincinnati, Ohio. The prevailing party shall be entitled to an award of reasonable attorneys' fees. Judgment upon the arbitrator's award may be entered in any court having jurisdiction over such matter.
21. Notices. Any notice permitted or required by these Terms and Conditions shall be deemed made on the day personally delivered in writing or mailed by certified or registered mail, postage paid to the other party at the address set forth below
If to TDI:
Tire Discounters, Inc.
One East Fourth St., 4th Floor
Cincinnati, Ohio 45202
If to Customer:
Customer's contact information as listed in Customer's Fleet Application.
Customer shall be solely responsible for updating its contact information with TDI.
22. Relationship of the Parties. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between TDI and Customer.
23. Entire Agreement. Customer's Fleet Service Application, Fleet Agreement, and these Terms and Conditions, as may be amended, constitute the entire agreement and supersede any and all agreements, either oral or written, between the parties hereto with respect to the Fleet Credit Account and the provision of goods and services to Customer by TDI, and contains all the covenants and agreements between the parties with respect to the rendering of the Fleet Credit Account and the provision of goods and services to Customer by TDI.