NOTICE
When notice is required to be given in the Contract, notice shall be in writing and shall be deemed to have been received at the time delivered in person; at the time of transmission if sent via email; and within three (3) business days of being placed in the US Mail (as evidenced by the post mark).
INSURANCE
Modification of factory-installed components and/or settings, such as the Work, may impact your automobile insurance. Consult with your insurance provider.
For the duration of the Contract, Customer shall keep in full force automobile coverage and limits as required under Alabama law.
SUCCESSORS AND ASSIGNS
Customer shall not assign the Contract without prior written consent of Overland.
TERMINATION OF THE CONTRACT
Termination by Overland
Overland may terminate the Contract for any reason. Overland may, upon three (3) days written notice to Customer, terminate the Contract, and Customer shall pay Overland for all Work executed. Payment shall be made by Customer to Overland at the time the Vehicle is scheduled for pick up at Overland and before Overland returns possession of the Vehicle to Customer.
Termination by Customer
Customer may terminate the Contract for any reason. Customer may, upon three (3) days written notice to Overland, terminate the Contract. Should Customer do so, Overland shall cease Work, and except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and/or purchase orders and enter into no further subcontracts and purchase orders.
Customer shall pay Overland for all Work executed; all materials purchased through the date of termination; and costs incurred by reason of the termination, including costs attributable to termination of subcontracts. Payment shall be made by Customer to Overland at the time the Vehicle is scheduled for pick up at Overland and before Overland returns possession.
DISPUTE RESOLUTION
In the event of a dispute arising out of or related to the Contract, the parties shall submit in good- faith to non-binding mediation with a mediator regularly mediating matters pending in or that would be filed in the Birmingham Division of Jefferson County, Alabama and who is mutually agreed upon by the parties as a condition precedent to either party filing any legal action against the other.
The mediator’s fees shall be shared equally between the parties. The party requesting mediation shall notify the other party in writing via email or U.S. Mail of the request for mediation and shall include a detailed explanation of the reason(s) for the dispute. In the event the other party does not respond to said request within ten (10) business days of its receipt, or otherwise refuses to comply with the provisions of this section, the condition precedent contained in this section shall be considered fulfilled, and the party requesting mediation may proceed with legal action.
Disputes regarding the payment of funds owed pursuant to CONTRACT SUM, PAYMENT, and TERMINATION OF THE CONTRACT are specifically excluded from the requirements of this section.
In the event litigation becomes necessary to collect funds owed under the Contract, Overland shall, in addition to damages, be entitled to reimbursement from Customer for all attorney fees, costs, and expenses related to said litigation.
GOVERNING LAW, FORUM, AND VENUE
The validity, interpretation, enforcement, and effect of this Contract shall be governed by, and construed in accordance with, the laws of the State of Alabama, excluding Alabama’s choice of law rules. The terms of the Contract shall not be more strictly construed against one party than the other party regardless of which party drafted the Contract. Any legal action or proceeding, whether sounding in contract, tort, or otherwise, shall be brought in and resolved by a court of competent jurisdiction located in the Birmingham Division of Jefferson County, Alabama, and Customer consents and submits to the personal jurisdiction of such court.
REPRESENTATIONS
Customer is the owner of the Vehicle.
The Vehicle is in good working order.
WAIVER AND RELEASE
Customer acknowledges, accepts, and assumes the risks associated with ECU/TCU testing and tuning, including, but not limited to, the following:
Testing and tuning will push the Vehicle to its mechanical limits.
If the Work cannot be completed due to the Vehicle not being in good working order, the Initial Payment will be forfeited.
Modifications to the Vehicle’s engine, transmission, and/or other components of the Vehicle’s power train resulting in replacement of original equipment manufactured parts on the Vehicle may place additional stress upon the Vehicle not intended in the manufacturer’s engineering design.
ECU/TCU tuning may eliminate built-in safeguards in the Vehicle’s original engine and transmission software and settings.
The Vehicle’s engine may fail.
“Bricking” of the Vehicle’s ECU may occur.
ECU/TCU tuning may void the manufacturer’s warranties of the Vehicle.
Performing diagnostic and performance testing of the Vehicle when tuning may result in catastrophic damage to the Vehicle, including, but not limited to, damage to power train components; damage to internal engine components such as valves, pistons, connecting rods; transmission failure; drive shaft breakage; clutch damage; and suspension damage.
Overland does not change or manipulate any emissions-related testing or any emissions-related vehicle equipment. Likewise, Overland does not change or manipulate the Vehicle’s check-engine-light related to emissions.
Customer agrees to not copy, distribute, dismantle, or disseminate.
Customer agrees that this is not being purchased for competitor usage.
Customer assumes all risks associated with the Work on the Vehicle, including, but not limited to, those listed above.
The customer alone bears the cost to repair and/or replace components of the Vehicle or the Vehicle itself for any damage due to the Work.
Customer waives and releases Overland from any and all claims, actions, causes of action that Customer has now or may have in the future arising out of or in any way connected or related to, directly or indirectly, the Work.
Customer agrees to defend, indemnify, and hold harmless Overland, including members, agents, servants, and employees, from any and all demands, actions, causes of action, claims, and liabilities, losses, or damages, including attorney’s fees and costs, of a third party arising from or related to the Work on the vehicle.
Customer acknowledges that s/he has read this entire Contract (and attachments) and has signed her/his name with a full and complete understanding of the terms and conditions of the present and future legal effect of these documents. This Contract has been freely negotiated with the opportunity for the advice of counsel. Customer executes this Contract voluntarily and free of duress or any other encumbrance.
LIMITATION OF LIABILITY; ACTIONS
IN NO EVENT SHALL SELLER BE LIABLE UNDER THIS AGREEMENT TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING FROM THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements or communications between the parties, whether written, oral, electronic, or otherwise. No change or modification to this Agreement shall be valid unless in writing and signed by an authorized representative of each party. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
DISCLAIMER OF WARRANTIES
YOU UNDERSTAND THAT OVERLAND IS NOT OFFERING ANY WARRANTIES AND THERE ARE NO WARRANTIES OF ANY KIND. OVERLAND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTEIS OF PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL OVERLAND BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER.
WAIVER OF RIGHT TO TRIAL BY JURY
CUSTOMER WANTS TO AVOID ADDITIONAL TIME AND EXPENSE RELATED TO A JURY TRIAL SHOULD THERE BE A DISPUTE BETWEEN CUSTOMER AND OVERLAND. CUSTOMER THEREFORE WAIVES THE RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY PERTAINING TO THE CONTRACT WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BY A JUDGE SITTING WITHOUT A JURY. CUSTOMER HAS READ THESE PROVISIONS AND VOLUNTARILY AND FREELY GIVES THIS WAIVER.
