AUTOMOTIVE PERFORMANCE GROUP
TERMS & CONDITIONS FOR CUSTOM VEHICLE MODIFICATION
These Terms & Conditions for Custom Vehicle Modification (“Agreement”) shall control and govern the relationship between APG, LLC, a California limited liability company (“APG”) and the Customer (“Customer”).
1. Appointment and Acceptance. Customer retains and appoints APG to provide custom modification services to Customer’sunder vehicle (“Vehicle”) described on APG’s Vehicle Check-In and Exterior Inspection Report, pursuant to the terms and specifications (“Specifications”) described on APG’s Estimate (“Services”). APG accepts such appointment and agrees to act in such a capacity as described in this Agreement and to be bound by all terms herein.
2. Title. Customer represents and warrants to APG that the Vehicle is titled in Customer’s name and that Customer will be responsible for improvements made to the Vehicle. APG reserves the right at all times to require proof of ownership of the Vehicle from Customer. Customer shall defend, at its expense, and hold harmless APG and its customers, vendors, distributors, agents, employees, and dealers from all claims, suits, liabilities, damages, costs, attorney’s fees, or expenses arising out of any and all claims, actions or proceedings brought against them relating to or arising from Customer’s ownership or lack of ownership of the Vehicle.
3. Garageman’s Lien. Payment by Customer for the Services shall be secured by, and APG shall be entitled to, a Garageman’s Lien against the Vehicle pursuant to Cal. Civil Code section 3068. Customer shall be entitled to retake possession of the Vehicle only upon payment in full of all outstanding balances owed to APG.
4. Services. The Services to be provided by APG shall be described in APG’s Estimate, which is incorporated herein by reference, and the terms therein, including without limitation, pricing, payment schedule, delivery schedule and cancellation terms, shall be binding on Customer.
5. Risk of Loss; Insurance. Customer accepts all risks of loss to the Vehicle at all times while the Vehicle is at APG’s facilities and prior to the time Customer takes possession of the Vehicle. It is the sole responsibility of Customer to maintain adequate insurance coverage protecting against loss to the Vehicle while at APG’s facilities.
6. Ownership of Materials. Customer acknowledges and agrees that APG is the exclusive owner of all right, title and interest in and to APG’s registered and unregistered marks, which include, without limitation, the name "Automotive Performance Group," “APG” and certain other service marks, trademarks, trade dress and other commercial related symbols. Customer is not authorized to and shall refrain from entering into any relationship with, or sponsorship or endorsement arrangement concerning, any third party individual or entity where such relationship results in, involves, or purports to permit, the use or display by such third party of APG’s name, or in connection with the offering or promotion of such third party's products, services, programs, beliefs or causes. Notwithstanding the foregoing, Customer is entitled to the use the markings “Automotive Performance Group”, “APG” and other trademarks, service marks, slogans, designs and artwork of APG applied to the Vehicle or any parts therein, and only in the manner and form designed by APG.
7. Limited Warranty. APG WARRANTS THAT SERVICES RENDERED TO THE VEHICLE SHALL BE AS DESCRIBED IN APG’S ESTIMATE ACCEPTED BY CUSTOMER AND THAT ALL SERVICES DELIVERED BY IT TO CUSTOMER SHALL BE FREE FROM DEFECTS IN WORKMANSHIP FOR A PERIOD OF TWELVE (12) MONTHS FROM DATE OF DELIVERY, BUT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND SUCH DESCRIPTION. IN ADDITION, APG WARRANTS THAT ANY PARTS OR MATERIALS THAT ARE MANUFACTURED BY APG SHALL BE FREE FROM DEFECTS. APG DOES DISCLAIMS ANY WARRANTY PERTAINING TO THE CONDITION, WORKMANSHIP OR UTILITY OF ANY PARTS OR MATERIALS OBTAINED FROM THIRD PARTIES, AND APG HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTY WHICH MIGHT OTHERWISE ARISE FROM THE COURSE OF DEALING BETWEEN THE PARTIES THERETO OR FROM ANY USAGE OF TRADE.
During the warranty period, APG will, at its option: (1) repair any matters of workmanship that are deemed defective; or (2) replace any APG-manufactured parts that are deemed defective; or (3) refund the amount the Customer paid for any workmanship or APG-manufactured parts that are deemed defective. The Customer must assist APG in diagnosing issues with the Vehicle and follow APG’s warranty processes. If APG determines the Services require repair or replacement, the Customer will be required to deliver the Vehicle to APG’s facility at Customer’s expense.
THIS LIMITED WARRANTY DOES NOT COVER ANY INCIDENTS OR DAMAGES WHICH ARISE BY REASON OF OFF ROADING, MISUSE OR MINOR IMPERFECTIONS WITHIN DESIGN SPECIFICATIONS OR WHICH DO NOT MATERIALLY ALTER QUALITY, FUNCTIONALITY OR DESIGN. APG DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR DAMAGES CAUSED BY OFF ROADING, MISUSE, ABUSE, ACCIDENTS, UNAUTHORIZED REPAIR OR CLEANING, OR THE COMBINATION OF APG’S SERVICES WITH OTHER PRODUCTS OR SERVICES, ALL OF WHICH SHALL VOID APG’S LIMITED WARRANTY HEREUNDER.
APG MAKES NO REPRESENTATIONS WHATSOEVER CONCERNING ANY EFFECT THE SERVICES MAY HAVE ON THE VEHICLE MANUFACTURER’S WARRANTY. IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO VERIFY WITH THE VEHICLE MANUFACTURER THE EFFECT APG’S SERVICES MAY HAVE ON ANY WARRANTY, INCLUDING POTENTIAL VOIDING OF ANY MANUFACTURER’S WARRANTY. IN ADDITION, APG’S SERVICES TO THE VEHICLE MAY RENDER THE VEHICLE IN VIOLATION OF FEDERAL, STATE OR LOCAL EMISSIONS STANDARDS, TRAFFIC REGULATIONS, PRIVATE AUTOMOBILE INSURANCE POLICY, OR DOT REGULATIONS. CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY IN CONNECTION WITH THE FOREGOING.
8. Limitation of Liability. APG’s aggregate liability for any direct damages under this Agreement shall not exceed the price of the Services with respect to which the damages occurred. IN NO EVENT SHALL APG BE LIABLE TO THE CUSTOMER (OR ANY THIRD PARTY) FOR LOSS OF PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR OBLIGATIONS UNDER THIS AGREEMENT, NOR WILL APG BE LIABLE FOR ANY DAMAGES CAUSED BY FAILURE OR DELAY IN PROVIDING THE SERVICES TO THE CUSTOMER.
9. Publicity. Customer grants to APG the perpetual, royalty-free right and license to publicize APG’s Services and the Vehicle, including photographs, video and other media, in all advertising and marketing materials of APG, including without limitation, catalog(s), web site(s), social media account(s) and promotional material(s).
10. Assignment; Binding Effect. Customer shall not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without obtaining the prior consent of APG. Subject to the foregoing, all of the provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties to this Agreement and their respective heirs, legal representatives, successors and assigns.
11. Amendment; Waiver. This Agreement may be amended, modified or superseded only by a written instrument signed by APG and Customer. APG shall not be deemed to have waived compliance of any provision of this Agreement unless such waiver is contained in a written instrument signed by APG and no waiver that may be given by APG will be applicable except in the specific instance for which it is given. The failure of APG to enforce at any time any of the provisions of this Agreement or to exercise any right or option contained in this Agreement or to require at any time performance of any of the provisions of this Agreement by the Customer shall not be construed to be a waiver of such provisions and shall not affect the validity of this Agreement or any of its provisions or the right of APG thereafter to enforce each provision of this Agreement. No course of dealing shall operate as a waiver or modification of any provision of this Agreement or otherwise prejudice APG’s rights, powers and remedies.
12. Jurisdiction; Venue. Any claim, dispute or action arising out of relating in any way to the formation, validity, interpretation, performance or termination of this Agreement shall be brought in a court of competent jurisdiction, whether State or Federal, located in Orange County, California. In connection with any such proceeding, the Customer (a) irrevocably consents and submits to the personal jurisdiction of the State and Federal courts located in Orange County, California and waives any objection based on purported lack of personal jurisdiction in such court; (b) irrevocably waives any objection which the Customer may have at any time to the laying of venue of any such proceeding in any such court in Orange County, California; and (c) irrevocably waives any claim that any such proceeding brought in any such court in Orange County, California has been brought in an inconvenient forum.
13. Construction; Interpretation. The following provisions shall apply to the construction and interpretation of this Agreement:
(a) Section titles or captions in this Agreement are included for purposes of convenience only and shall not be considered a part of this Agreement in construing or interpreting any of its provisions. All references in this Agreement to Sections shall refer to Sections of this Agreement unless the context clearly otherwise requires;
(b) When used in this Agreement, the word “including” shall have its normal common meaning and any list of items that may follow such word shall not be deemed to represent a complete list;
(c) The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement;
(d) Unless the context otherwise requires, when used in this Agreement, the singular shall include the plural, the plural shall include the singular, and all nouns, pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, as the identity of the person or persons may require;
(e) The parties do not intend that this Agreement shall confer on any third party any right, remedy or benefit or that any third party shall have any right to enforce any provision of this Agreement; and
(f) This Agreement shall be governed by, and the terms hereof shall be construed and enforced in accordance with the laws of the State of California without giving effect to any conflict of law, rule or principle of such state.
14. Force Majeure. APG shall not be liable for any delay in or impairment of performance resulting in whole or in part from any unforeseen circumstances, accidents, embargoes, war or hostilities, invasion, rebellion, insurrection, riot, strike, lockout, pandemic, acts of God, or any other causes beyond its control.
15. Severability. If a court holds any provision of this Agreement or its application to any person or circumstance invalid, illegal or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it was held to be invalid, illegal or unenforceable, shall not be affected, and shall be valid, legal and enforceable to the fullest extent permitted by law, but only if and to the extent such enforcement would not materially and adversely frustrate the parties’ essential objectives as expressed in this Agreement. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties intend that the court add to this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be valid and enforceable, so as to effect the original intent of the parties to the greatest extent possible.
16. Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties related to its subject matter and supersedes all prior proposals, understandings, agreements, correspondence, arrangements and contemporaneous oral agreements relating to the subject matter of this Agreement. No representation, promise, inducement or statement of intention has been made by any party which has not been embodied in this Agreement.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement.
18. Acknowledgment. By signing the Estimate, the Customer represents and warrants to APG that (a) the correct name of the Customer is set forth on the Estimate, (b) the individual executing the Estimate has the requisite authority to do so and fully bind the Customer, (c) the Vehicle is owned and titled in the name of the Customer, and (d) the Customer acknowledges that he/she/it has read, understands and agrees to the terms and conditions contained in this Agreement.