ORDER FORM
TERMS & CONDITIONS
These Terms and Conditions (“Terms”) apply to and are incorporated by reference, as identified on the face of the Order Form by and between Booster Fuels, Inc. (“Booster”) and the Customer (“Customer”). If a Mobile Fueling Services Agreement between the Parties exists and is currently in place, the terms and conditions of such Agreement shall prevail over these terms and conditions. These Terms are effective as of the “Effective Date” of the first Order Form, or similar form referencing or otherwise incorporating these Terms, between Booster and Customer. Booster and Customer are referred to herein individually as a “Party” and collectively as the “Parties.”
1) Services. Booster will provide services to Customer, commencing on an agreed date (“Initial Service Date”), at a designated Fueling Site (“Services”), as set forth in the applicable Order Form(s) (each, an “Order Form”) to be mutually agreed upon and incorporated by reference into these Terms.
2) Term. The term of these Terms will commence on the Effective Date and continue until terminated (the “Term”). Either Party may terminate these Terms for any or no reason by providing the other Party with thirty (30) days written notice (email notice will suffice).
3) Exclusivity. For the duration of the Term, Booster will be the exclusive provider of services that are similar or identical to the Services at the Fueling Sites identified in Order Forms, and no other person or entity may provide the same or similar fueling services at such Fueling Sites
4) Price. The price of fuel and all applicable service/Service Charges for each Fueling Site are to be specified in the applicable Order Form(s). On the one-year anniversary of the Effective Date (and each anniversary thereafter), all such service/delivery fees (but not the price of fuel) will automatically increase by 3%.
5) Payment Terms.
a) Payment for Services is due by Customer in the time frame indicated in Booster’s invoice. Any Customer dispute or claim (including claims regarding quality, quantity, or delivery) on any order, invoice or payment must be presented to Booster in writing within 20 days of the invoice date, or the claim will be deemed waived, and time barred. Any amount payable to Booster pursuant to an invoice not received 5 days after the due date (“Delinquent Amount”) will be subject to a monthly fee (“Late Fee”) in an amount equal to 1.5% of the Delinquent Amount per month, or 18% of the Delinquent Amount per annum, whichever is higher. Customer agrees that this is not interest on a loan, but rather a late fee which Customer agrees is reasonable to defray the expenses incurred by Booster incidental to the administration, processing, and collection of the Delinquent Amount.
b) In addition, for Services that are purchased by a fuel card, Customer expressly agrees that Booster is permitted to invoice and charge Customer’s fuel card the applicable fees, applicable taxes, and any other charges that Customer may incur with Booster in connection with use of such Service. If the provided card is unable to be charged for any reason, the Customer will be notified of the issue. Inability to charge the card after 3 days of that initial notification will result in a pause of Service on the affected vehicle until the issue is resolved. If after 30 days, Booster is still unable to collect the funds owed for fuel card charges, the Customer will be obligated to pay Booster using a different payment method other than the fuel card (i.e., AMEX, VISA/MC, or Check)
6) Invoicing. Booster will generate separate invoices for each individual Fueling Site specified in the applicable Order Form. Invoices will be issued periodically via electronic delivery.
7) Taxes. All local, state, and federal excise, sales, and use taxes relating to the fuel and Services sold to Customer, when applicable, will be borne by Customer. To the extent that any additional applicable taxes, license fees, inspection fees, environmental fees or other charges are imposed by any governmental or regulatory authority or agency on, or measured by, gross receipts from any fuel or Services sold hereunder, or levied on the production, manufacture, transportation, sale, delivery or levied on volumes sold or delivered, or other handling of fuel under these Terms, Customer will reimburse Booster for such additional taxes, fees and charges. Failure of Booster to add any such tax, fee or charge to an invoice will not relieve Customer from liability, therefore. Customer will reimburse Booster for any interest and/or penalty assessed by any governmental or regulatory authority or agency when the penalty and/or interest is assessed as the result of false, incorrect, or delinquent certification(s) made to Booster by Customer.
8) Access. Prior to the Initial Service Date, Customer will provide Booster access to each Fueling Site to conduct an on-site inspection. To enable Booster to perform the Services, Customer will provide Booster with timely and necessary access to all Fueling Sites and vehicles. Failure to provide such access will result in Customer owing all applicable service and Service Charges (as specified in the applicable Order Form) for each visit when access is denied. Customer represents and warrants that (a) it has full legal right and authority to enter these Terms, (b) it has secured all required permits and permissions from all applicable private parties to enable Booster to perform the Services at each Fueling Site, and (c) each Fueling Site and vehicle will be in a condition that is safe for Booster’s personnel and equipment to perform the Services. Booster represents and warrants that it has secured all required permits and permissions from all applicable governmental agencies to enable Booster to perform the Services at each Fueling Site. Notwithstanding the foregoing, Booster reserves the right to subcontract delivery of fuel to each Fuel Site at its discretion.
9) Confidentiality. Customer and its representatives will (a) protect and keep confidential the existence and details of these Terms and any other information obtained from Booster in connection with these Terms or the Services, (b) use such information only for the purpose of doing business together under these Terms and (c) return all such information to Booster promptly upon the termination of these Terms. Customer agrees that Booster may use Customer’s name and logo for general marketing and public relations purposes, including listing Customer in Booster’s customer lists, website and pitch decks.
10) Force Majeure. Except for the obligation to make payments herein, neither party will be liable for delays in delivery or performance of its obligations, or for failure to deliver or perform its obligations under these Terms due to a cause or circumstances beyond its reasonable control, including, an act of nature (including weather conditions that interrupt Booster’s Services), act of civil, government, or military authority, act of terrorism, governmental priority, strike or other labor disturbance, flood, fire, explosion, epidemic, pandemic or other public health emergency, other hostilities, or failure of the Internet (not resulting from the actions or inactions of such party). The party claiming excuse because of force majeure will use commercially reasonable efforts to promptly correct such failure or delay in performance and will promptly notify the other party to these Terms of any delay or failure to perform which may be excused by this provision, which notification will also specify the expected date of resumption of performance. In the event of any such delay, the date of performance will be extended for a period equal to the time lost by reason of the delay.
11) Limited Warranty. Booster warrants that the Services provided hereunder will be performed in accordance with generally accepted standards for the industry to which the Services relate. Booster’s sole obligation and Customer’s exclusive remedy for any breach of this warranty is limited to Booster’s reasonable commercial efforts to correct the non-conforming Services (and repair any damage to property resulting therefrom) at no additional charge to Customer. Booster’s obligations hereunder for breach of warranty are conditioned upon Customer notifying Booster of such breach (within 48 hours of the incident) in writing and providing Booster with reasonable evidence of such non-conformity to enable Booster to reproduce and/or verify the same. THE FOREGOING REMEDY IS CUSTOMER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THIS LIMITED WARRANTY.
12) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11, THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE” AND BOOSTER DISCLAIMS AND MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED, AND BOOSTER SHALL NOT BE LIABLE TO CUSTOMER IN THE EVENT THAT THE USE OF ADMINISTRATIVE, PHYSICAL, AND TECHNICAL SAFEGUARDS (INCLUDING FIREWALLS, ENCRYPTION, OR OTHER SIMILAR TECHNOLOGY OR TECHNIQUES) FAILS TO PREVENT UNAUTHORIZED THIRD-PARTY ACCESS TO CUSTOMER DATA.
13) Exclusion of Certain Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF IT HAS NOTICE THAT THOSE KINDS OF DAMAGES MAY OCCUR
14) Limitations. EXCEPT FOR BREACH OF SECTION 9, EACH PARTY’S ENTIRE AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE), ARISING OUT OF THE PROVISION OF SERVICES UNDER THESE TERMS WILL NOT EXCEED THE GREATER OF (i) $100,000 OR (ii) THE TOTAL OF SERVICE/SERVICE CHARGES PAID OR PAYABLE TO BOOSTER (AND EXCLUDING ALL AMOUNTS PAID FOR FUEL), WHETHER BY A PAYMENT CARD OR DIRECTLY BY CUSTOMER, UNDER THESE TERMS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST OF THE EVENTS GIVING RISE TO LIABILITY.
15) Governing Law; Venue; Jurisdiction. These Terms are governed by the substantive Laws of the state of California, excluding its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Any dispute arising under, in connection with, or incident to these Terms or about its interpretation will be resolved exclusively in the state or federal courts covering San Mateo, California. Customer irrevocably submits to those courts’ venue and jurisdiction. Customer waives all defenses of lack of personal jurisdiction and forum non-conveniens.
16) Insurance. Each Party agrees that for the duration of the Term it will carry customary insurance with policies and limits consistent with industry standards.
17) Assignment. Customer will not assign any part or all of these Terms or any related Order Form without Booster’s prior written consent. Any attempt by Customer to assign in violation of this Section is void in each instance.
18) Entire Agreement; Precedence; Amendment. These Terms, together with all Order Forms and other attachments which are incorporated in and made a part of these Terms, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements, understandings, and discussions regarding such subject matters. Booster may modify these Terms from time to time by providing written notice to Customer of the modified terms. Customer’s acceptance of Services following receipt of such written notice will be deemed acceptance of all such modifications to these Terms. In these Terms, the words “including” and “include” mean “including, but not limited to.”
19) Notice. Any notice under these Terms will be given in writing and emailed to the respective Parties at their addresses set forth in the most recently approved Order Form