Terms and Condition

PARTIES TO THIS CONTRACT: DEFINITIONS.
As used in these terms and conditions (these “Terms and Conditions”), the terms (a) “RUSH DIESEL & AUTOMOTIVE” shall mean Incline Equity Partners LLC a/k/a RUSH DIESEL & AUTOMOTIVE and the repair facility identified at the top of Work Order; (b) “Work Order” shall mean any work order, proposal, purchase order, or request for repairs (whether authorized by insurance or not) and any addendum thereto (collectively “Contract”) (as applicable) generated by RUSH DIESEL & AUTOMOTIVE or received from Customer which may establish in addition to these Terms and Conditions essential commercial terms not in conflict with these Terms and Conditions; (c) “Customer” shall mean the Customer identified on the Work Order; (d) “Manufacturer” shall mean the entity or entities that manufactured the Parts used in the Services; and (e) “Services” shall mean the repair and/or maintenance services performed by RUSH DIESEL & AUTOMOTIVE for Customer, together with the Parts.

APPLICABILITY OF TERMS AND CONDITIONS.
These Terms and Conditions govern the sale of Parts and Services from RUSH DIESEL & AUTOMOTIVE to Customer. The Terms and Conditions are incorporated into each and every Work Order. In the event of any conflicting provisions in any Work Order or any other document received from Customer, these Terms and Conditions shall control, and RUSH DIESEL & AUTOMOTIVE shall proceed with the sale under the assumption that these Terms and Conditions are the sole terms and conditions binding on the parties. These Terms and Conditions, as may be subsequently modified by RUSH DIESEL & AUTOMOTIVE from time to time without notice, are incorporated by reference into all documents issued by RUSH DIESEL & AUTOMOTIVE to Customer in connection with the sale and provision of Parts & Services; provided, however, that these Terms and Conditions shall only apply to the sale of Parts & Services by RUSH DIESEL & AUTOMOTIVE to the Customer.

NO MODIFICATIONS; ENTIRE AGREEMENT.
RUSH DIESEL & AUTOMOTIVE’s provision of Parts and Services to Customer is expressly conditioned upon Customer’s acceptance of these Terms and Conditions. RUSH DIESEL & AUTOMOTIVE hereby rejects any terms or conditions which attempt to alter, modify, or change any provision hereof, or otherwise attempt to suspend, contradict, or add to any term or condition contained herein, and Customer hereby waives all such terms or conditions; thus, such shall not be binding on RUSH DIESEL & AUTOMOTIVE unless expressly agreed to in a separate written instrument signed by RUSH DIESEL & AUTOMOTIVE’s authorized representative. RUSH DIESEL & AUTOMOTIVE objects to any different, inconsistent, conflicting, supplemental, or additional terms or conditions and hereby rejects such, whether contained in previous or subsequent proposals or communications (whether oral or written) from or with Customer or implied by trade, custom, practice, course of dealing, or usage in the trade.

WARRANTY DISCLAIMERS AND LIMITATIONS.
LIMITED WARRANTY ON SERVICES: RUSH DIESEL & AUTOMOTIVE warrants that the Services will be performed in a good and workmanlike manner (“Services Warranty”). The Services Warranty is valid for 24,000 miles or 2 years from the date the Services are performed. Customer’s sole and exclusive remedy, and RUSH DIESEL & AUTOMOTIVE’s entire liability under the Services Warranty, is the repair of any non-conforming portion of the Services. The Services Warranty is valid ONLY if the vehicle is returned, at Customer’s expense, to one of RUSH DIESEL & AUTOMOTIVE’s repair facilities for evaluation and repair. Any claim for repairs performed by someone other than a RUSH DIESEL & AUTOMOTIVE facility must be approved in writing by RUSH DIESEL & AUTOMOTIVE prior to commencement of any work; otherwise, such work performed shall void this Services Warranty. This Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser or transferee. In the event RUSH DIESEL & AUTOMOTIVE is not allowed an opportunity to cure defects in the Services, then Customer unequivocally waives the right to pursue RUSH DIESEL & AUTOMOTIVE for the cost of repair or damages resulting from such defects. Customer agrees that no oral or written representation, guaranty, or warranty made by RUSH DIESEL & AUTOMOTIVE, its employees, agents, or representatives, other than as expressly set out in these Terms and Conditions, shall be binding on RUSH DIESEL & AUTOMOTIVE. RUSH DIESEL & AUTOMOTIVE PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

PARTS – MANUFACTURER WARRANTIES ONLY: Any warranties on any Parts are limited only to those written warranties provided by the applicable Part’s Manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.

NO OTHER WARRANTIES: EXCEPT AS SET FORTH ABOVE, RUSH DIESEL & AUTOMOTIVE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED.

LIMITATION OF RUSH DIESEL & AUTOMOTIVE LIABILITY AND DAMAGES.
IN NO EVENT SHALL RUSH DIESEL & AUTOMOTIVE’S LIABILITY, REGARDLESS OF THE CAUSE THEREOF, EXTEND BEYOND REPLACEMENT OR REPAIR OF PARTS AND SERVICES OR GIVING CUSTOMER CREDIT FOR THE PURCHASE PRICE OF PARTS AND/OR SERVICES SOLD OR PROVIDED, AT RUSH DIESEL & AUTOMOTIVE’S ELECTION, NOR SHALL RUSH DIESEL & AUTOMOTIVE HAVE ANY LIABILITY FOR LOSS OF TIME, COSTS OF LABOR EXPENDED, OR FOR ANY SEPARATE, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED WORK BY CUSTOMER OR CAUSED BY THE PARTS AND/OR SERVICES PROVIDED BY RUSH DIESEL & AUTOMOTIVE. CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST RUSH DIESEL & AUTOMOTIVE, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AS DEFINED IN THE UNIFORM COMMERCIAL CODE, INCLUDING, BUT NOT LIMITED TO INDIRECT OR SPECIAL DAMAGES, LOSS OF INCOME OR ANTICIPATED PROFITS, OR DOWN-TIME, OR ANY PUNITIVE DAMAGES, WHETHER THE DAMAGES BE IN CONTRACT OR TORT. RUSH DIESEL & AUTOMOTIVE’S TOTAL LIABILITY FOR ANY PARTS OR SERVICES SOLD SHALL NOT EXCEED THE AMOUNT PAID TO RUSH DIESEL & AUTOMOTIVE FOR SUCH PARTS OR SERVICES CAUSING THE LIABILITY.

RATES; WORK AUTHORIZATION; ADDITIONAL REPAIRS.
RUSH DIESEL & AUTOMOTIVE’s charges for labor are not based on actual mechanic’s time, but are established by multiplying RUSH DIESEL & AUTOMOTIVE’s labor rate by industry time allowances (flat rate) or RUSH DIESEL & AUTOMOTIVE’s own judgment of the time to be charged. If an estimate is provided, Customer will not be charged more than the estimated price approved by Customer. However, if RUSH DIESEL & AUTOMOTIVE 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 writing. 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 labor or parts involved in the inspection, repair, or service performed. RUSH DIESEL & AUTOMOTIVE will submit warranty claims on behalf of Customer for manufacturers it is authorized to perform warranty service; however, Customer acknowledges and agrees that it is responsible for full payment for any Services and Parts provided that are not covered by warranty. RUSH DIESEL & AUTOMOTIVE is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by RUSH DIESEL & AUTOMOTIVE that is declined by Customer. Customer agrees that RUSH DIESEL & AUTOMOTIVE employees may operate Customer’s vehicle for purposes of facilitating the repairs, including but not limited to diagnosing, road testing, and sublet services.

RATES.
RUSH DIESEL & AUTOMOTIVE’s charges for labor are not based on actual mechanic’s time but are established by multiplying RUSH DIESEL & AUTOMOTIVE’s labor rate by industry time allowances or RUSH DIESEL & AUTOMOTIVE’s own judgment of the time to be charged. If an estimate is provided, Customer will not be charged more than the estimated price approved by Customer. However, if RUSH DIESEL & AUTOMOTIVE 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 but not limited to, email and text message. 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 a charge will be directly related to the actual amount of mechanic’s time and/or parts involved in the inspection, repair, or service performed. RUSH DIESEL & AUTOMOTIVE 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. RUSH DIESEL & AUTOMOTIVE is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by RUSH DIESEL & AUTOMOTIVE that is declined by Customer.

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 others 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.

SUBLET REPAIRS.
Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by RUSH DIESEL & AUTOMOTIVE, and Customer hereby authorizes all sublet repairs that RUSH DIESEL & AUTOMOTIVE, in its sole discretion, may deem necessary.

DAMAGES; THEFT.
RUSH DIESEL & AUTOMOTIVE 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 RUSH DIESEL & AUTOMOTIVE. RUSH DIESEL & AUTOMOTIVE 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.

TAXES, DUTIES, BROKERAGE AND OTHER FEES.
In addition to the agreed purchase price for Goods and/or Services, Customer shall pay to RUSH DIESEL & AUTOMOTIVE any and all applicable taxes imposed by any present or future law on the sale, manufacture, delivery, installation, use, and/or other handling of Goods and/or Services, whether such taxes are characterized as goods and services tax, sales tax, use tax, excise tax, value-added tax, business transfer tax, or otherwise (collectively, “Taxes”), but excluding income taxes normally paid by RUSH DIESEL & AUTOMOTIVE, and all other reasonable charges for ancillary services and costs such as forming, galvanizing, and other services.

PAYMENT; STORAGE FEES.
Payment terms not contained on Work Order shall be in addition to the following. All charges for repairs, including Parts and Services furnished, are due and payable simultaneously with the delivery of the described vehicle or prior to delivery upon the expiration of 3 days after notice to the Customer that the repairs have been completed. If the vehicle is not picked up within 3 days after notice is given, RUSH DIESEL & AUTOMOTIVE may charge daily storage fees at rates that are ordinary and customary for the area, but not to exceed $50 per day or the maximum rate allowable by applicable law, whichever is lower. Any deposit required is non-refundable. Any deposit paid shall be applied to the balance of total owed for the Parts and/or Services. Issuance of credit to Customer by RUSH DIESEL & AUTOMOTIVE shall be in RUSH DIESEL & AUTOMOTIVE’s sole and absolute discretion. Time shall be of the essence in payment. No payment shall be deemed to have been received until RUSH DIESEL & AUTOMOTIVE has received cleared funds. In the event Customer fails to make payment to RUSH DIESEL & AUTOMOTIVE of any amount due and owing (including any applicable surcharge or freight charge) by the net due date, RUSH DIESEL & AUTOMOTIVE may charge interest on the outstanding balance at an annual compounding rate of 18% or the highest rate allowed by law (whichever is less) until paid in full. Customer shall make all payments due to RUSH DIESEL & AUTOMOTIVE for Goods and/or Services sold without any deduction whether by way of set-off, counterclaim, abatement or otherwise, unless Customer has a valid court order requiring an amount equal to such deduction to be paid by RUSH DIESEL & AUTOMOTIVE to Customer. All Goods and/or Services are provided or performed on a firm price basis. Any additional or unscheduled Services which are performed by RUSH DIESEL & AUTOMOTIVE not covered by the Contract must be mutually agreed to in writing signed by both RUSH DIESEL & AUTOMOTIVE and Customer, referencing the applicable Work Order.

DELIVERY; INSTALLATION; AND PERFORMANCE.
Unless specifically agreed to by RUSH DIESEL & AUTOMOTIVE in a separate signed writing, RUSH DIESEL & AUTOMOTIVE does not guarantee any certain date of delivery and shall not be liable to Customer for any losses, costs, damages, charges, or expenses incurred by Customer or any other person or entity arising directly or indirectly out of a failure to deliver and/or install on any particular date, nor will any delay entitle Customer to terminate or rescind its purchase unless such delay exceeds 90 days. Time for delivery is NOT of the essence and shall not be made so by the service of notice from Customer of any certain required date of delivery. RUSH DIESEL & AUTOMOTIVE reserves the right to defer delivery, to cancel the Services, all without liability of any kind whatsoever to Customer, if RUSH DIESEL & AUTOMOTIVE is prevented from or delayed in the carrying on of its business due to causes beyond RUSH DIESEL & AUTOMOTIVE’s control, including, without limitation, strikes, lockouts or other labor difficulties, floods, fires, earthquakes, hurricanes, or other unusually severe weather conditions, embargoes, war or other outbreak of hostilities, pandemics, acts of terrorism, acts of God, acts of Customer, market shortages, unavailability of Goods and/or Services or necessary materials, supplies or transportation services, any shift in Parts costs that prohibit or materially reduce the supply of Parts or Services from RUSH DIESEL & AUTOMOTIVE’s suppliers, inability to obtain work space, machinery breakdowns, delays of carriers or suppliers, governmental acts and regulations or other contingency the non-occurrence of which was a basic assumption on which the Contract was accepted. In such a case, RUSH DIESEL & AUTOMOTIVE shall have no obligation to purchase Parts or make other substitute Service arrangements in order to complete delivery and/or installation to Customer.

INDEMNITY.
To the fullest extent permitted by law, Customer shall, at Customer’s sole cost and expense, indemnify, defend, release, and hold harmless RUSH DIESEL & AUTOMOTIVE, its members, managers, agents, and employees from and against any and all claims, demands, lawsuits, or proceedings of any kind brought or threatened against RUSH DIESEL & AUTOMOTIVE and/or its managers, members, agents, and employees based on any claim, in whole or in part, that the Parts and/or Services as performed and/or installed by RUSH DIESEL & AUTOMOTIVE in accordance with specifications or other information provided by Customer fail to (i) be adequate for a particular purpose, (ii) comply with any product liability law, rule, or regulation pertaining thereto, (iii) be adequate for any purpose which the Parts and/or Services are put after delivery by RUSH DIESEL & AUTOMOTIVE to Customer, and/or (iv) damages caused to either the Customer’s vehicle or to RUSH DIESEL & AUTOMOTIVE and its employees due to the pre-existing conditions of the vehicle prior to Customer’s delivery of the Vehicle to RUSH DIESEL & AUTOMOTIVE. Customer shall pay all costs, expenses, damages, liabilities, and losses incurred by RUSH DIESEL & AUTOMOTIVE, its members, managers, agents, and/or employees as a result of any such actual or threatened claim, demand, lawsuit, or proceeding, including, but not limited to, reasonable attorney’s/legal fees.

LITIGATION AND COLLECTION.
Venue in any legal action brought by either Customer or RUSH DIESEL & AUTOMOTIVE in connection herewith shall be deemed proper in any of the following locations, which locale shall be in the county and state of the location of a RUSH DIESEL & AUTOMOTIVE facility. These Terms and Conditions shall be governed by the laws of the State of Utah. If any default is made on payment of amounts due for the sale of Parts and/or Services or upon any other breach of these Terms and Conditions, the prevailing party shall be entitled to reasonable costs of collection and/or compliance, including, but not limited to, reasonable attorneys’/legal fees and costs.

WAIVER.
Neither any failure nor any delay on the part of RUSH DIESEL & AUTOMOTIVE in exercising any rights hereunder shall operate as a waiver of any of RUSH DIESEL & AUTOMOTIVE’s rights. Any waiver by RUSH DIESEL & AUTOMOTIVE of any breach of, or any default under, any provision of these Terms and Conditions by Customer will not be deemed a waiver of any subsequent breach or default. All rights and remedies granted herein are in addition to all remedies available at law or in equity.

ASSIGNMENT.
Customer may not assign its rights or obligations hereunder (whether voluntarily, involuntarily, by operation of law, transfer of majority or controlling interest, or otherwise) without the prior written consent of RUSH DIESEL & AUTOMOTIVE.

SEVERABILITY; EXCLUSIVE AGREEMENT.
If any provision of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions, and the remaining Sections shall continue in full force and effect. The Contract by and between Customer and RUSH DIESEL & AUTOMOTIVE for the purchase and sale of Parts and/or Services created hereby constitutes the entire agreement by and between Customer and RUSH DIESEL & AUTOMOTIVE with regard to the subject matter hereof and shall exclusively determine the rights and obligations of Customer and RUSH DIESEL & AUTOMOTIVE with regard to the purchase and sale of Parts and/or Services, any prior course of dealing, custom or usage of trade or course of performance notwithstanding, and may not be modified by Customer except in separate writing signed by an authorized agent of RUSH DIESEL & AUTOMOTIVE.

ACCEPTANCE.
Acceptance of the offer contained in this quotation is limited to the terms hereof. Signing of the Contract by the Customer shall be deemed to be an acceptance by Customer to be bound by these Terms and Conditions.

NON-DISPARAGEMENT.
Customer covenants and agrees not to, at any time, whether directly or indirectly, make, publish, or communicate, in any form or manner, to any person, entity, or in any public forum, any negative, defamatory, or disparaging remarks, comments, publications, statements, or communications concerning RUSH DIESEL & AUTOMOTIVE, its affiliates, owners, and/or its employees. This agreement not to make, publish, or communicate any negative, defamatory, or disparaging remarks, comments, publications, statements, or other communications is to be construed broadly, so as to restrict against any and all public and/or private communications, that could, in any way, impair, diminish, or otherwise negatively affect RUSH DIESEL & AUTOMOTIVE’s public image, reputation, business, and contractual prospects, and/or any existing or potential customer relationships, whether made orally, in writing, or otherwise, and is meant to include, and does include, all physical, electronic, verbal, and nonverbal communications of any kind or form, including, without limitation, communications made to social media networks (including, without limitation, Facebook, Instagram, X (formerly Twitter), LinkedIn, Marco Polo, YouTube, Snapchat, and any other social networking website or application); newspapers; television stations; radio networks; online websites, forums or reviews; news media; societies, agencies, or organizations of any kind; and publications and publishers of any kind. As used herein, “Communication” includes, without limitation, any and all conversations, meetings, posts, discussions, broadcasts, and/or any other form of verbal or nonverbal exchange of information, whether in person, by telephone, in writing or otherwise, and whether physically or electronically. Communication specifically includes, without limitation, telephone calls; letters; emails; text messages; memoranda; telegrams; cables; other writings or documents; and any form of social media exchange or posting, including, without limitation, “Tweeting,” “tagging,” “posting,” “sharing,” “liking,” “re-posting,” or any other similar form of social media communication on any social media site, service, platform, or application; as well as any other form of modern-day communication or method of disseminating information, including, without limitation, through the use of photographs, video, blogging, reproduction, summaries, posting reviews, and/or copies. Customer further hereby acknowledges, covenants, and agrees that any breach of this Section shall be considered a material breach of these Terms and Conditions and shall subject RUSH DIESEL & AUTOMOTIVE to immediate irreparable injury, thereby entitling RUSH DIESEL & AUTOMOTIVE to immediately seek relief from a court of competent jurisdiction. Such relief may include, without limitation: (a) immediate injunctive relief (including, without limitation, restraining, restricting, removing, and/or otherwise limiting any such breach, its effects, and/or the means of its communication); (b) financial compensation for any harm caused by any such breach; and (c) any other further relief as a court of competent jurisdiction may deem appropriate and proper. In the event of any such breach of this Section, Customer shall be obligated to pay RUSH DIESEL & AUTOMOTIVE all RUSH DIESEL & AUTOMOTIVE’s costs and expenses incurred in enforcing the terms and provisions of this Section (including, without limitation, court costs, expenses, and attorneys’ fees).

COMMUNICATION CONSENT; USE OF CUSTOMER DATA.
RUSH DIESEL & AUTOMOTIVE may use information Customer provides RUSH DIESEL & AUTOMOTIVE, including but not limited to email addresses, cell phone numbers, and landline numbers (“Customer Data”) to contact Customer for purposes related to this account, including debt collection, and for marketing and sales purposes. Customer also authorizes RUSH DIESEL & AUTOMOTIVE and its affiliates to use and disclose Customer Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer. In addition, Customer Data and vehicle maintenance service and repair information arising from or created as a result of maintenance and repair services provided by RUSH DIESEL & AUTOMOTIVE to Customer, including vehicle owner information, vehicle identification numbers, and vehicle specifications (“Vehicle Repair Data”), may be provided to vehicle/component manufacturer(s) and the vehicle/component manufacturer(s) dealers, and their respective service management platform providers (“Maintenance Third Parties”) and used by RUSH DIESEL & AUTOMOTIVE and such Maintenance Third Parties to support and enhance vehicle repair services provided to RUSH DIESEL & AUTOMOTIVE and its customers, to improve service quality, and to enhance the Customer experience, including without limitation product recommendations, offers, coupons, and service notifications.