Combined Terms & Conditions: Terms of Use, Marketplace, Auction, Parts

CUSTOM TRUCK ONE SOURCE, INC. WEBSITE TERMS OF USE
Last Modified: April 1, 2021

Welcome to our website. Custom Truck One Source, Inc. (the “Company,” “we” or “us”), owns and operates this website, www.customtruck.com (the “Website”). By using this website, you agree to comply with and be bound by the following terms and conditions of use (the “Terms of Use”). Please review these Terms of Use carefully. Use of the Website indicates your consent to be bound by the Terms of Use.

1. Terms of Use. This Terms of Use specifies the terms and conditions for access to and use of the Website and describe the terms and conditions applicable to your access of and use thereof.

2. Changes to the Terms of Use. We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. You can view the most recent version of these terms at any time at www.customtruck.com. Each use by you shall constitute and be deemed your unconditional acceptance of the Terms of Use.

3. Privacy. Your visit to our website is also governed by our Privacy Policy, which can be found at www.customtruck.com/privacy.

4. Ownership and Use of Content.

(a) The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, graphics, displays, images, user and visual interfaces, specifications, certifications, technical guidelines, catalogs, Tools (as defined below), data, video, audio, and other Company materials contained herein, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement thereof (herein, the “Content”), are owned by the Company, its licensors, or other third party providers of such Content and are protected by United States, Canada, Mexico and other international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Any copying, redistribution, uploading, posting, mirroring (to any other computer, server, website or other medium, public display), republication, transmission, sale, incorporation into derivative works, or other distribution by you of any such Content or any part of the Website is prohibited, except as expressly permitted in these Terms of Use. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Website.

(b) Because the Company has locations throughout at least one of the United States, Canada and Mexico, the Company makes no claims that this Website and its Content are appropriate or may be downloaded outside of the location in which the Company has locations. Access to the Content may not be legal by certain persons or in other countries, so if you access the Website from outside the Company’s location, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

(c) With respect to users located in Canada, the parties to these Terms of Use confirm their express wish that these Terms of Use, as well as all other documents related to it, including but not limited to all confirmations, notices, waivers, consents and other communications be in the English language.

(d) You may not generally download or print Content, although you are permitted to download or print no more than one (1) copy of the Company’s catalogs for your internal business use and reference, so long as you include all copyright and proprietary rights notices.

5. Trademarks. The Company name, the Company logos, trademarks (whether issued or applied for), service marks, and all related names, logos, trade dress, products and service names, designs, and slogans are the intellectual property of the Company or its affiliates or licensors. Use of marks without the prior written permission of the Company is expressly prohibited. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

6. Intended Audience. This Website is intended for adults only. This Website is not intended for any user under the age of 18. Certain sections of this Website are intended for particular audiences including the Company’s employees, customers, and shareholders, as well as the general public.

7. Website Use.

(a) The Company grants you a limited, revocable, nonexclusive license to use this Website solely for your own personal use. By using the Website, you agree not to use the Website in violation of any applicable laws, not to use it for insertion of your own or a third party’s advertising, branding or other promotional content, nor to infringe or violate any third party rights, or employ any device intended to disable or impair the Website’s operation.

(b) You agree not to copy materials on the Website, reverse engineer or break into the Website, or use materials, products or services in violation of any law. The use of this Website is at the discretion of the Company and the Company may terminate your use of this Website at any time.

(c) Unless and to the extent that products or services are sold directly through this Website, such as through the use of a Tool, any cost estimates provided herein, including through use of a Tool, are simply estimates and should not be relied upon as a quotation or offers by the Company to sell any of such products or services to you.

8. Use of Tools. You agree that any use by you of the functionality and tools provided herein, including for engineering specifications or designs through web-based applications, should be utilized for the sole purpose of identifying potential products or services (except for any Tools through which products or services are intended to be sold directly) and should not be relied upon without independent verification by a licensed professional engineer or contractor. You also represent and warrant that you own or otherwise possess the right in and to any information that you provide in connection with your use of any such Tool.

9. Compliance with Laws. You agree to comply with all applicable laws regarding your use of the Website. You further agree that information provided by you is truthful and accurate to the best of your knowledge.

10. Product and Services Availability. This Website has been established primarily for the benefit and use of Company’s dealers, suppliers, customers and potential customers. Not all products or services referred to may be available, and the Company may change or discontinue the product or service described by this Website at any time. This Website may include inaccuracies, and the information in this Website may be changed periodically. Check with [a representative of the Company] before relying on any product-related information or service-related information found in this Website.

11. Indemnification. You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use or misuse of the Website, including, but not limited to, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.

12. Disclaimer of Warranties. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, ANY OF THE TOOLS MADE AVAILABLE HEREIN, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13. Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms of Use that directly conflict with such laws may not apply to you.

14. Links from the Website. If the Website contains links to other websites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those websites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and are subject to the terms and conditions of use for such websites.

15. Use of Information. You understand and agree that any submission by you of any ideas, suggestions, concepts, methods, systems, designs, plans, techniques, business information, inventions or other information relating to the Company’s products or services is on a non-confidential basis, and by doing so you represent and warrant that you own or have a license to use such information, and, further, grant the Company an unrestricted, irrevocable, perpetual, sublicensable, and royalty free license to use, reproduce, display and transmit such information. The Company reserves the right, and you authorize us, to use and assign all information regarding Website uses by you and all information provided by you in any manner consistent with our Privacy Policy, found at www.customtruck.com/privacy, incorporated by reference.

16. Forward Looking Statements. Certain statements in the Content or on the Website are forward-looking statements that relate to future events, expectations, trends and operating periods involve certain factors that are subject to change, and important risks and uncertainties that could cause actual results to differ materially. Some of these risk and uncertainties could affect particular lines of business, while others could affect all of the Company’s businesses. The Company, except as required by law, undertakes no obligation to update or revise its outlook, whether as a result of new developments or otherwise. Further information concerning the Company and its businesses, including factors that could potentially materially affect the Company’s financial results, is included in the Company’s filings with the SEC including the Company’s most recent annual report on Form 10-K and quarterly reports on Form 10-Q.

17. Applicable Law. Regarding users in the United States, you expressly agree that all matters relating to the Website and to these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction). You further agree and consent to the exercise of exclusive subject matter and personal jurisdiction, regarding any dispute with the Company, or in any way relating to your use of the Website, in any state of federal court in Allen County, Indiana in connection with any such dispute.
Regarding users in Canada or in Mexico, you expressly agree that all matters relating to the Website and to these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by the internal substantive laws of Ontario, Canada or of Mexico, as the case may be, without giving effect to any choice or conflict of law provision or rule. You further agree and consent to the exercise of exclusive subject matter and personal jurisdiction, regarding any dispute with the Company, or in any way relating to your use of the Website, in the courts of the City of Toronto, Ontario or of Mexico City, Mexico, as the case may be.

18. Waiver and Severability. No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or a provision under these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Use will continue in full force and effect.

19. Termination. The Company may terminate these Terms of Use at any time, with or without notice, for any reason.

20. Relationship of the Parties. Nothing contained in these Terms of Use or your use of the Website shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.

21. Entire Agreement. The Terms of Use constitutes the entire agreement between you and the Company and governs the terms and conditions of your use of the Website, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and the Company with respect to this Website. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when you use the website. The Company may revise these Terms of Use at any time by updating these Terms of Use and posting it on the Website. Accordingly, you should visit the Website and review the Terms of Use periodically to determine if any changes have been made. Your continued use of this Website after any changes have been made to the Terms of Use signifies and confirms your acceptance of any such changes or amendments to the Terms of Use.

CUSTOM TRUCK ONE SOURCE, INC. – MARKETPLACE TERMS OF SALE

 

Last Revised: August 31, 2022

You should carefully read these CUSTOM TRUCK ONE SOURCE, INC. – TERMS OF SALE (“Terms”) before submitting any orders for purchase, as THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AND CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU, including a BINDING ARBITRATION AGREEMENT and CLASS ACTION & JURY TRIAL WAIVER CLAUSE. Except for certain types of disputes described in the Arbitration section below or if prohibited by applicable law, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.

 

Section 1 – Scope and Application

• These Terms are between you and Custom Truck One Source, Inc., also known as Custom Truck (collectively, “Custom Truck”, or “us” or “we” or “our” as required). THESE TERMS APPLY TO ALL OFFERS, SALES, AND PURCHASES OF ALL PRODUCTS OR VEHICLES (“PRODUCTS” or “VEHICLES”)) THROUGH THE ONLINE ORDER PLATFORM(S) AVAILABLE ON THIS WEBSITE AND ALL OTHER WEBSITES, MOBILE SITES, AND MOBILE APPLICATIONS WHERE THESE TERMS APPEAR OR ARE LINKED (EACH INDIVIDUALLY, A “SITE” AND COLLECTIVELY, THE “SITES”). BY ORDERING ANY PRODUCTS OR VEHICLES THROUGH THE SITES, YOU SIGNIFY YOUR ACCEPTANCE OF AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE ADDITIONAL TERMS, AND ANY ORDER CONSUMMATED THROUGH THE SITE(S) IS CONDITIONED ON YOUR ACCEPTANCE OF THE SAME. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MUST NOT COMPLETE YOUR ORDER.

These Terms are considered a “click-through” agreement and include the Terms of Use governing the Site(s) as well as additional terms included on the Site(s) (the “Additional Terms”). In the event that there is a conflict between these Terms and the Site’s Terms of Use or the Additional Terms, these Terms will supplement or amend the Terms of Use or Additional Terms, but only with respect to the matters governed by these Terms. Although not part of these Terms, please review the Privacy Policy to better understand how you can update, manage, access, and delete your Personally Identifiable Information.

We may update or change these Terms at any time without prior notice in our sole discretion. The latest version of the Terms will be posted on the Site(s).

 

Section 2 – Order Placement, Confirmation and Payment

2.1 When you place an order to reserve, purchase and/or pay for Product(s) or Vehicle(s) through the Site(s) (an “Order”), you agree that your Order is an offer to purchase or reserve the Product(s) listed in your order. Availability of the Product(s) on the Site(s) is not guaranteed. If a Product is not available by the time your Order processes, we will notify you of this via email. Orders placed on Saturdays, Sundays, or holidays may not process until the following business day.

 

2.2 We reserve the right to cancel or to refuse any Order that you place through the Site(s), including for pricing errors. We may, in our sole discretion, limit or cancel quantities purchased per person, per business, per household or per transaction. These restrictions may include orders placed by or under the same customer account and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the Order was made. We reserve the right to limit or prohibit Orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

 

2.3 Upon placing an Order you will receive an order acknowledgement (the “Order Acknowledgement”) to your registered email detailing the Product(s) ordered which may be automatically generated, but your Order will not be accepted until approval by your chosen payment method is received, at which point you will receive an order confirmation email (the “Order Confirmation”). The confirmation of any Order is expressly contingent on the provision of payment and the execution of any documents provided with the Order Acknowledgement (“Purchase Documents”). ALL ORDERS NOT CONFIRMED BY CUSTOM TRUCK WITHIN 72 HOURS OF THE RECEIPT OF THE ORDER ACKNOWLEDGEMENT MAY BE CANCELED. FAILURE TO PROVIDE AN ACCEPTABLE PAYMENT METHOD WITHIN 72  HOURS OF ORDER ACKNOWLEDGEMENT WILL RESULT (IN CUSTOM TRUCK’S SOLE DISCRETION) IN EITHER (A) CANCELLATION OF YOUR ORDER AND CANCELLATION OF THE RESERVATION OF THE VEHICLE/PRODUCT; OR (B) ADDITIONAL FEES ASSESSED AGAINST YOUR ACCOUNT, INCLUDING A PENALTY OF $1000, AND CUSTOM TRUCK MAY RESTRICT FUTURE ACCESS TO YOUR ACCOUNT ON THE SITE(S).

 

2.4 Payment or pre-authorization of funds by credit card or other payment methods accepted by Custom Truck is required before an order will be confirmed. BY SUBMITTING SUCH INFORMATION YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARDS OR OTHER PAYMENT METHODS UTILIZED IN CONNECTION WITH ANY TRANSACTION AND YOU GRANT US THE RIGHT TO PROVIDE SUCH INFORMATION TO THIRD PARTIES FOR PURPOSES OF FACILITATING THE TRANSACTIONS INITIATED BY YOU OR ON YOUR BEHALF. You agree to pay all charges that may be incurred by you or on your behalf through the Site(s), at the prices in effect when such charges are incurred including, without limitation, all delivery costs, and you authorize us to charge all sums for the orders that you make to the payment method specified at the time. You shall remain responsible for any taxes that may be applicable to such transactions. You authorize us to charge all applicable amounts for the orders that you make to the payment method specified at the time of placing the Order. In the event payment for an Order will be secured for financing, all financing terms shall be negotiated separately and payment will not be deemed received until funding of such financing is received by Custom Truck. ALL CONFIRMED ORDERS ARE FINAL, NON-CANCELLABLE AND NON-REFUNDABLE.

 

2.5 By accepting these Terms I acknowledge and understand that any and all credit or debit card payments submitted through the Site(s) may be processed by a third party payment processing company (“Payment Processor”) and I shall be subject to any and all terms and conditions of the Payment Processor, including without limitation any additional fees or privacy policies related to my personal information (“Payment Processor Terms”). I acknowledge Custom Truck is not responsible for information, including Personally Identifiable Information, retained by Payment Processor or for any Payment Processor Terms and shall hold Custom Truck harmless from same.

 

Section 3 – Site Content

3.1 Prices displayed on the Site(s) may differ from prices available through other vendors or marketplaces. Prices on the Site(s) are subject to change without notice but will only apply to orders placed after such changes. Prices for Products purchased are those in effect when an order is received and will be set out in the Order Acknowledgment sent to you at the time of purchase. Prices are quoted and will be paid in U.S. dollars. Unless otherwise indicated on the Site(s), prices exclude taxes (if applicable), applicable Buyer’s fees, delivery charges, and optional warranties, all of which are additional and will be itemized in the Order Acknowledgement.

 

3.2 Custom Truck reserves the right to utilize third parties in relation to the development and maintenance of content displayed on the Site(s) (“Third Party Material”). Custom Truck is not responsible for the accuracy of Third Party Material. While every effort is made to ensure the accurate display of Products and Vehicles on the Site(s), the depiction may depend on the viewers monitor or mobile device and may not be accurate. Additionally, the material on the Site(s) may be changed, updated and/or deleted without notice and are subject to correction for technical, clerical or typographical inaccuracies or errors. We do not guarantee the accuracy or completeness of any information contained on the Site(s), including pricing, product images, specifications, or availability and we will not be responsible for any such inaccuracies or errors. We reserve the right to correct any errors, omissions, or inaccuracies, and to change or update information at any time without prior notice (including after you have submitted an order). Orders placed through the Site(s) may be declined or cancelled for any lawful reason, including without limitation, due to the foregoing issues or if a Product is unavailable.

 

Section 4- Retrieval of Vehicle and Delivery

4.1 This Order may only be cancelled prior to Order Confirmation and in accordance with all policies and procedures that may be provided in these Terms, the Order Acknowledgement or Purchase Documents. Following Order Confirmation it is your responsibility to accept delivery of the ordered Vehicle or Products from Custom Truck or arrange for delivery at your own cost within ten (10) business days of such Order Confirmation pursuant to Section 4.3. In the event the ordered Vehicle or Products are not retrieved or delivery accepted within the allotted period of time Custom Truck shall have the right to: (i) retain as liquidated damages any cash deposit made on a Vehicle, and for such other expenses and losses as Custom Truck may incur or suffer as a result of such failure or refusal, including any costs for arranging delivery of the Vehicle or Products to you and/or (ii) charge reasonable storage fees for the Vehicle of $100.00 per day.

 

4.2 Custom Truck shall not be liable for failure to deliver or delay in delivery of the vehicle, accessories, or other parts thereof covered by the Purchase Documents where such failure or delay is due, in whole or in part, to any cause other than the negligence of Custom Truck.

 

4.3 You are entirely responsible for compliance with all applicable local laws and regulations relating to export and import regulations. You may not place an Order through the Site(s) if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government or under similar laws or regulations applicable in other jurisdictions. If you intend to obtain a certificate of title for a Vehicle in a state where Custom Truck is licensed to sell the Vehicle (or is not required to be licensed to sell the Vehicle), you shall accept delivery of the Vehicle at a Custom Truck location in that state, or such other location as Custom Truck may agree. If you intend to obtain a certificate of title for this vehicle in a state where Custom Truck is not licensed to sell the Vehicle (and would have otherwise been required to be licensed to sell the Vehicle), unless Custom Truck otherwise agrees, Custom Truck will coordinate the shipment of this vehicle to purchaser from Kansas City, Missouri. In such case, you hereby authorize Custom Truck, on your behalf, to enter into a shipping contract with a third-party common carrier for the shipment of this vehicle to the physical address set forth on the Purchase Documents, or such other location as you and Custom Truck may agree. You agree that delivery of the Vehicle, including the transfer of title and risk of loss to you, will occur at the time that the Vehicle is loaded onto the common carrier’s transport (i.e., FOB shipping point). The carrier will insure the Vehicle while in transit, and you will be the beneficiary of any claims for damage to the Vehicle or losses occurring while the Vehicle is in the possession of the common carrier. The shipping cost, if required, will either be included in the Order Acknowledgement or Purchase Documents, as a separate line item. The sale of a Vehicle  will be deemed to have occurred in Kansas City, Missouri.

 

Section 5 –Force Majeure

5.1 The Site(s) offers Products and Vehicles for purchase by you. In no event shall we be responsible or liable for any restrictions or limitations to the order placed hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.

 

Section 6 – Custom Truck Product Warranty

• • • Applicable to Vehicles Purchased Without A Written Dealer’s Warranty.
    1. Vehicles purchased through the Site(s) without designation of including a written dealer’s warranty are being sold to you “AS IS” and “WITH ALL ”. Further, the undersigned acknowledges that he is not relying on any representations in purchasing the Vehicle that may have been made by dealer or its agents or employees concerning the condition of the vehicle which are not stated herein. If selling dealer issues a written express warranty or there remains a part of the manufacturer’s warranty which has not expired according to its terms, this provision does not apply.

 

• • 1. The mileage shown on the odometer of any Vehicle for sale through the Site(s) is the approximately the mileage applicable to that Vehicle at the time Custom Truck received the Vehicle (less miles driven for testing and demonstration). However, Custom Truck makes no warranty or representation as to the accuracy of said odometer reading, either express or implied, except that said odometer reading has not been altered by selling dealer, and that dealer has no knowledge that it was altered or disconnected prior to the time this Vehicle came into the Custom Truck’s In consideration of the purchase price stated in the Order Acknowledgment, you hereby release and forever discharge Custom Truck, its officers, directors, employees, agents, successors, and assigns, from any and all claims, causes of action, liability and damages, which may result or develop from the accuracy of the odometer reading, and in the event that a claim is asserted against Custom Truck by a subsequent purchaser of such Vehicle based upon the accuracy of the odometer reading, you agree to indemnity and hold harmless Custom Truck there from. You understand that Custom Truck has no control over what may have been done to the odometer by previous owners and that Custom Truck has no way to ascertain the correctness of the odometer reading. You hereby acknowledge that you have read, understand, and accept all of the provisions of this disclaimer of warranty and release as set forth in this Section 6.1.

 

• • • Applicable to Vehicles Purchased With A Written Dealer’s Warranty.
    1. The only warranties applying to the sale of a Vehicle purchased through the Site(s) are those extended by the manufacturer in an unexpired manufacturer’s warranty, if any so exists, and/or an express written limited warranty extended by selling dealer and delivered to you at the time of delivery of this vehicle. The provisions and terms of such express written limited warranty are those set out in such instrument. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Further, Custom Truck neither assumes nor authorizes any person to assume for it any liability other than that expressed in such instrument. The under- signed acknowledges that he is not relying on any representations herein. Some states do not allow the exclusion or limitation of consequential or incidental damages, so the above limitation may not apply to you. If the Vehicle is sold “as is” and “with all faults,” this provision “a” does not apply.
    2. The mileage shown on the odometer of any Vehicle for sale through the Site(s) is the approximately the mileage applicable to that Vehicle at the time Custom Truck received the Vehicle (less miles driven for testing and demonstration). However, Custom Truck makes no warranty or representation as to the accuracy of said odometer reading, either express or implied, except that said odometer reading has not been altered by Custom Truck, and that Custom Truck has no knowledge that it has altered or disconnected prior to the time a Vehicle came into Custom Truck’s possession. In consideration of the purchase price stated on the Order Acknowledgement, you hereby releases and forever discharge Custom Truck, its officers, directors, employees, agents, successors and assignees, from any and all claims, causes of action, liability and damages, which may result or develop from the accuracy of the odometer reading, and in the event that a claim is asserted against Custom Truck by a subsequent purchaser of such Vehicle based upon the accuracy of the odometer reading, purchaser agrees to indemnify and hold harmless Custom Truck there from You understand that Custom Truck has no control over what may have been done to the odometer by previous owners and that Custom Truck has no way to ascertain the correctness of the odometer reading. You hereby acknowledge that you have read, understand, and accept all of the provisions of this disclaimer of warranty and release as set forth in this Section 6.2.

 

Section 7 – DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILTIY

7.1 TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE SITE, THE INFORMATION AND PRODUCTS/VEHICLES OFFERED ON OR THROUGH THE SITE(S) AND ANY REFERENCED THIRD-PARTY SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SITE(S) MAY CONTAIN LINKS TO OTHER THIRD-PARTY WEBSITES. ANY THIRD-PARTY GOODS OR SERVICE PROVIDERS ARE SUPPLIED AS A CONVENIENCE TO YOU AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. THIRD-PARTY WEBSITES ARE MAINTAINED BY PERSONS OR ORGANIZATIONS OVER WHICH CUSTOM TRUCK EXERCISES NO CONTROL. CUSTOM TRUCK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE CONTENT OR RESULTS FROM YOUR USE OF SUCH THIRD-PARTY WEBSITES. THIS INCLUDES ANY LISTING OF ANY THIRD-PARTY GOODS OR SERVICE PROVIDER INCLUDED IN THE SITE(s).

 

7.2 TO THE FULLEST EXTENT PROVIDED BY LAW, CUSTOM TRUCK DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

 

7.3 TO THE FULLEST EXTENT PROVIDED BY LAW, CUSTOM TRUCK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE(s), CONTENT, OR OTHER POSTED MATERIAL ON THE SITE(S) IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE. BY PROVIDING THE SERVICES ON THE SITE(s), CUSTOM TRUCK N DOES NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. CUSTOM TURCK IS ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE SITE(S) AT ANY TIME, IN ITS SOLE DISCRETION WITHOUT NOTICE TO YOU.

 

7.4 TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL CUSTOM TRUCK, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF THE PURCHASE OF ANY VEHICLE OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms of Use that directly conflict with such laws may not apply to you.

 

Section 8 – Notices

8.1 Unless otherwise specified, please send communications to us under these Terms via email to [email protected]. We may update these Terms by notice on the Site(s).

 

8.2 Notices to you under these Terms may be sent by sending a message to the email address you provide or by posting to the Site(s). Notices sent by email will be effective when sent. Posted notices are effective upon posting. It is your responsibility to keep your email address current.

 

Section 9 – MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER

9.1 Most concerns can be resolved quickly and to your satisfaction by contacting us as set forth in the “Questions” section below.

 

9.2 In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site(s), the Products or Services, or any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.

 

9.3 You and we agree that your use of the Product (s) or Vehicle (s) may involve interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings. If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.

 

9.4 If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.

 

9.5 If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.

 

9.5 If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Site, Product(s), Vehicle(s) and any other actions with us.

 

9.6 You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at [email protected] and including in the subject line “Rejection of Arbitration Provision.”

 

Section 10 – Governing Law and Venue

10.1 These Terms shall be governed by and construed in accordance with the laws of the State of Missouri, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms (including but not limited to if you opt out of the mandatory arbitration provision) shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Kansas City, Missouri, except where the jurisdiction and venue are mandated by applicable assignment. We may freely assign our obligations and rights under these Terms, including all personal information in our possession that we have collected during your use of the Site(s) as further described in our Privacy Policy found at www.customtruck.com/privacy.

 

Section 11 – General

11.1 No amendment to these Terms will be valid unless made in writing and agreed to by Custom Truck. These Terms are the final and integrated agreement between you and us with respect to their subject matter. Custom Truck may freely assign its obligations and rights under these Terms. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated. Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision, and a waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative.

 

Section 12 – Questions

12.1 If you have any questions or comments about these Terms or the Site(s), please contact us by email at [email protected]. You also may write to us at:

Custom Truck One Source, Inc.

Attn: Website Inquiries

7701 E 24 Highway

Kansas City, MO  64125

 

CUSTOM TRUCK ONE SOURCE, INC. – AUCTION TERMS OF SALE

 

Last Revised: March 10, 2023

You should carefully read these CUSTOM TRUCK ONE SOURCE, INC. – AUCTION TERMS OF SALE (“Terms”) before submitting any bids for purchase, as THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AND CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU, including a BINDING ARBITRATION AGREEMENT and CLASS ACTION & JURY TRIAL WAIVER CLAUSE. Except for certain types of disputes described in the Arbitration section below or if prohibited by applicable law, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.

Section 1 – Scope and Application

• These Terms are between you and Custom Truck One Source, Inc., and all affiliates and subsidiaries, also known as Custom Truck (collectively, “Custom Truck”, or “us” or “we” or “our” as required). THESE TERMS APPLY TO ALL OFFERS, SALES, AND PURCHASES OF ALL PRODUCTS OR VEHICLES (“PRODUCTS” or “VEHICLES”) THROUGH THE ONLINE AUCTION PLATFORM(S) AVAILABLE ON THIS WEBSITE AND ALL OTHER WEBSITES, MOBILE SITES, AND MOBILE APPLICATIONS WHERE THESE TERMS APPEAR OR ARE LINKED (EACH INDIVIDUALLY, A “SITE” AND COLLECTIVELY, THE “SITES”). BY PLACING A BID FOR ANY PRODUCTS OR VEHICLES THROUGH THE SITES, YOU SIGNIFY YOUR ACCEPTANCE OF AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE ADDITIONAL TERMS, AND ANY PURCHASE CONSUMMATED THROUGH THE SITE(S) IS CONDITIONED ON YOUR ACCEPTANCE OF THE SAME. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MUST NOT SUBMIT A BID.
• These Terms are considered a “click-through” agreement and include the Terms of Use governing the Site(s) as well as additional terms included on the Site(s) (the “Additional Terms”). In the event that there is a conflict between these Terms and the Site’s Terms of Use or the Additional Terms, these Terms will supplement or amend the Terms of Use or Additional Terms, but only with respect to the matters governed by these Terms. Although not part of these Terms, please review the Privacy Policy to better understand how you can update, manage, access, and delete your Personally Identifiable Information.
• We may update or change these Terms at any time without prior notice in our sole discretion. The latest version of the Terms will be posted on the Site(s).

 

Section 2 – Bid Placement, Confirmation and Payment

2.1 When you place a bid to purchase a Product(s) or Vehicle(s) through the Site(s) (a “Bid”), you agree that your Bid is an offer to purchase or reserve the Product(s) listed in your Bid. Availability of the Product(s) on the Site(s) or success of your Bid is not guaranteed. Upon submission of the Bid you will receive an automatically generated email acknowledging receipt of the Bid (the “Bid Acknowledgement”), this is not an acceptance of the Bid, merely confirmation of receipt of the Bid which shall remain active while bidding on the selected Product is open. ALL BIDS AE IRREVOCABLE AND NON-CANCELLABLE. If your Bid is unsuccessful, we will notify you of this via email.

2.2 We reserve the right to cancel or refuse accept any Bid that you submit through the Site(s). We may, in our sole discretion, limit or cancel quantities of bids placed per person, per business, per household or per transaction. These restrictions may include orders placed by or under the same customer account and/or bids that use the same billing and/or shipping address. In the event we make a change to or cancel a bid, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the Bid was submitted. We reserve the right to limit or prohibit Bids that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

2.3 Certain items in the sale are being offered subject to a reserve, which is the confidential minimum price below which such lot will not be sold.

2.4 Bidding by Seller or Seller’s Agents – Sellers or Sellers’ agents may bid in the Sellers’ auctions under Section 2-328 of the Uniform Commercial Code. Further, Sellers acknowledge that Buyers are granted certain rights and remedies in these instances if advance notice of Seller bidding is not provided to Buyers. If we, Custom Truck One Source, identify this activity and advance notice is not provided to Buyers, we reserve the right to require that it be added by Sellers or to administratively do so. To the extent that a bid on Seller’s behalf is the highest bidder, Sellers agree that they are liable for the purchase price and Custom Truck reserves all rights and remedies, including the right to collect or retain any associated expenses for any items sold.

2.5 If the auctioneer knowingly receives a bid on the seller’s behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at his option avoid the sale and take the goods at the price of the last good faith bid prior to the completion of sale. The subsection shall not apply to any bid at the forced sale.

2.6 If your Bid is successful, within 2 business days of placing your Bid you will receive an email indicating acceptance of your Bid (the “Bid Acceptance”) to your registered email detailing the Product(s) selected, but the purchase of the Product (the “Purchase”) will not be final until the transaction through your designated payment method is completed (the “Purchase Confirmation”). Upon Bid Acceptance payment shall be consummated through the designated payment method associated with your account. The confirmation of any Purchase is expressly contingent on the completed payment transaction and the execution of any documents provided with the Purchase Confirmation (“Purchase Documents”). In the event payment through your designated payment method is unsuccessful Custom Truck shall contact you to provide an alternate payment method. ALL PURCHASES NOT CONFIRMED AS PAID FOR BY CUSTOM TRUCK WITHIN 72 HOURS OF THE RECEIPT OF THE BID ACCEPTANCE MAY BE CANCELLED. FAILURE TO PROVIDE AN ACCEPTABLE PAYMENT METHOD WITHIN 72 HOURS OF BID ACCEPTANCE WILL RESULT (IN CUSTOM TRUCK’S SOLE DISCRETION) IN (A) CANCELLATION OF YOUR PURCHASE AND CANCELLATION OF THE RESERVATION OF THE VEHICLE/PRODUCT; AND/OR (B) ADDITIONAL FEES ASSESSED AGAINST YOUR ACCOUNT, INCLUDING A PENALTY OF $1000, AND CUSTOM TRUCK MAY RESTRICT FUTURE ACCESS TO YOUR ACCOUNT ON THE SITE(S).

2.7 Payment or pre-authorization of funds by credit card or other payment methods accepted by Custom Truck is required before a purchase will be confirmed. BY SUBMITTING SUCH INFORMATION YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARDS OR OTHER PAYMENT METHODS UTILIZED IN CONNECTION WITH ANY TRANSACTION AND YOU GRANT US THE RIGHT TO PROVIDE SUCH INFORMATION TO THIRD PARTIES FOR PURPOSES OF FACILITATING THE TRANSACTIONS INITIATED BY YOU OR ON YOUR BEHALF. You agree to pay all charges that may be incurred by you or on your behalf through the Site(s), at the prices as reflected in your Bid when such charges are incurred including, without limitation, all delivery costs, and you authorize us to charge all sums for the Bid(s) that you place to the payment method specified at the time. You shall remain responsible for any taxes that may be applicable to such transactions. You authorize us to charge all applicable amounts for the Bids that you place to the payment method specified at the time of placing the Bid. In the event payment for a Purchase will be secured for financing, all financing terms shall be negotiated separately and payment will not be deemed received until funding of such financing is received by Custom Truck. ALL ACCEPTED BIDS ARE FINAL, NON-CANCELLABLE AND NON-REFUNDABLE.

2.8 By accepting these Terms I acknowledge and understand that any and all credit or debit card payments submitted through the Site(s) may be processed by a third party payment processing company (“Payment Processor”) and I shall be subject to any and all terms and conditions of the Payment Processor, including without limitation any additional fees or privacy policies related to my personal information (“Payment Processor Terms”). I acknowledge Custom Truck is not responsible for information, including Personally Identifiable Information, retained by Payment Processor or for any Payment Processor Terms and shall hold Custom Truck harmless from same.

 

Section 3 – Site Content

3.1 Auction prices may differ from prices available through other vendors or marketplaces. Starting bidding prices on the Site(s) are subject to change without notice but will only apply to bids placed after such changes. Bids shall be made and will be paid in U.S. dollars. Unless otherwise indicated on the Site(s), bids exclude taxes (if applicable), applicable Buyer’s fees, delivery charges, and optional warranties, all of which are additional and will be itemized in the Purchase Confirmation.

3.2 Custom Truck reserves the right to utilize third parties in relation to the development and maintenance of content displayed on the Site(s) (“Third Party Material”). Custom Truck is not responsible for the accuracy of Third Party Material. While every effort is made to ensure the accurate display of Products and Vehicles on the Site(s), the depiction may depend on the viewers monitor or mobile device and may not be accurate. Additionally, the material on the Site(s) may be changed, updated and/or deleted without notice and are subject to correction for technical, clerical or typographical inaccuracies or errors. We do not guarantee the accuracy or completeness of any information contained on the Site(s), including pricing, product images, specifications, or availability and we will not be responsible for any such inaccuracies or errors. We reserve the right to correct any errors, omissions, or inaccuracies, and to change or update information at any time without prior notice (including after you have submitted a Bid). Bids placed through the Site(s) may be declined or cancelled for any lawful reason, including without limitation, due to the foregoing issues or if a Product is unavailable.

 

Section 4- Retrieval of Vehicle and Delivery

4.1 Following Purchase Confirmation it is your responsibility to accept delivery of the purchased Vehicle or Products from Custom Truck or arrange for delivery at your own cost within ten (10) business days of such Purchase Confirmation pursuant to Section 4.3. In the event the purchased Vehicle or Products are not retrieved or delivery accepted within the allotted period of time Custom Truck shall have the right to: (i) retain as liquidated damages any cash deposit associated with your account, and for such other expenses and losses as Custom Truck may incur or suffer as a result of such failure or refusal, including any costs for arranging delivery of the Vehicle or Products to you and/or (ii) charge reasonable storage fees for the Vehicle of $100.00 per day.

4.2 Custom Truck shall not be liable for failure to deliver or delay in delivery of the vehicle, accessories, or other parts thereof covered by the Purchase Documents where such failure or delay is due, in whole or in part, to any cause other than the negligence of Custom Truck.

4.3 You are entirely responsible for compliance with all applicable local laws and regulations relating to export and import regulations. You may not place a bid through the Site(s) if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government or under similar laws or regulations applicable in other jurisdictions. If you intend to obtain a certificate of title for a Vehicle in a state where Custom Truck is licensed to sell the Vehicle (or is not required to be licensed to sell the Vehicle), you shall accept delivery of the Vehicle at a Custom Truck location in that state, or such other location as Custom Truck may agree. If you intend to obtain a certificate of title for this vehicle in a state where Custom Truck is not licensed to sell the Vehicle (and would have otherwise been required to be licensed to sell the Vehicle), unless Custom Truck otherwise agrees, Custom Truck will coordinate the shipment of this vehicle to purchaser from Kansas City, Missouri. In such case, you hereby authorize Custom Truck, on your behalf, to enter into a shipping contract with a third-party common carrier for the shipment of this vehicle to the physical address set forth on the Purchase Documents, or such other location as you and Custom Truck may agree. You agree that delivery of the Vehicle, including the transfer of title and risk of loss to you, will occur at the time that the Vehicle is loaded onto the common carrier’s transport (i.e., FOB shipping point). The carrier will insure the Vehicle while in transit, and you will be the beneficiary of any claims for damage to the Vehicle or losses occurring while the Vehicle is in the possession of the common carrier. The shipping cost, if required, will either be included in the Purchase Confirmation or Purchase Documents, as a separate line item. The sale of a Vehicle will be deemed to have occurred in Kansas City, Missouri.

 

Section 5 –Force Majeure

5.1 The Site(s) offers Products and Vehicles for purchase by you through an auction platform. In no event shall we be responsible or liable for any restrictions or limitations to the bid placed or purchase hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.

 

Section 6 – Custom Truck Product Warranty

• Applicable to Vehicles Purchased Without A Written Dealer’s Warranty.

1. Vehicles purchased through the Site(s) without designation of including a written dealer’s warranty are being sold to you “AS IS” and “WITH ALL ” Further, the undersigned acknowledges that he is not relying on any representations in purchasing the Vehicle that may have been made by dealer or its agents or employees concerning the condition of the vehicle which are not stated herein. If selling dealer issues a written express warranty or there remains a part of the manufacturer’s warranty which has not expired according to its terms, this provision does not apply.
2. The mileage shown on the odometer of any Vehicle for sale through the Site(s) is the approximately the mileage applicable to that Vehicle at the time Custom Truck received the Vehicle (less miles driven for testing and demonstration). However, Custom Truck makes no warranty or representation as to the accuracy of said odometer reading, either express or implied, except that said odometer reading has not been altered by selling dealer, and that dealer has no knowledge that it was altered or disconnected prior to the time this Vehicle came into the Custom Truck’s In consideration of the purchase price stated in the Bid Acceptance, you hereby release and forever discharge Custom Truck, its officers, directors, employees, agents, successors, and assigns, from any and all claims, causes of action, liability and damages, which may result or develop from the accuracy of the odometer reading, and in the event that a claim is asserted against Custom Truck by a subsequent purchaser of such Vehicle based upon the accuracy of the odometer reading, you agree to indemnity and hold harmless Custom Truck there from. You understand that Custom Truck has no control over what may have been done to the odometer by previous owners and that Custom Truck has no way to ascertain the correctness of the odometer reading. You hereby acknowledge that you have read, understand, and accept all of the provisions of this disclaimer of warranty and release as set forth in this Section 6.1.

 

• Applicable to Vehicles Purchased With A Written Dealer’s Warranty.

1. The only warranties applying to the sale of a Vehicle purchased through the Site(s) are those extended by the manufacturer in an unexpired manufacturer’s warranty, if any so exists, and/or an express written limited warranty extended by selling dealer and delivered to you at the time of delivery of this vehicle. The provisions and terms of such express written limited warranty are those set out in such instrument. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Further, Custom Truck neither assumes nor authorizes any person to assume for it any liability other than that expressed in such instrument. The under- signed acknowledges that he is not relying on any representations herein. Some states do not allow the exclusion or limitation of consequential or incidental damages, so the above limitation may not apply to you. If the Vehicle is sold “as is” and “with all faults,” this provision “a” does not apply.
2. The mileage shown on the odometer of any Vehicle for sale through the Site(s) is the approximately the mileage applicable to that Vehicle at the time Custom Truck received the Vehicle (less miles driven for testing and demonstration). However, Custom Truck makes no warranty or representation as to the accuracy of said odometer reading, either express or implied, except that said odometer reading has not been altered by Custom Truck, and that Custom Truck has no knowledge that it has altered or disconnected prior to the time a Vehicle came into Custom Truck’s possession. In consideration of the purchase price stated in the Purchase Confirmatio, you hereby releases and forever discharge Custom Truck, its officers, directors, employees, agents, successors and assignees, from any and all claims, causes of action, liability and damages, which may result or develop from the accuracy of the odometer reading, and in the event that a claim is asserted against Custom Truck by a subsequent purchaser of such Vehicle based upon the accuracy of the odometer reading, purchaser agrees to indemnify and hold harmless Custom Truck there from. You understand that Custom Truck has no control over what may have been done to the odometer by previous owners and that Custom Truck has no way to ascertain the correctness of the odometer reading. You hereby acknowledge that you have read, understand, and accept all of the provisions of this disclaimer of warranty and release as set forth in this Section 6.2.

 

Section 7 – DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

7.1 TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE SITE, THE INFORMATION AND PRODUCTS/VEHICLES OFFERED ON OR THROUGH THE SITE(S) AND ANY REFERENCED THIRD-PARTY SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SITE(S) MAY CONTAIN LINKS TO OTHER THIRD-PARTY WEBSITES. ANY THIRD-PARTY GOODS OR SERVICE PROVIDERS ARE SUPPLIED AS A CONVENIENCE TO YOU AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. THIRD-PARTY WEBSITES ARE MAINTAINED BY PERSONS OR ORGANIZATIONS OVER WHICH CUSTOM TRUCK EXERCISES NO CONTROL. CUSTOM TRUCK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE CONTENT OR RESULTS FROM YOUR USE OF SUCH THIRD-PARTY WEBSITES. THIS INCLUDES ANY LISTING OF ANY THIRD-PARTY GOODS OR SERVICE PROVIDER INCLUDED IN THE SITE(s).

7.2 TO THE FULLEST EXTENT PROVIDED BY LAW, CUSTOM TRUCK DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7.3 TO THE FULLEST EXTENT PROVIDED BY LAW, CUSTOM TRUCK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE(s), CONTENT, OR OTHER POSTED MATERIAL ON THE SITE(S) IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE. BY PROVIDING THE SERVICES ON THE SITE(s), CUSTOM TRUCK N DOES NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. CUSTOM TURCK IS ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE SITE(S) AT ANY TIME, IN ITS SOLE DISCRETION WITHOUT NOTICE TO YOU.

7.4 TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL CUSTOM TRUCK, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF THE PURCHASE OF ANY VEHICLE OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms of Use that directly conflict with such laws may not apply to you.

 

Section 8 – Notices

8.1 Unless otherwise specified, please send communications to us under these Terms via email to [email protected]. We may update these Terms by notice on the Site(s).

8.2 Notices to you under these Terms may be sent by sending a message to the email address you provide or by posting to the Site(s). Notices sent by email will be effective when sent. Posted notices are effective upon posting. It is your responsibility to keep your email address current.

 

Section 9 – MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER

9.1 Most concerns can be resolved quickly and to your satisfaction by contacting us as set forth in the “Questions” section below.

9.2 In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site(s), the Products or Services, or any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.

9.3 You and we agree that your use of the Product (s) or Vehicle (s) may involve interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings. If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.

9.4 If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.

9.5 If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.

9.5 If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Site, Product(s), Vehicle(s) and any other actions with us.

9.6 You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at [email protected] and including in the subject line “Rejection of Arbitration Provision.”

 

Section 10 – Governing Law and Venue

10.1 These Terms shall be governed by and construed in accordance with the laws of the State of Missouri, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms (including but not limited to if you opt out of the mandatory arbitration provision) shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Kansas City, Missouri, except where the jurisdiction and venue are mandated by applicable assignment. We may freely assign our obligations and rights under these Terms, including all personal information in our possession that we have collected during your use of the Site(s) as further described in our Privacy Policy found at www.customtruck.com/privacy.

 

Section 11 – General

11.1 No amendment to these Terms will be valid unless made in writing and agreed to by Custom Truck. These Terms are the final and integrated agreement between you and us with respect to their subject matter. Custom Truck may freely assign its obligations and rights under these Terms. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated. Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision, and a waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative.

 

Section 12 – Questions

12.1 If you have any questions or comments about these Terms or the Site(s), please contact us by email at [email protected]. You also may write to us at:

Custom Truck One Source, Inc.

Attn: Website Inquiries

7701 E 24 Highway

Kansas City, MO  64125

 

 

CUSTOM TRUCK ONE SOURCE, INC. – PARTS TERMS OF SALE

Return Policy:

• All returns are subject to a 15% handling charge.
• No returns will be accepted for special order items, kits, or electrical components. A 50% down payment is required for special order parts.
• All returnable parts and cores must be returned within 30 days of the invoice date in a resalable condition. This includes all packaging, instructions, and other accompanying materials.
• Returns must be accompanied by the original invoice.
• All returns require a Return Goods Authorization (RGA) prior to returning any item/order.

 

Return Goods Authorization (RGA)

• A return goods authorization must be obtained by calling or emailing our sales team at 833-727-8755 or [email protected] prior to returning an item/order.
• Return shipping is the buyer’s responsibility unless we’ve made a mistake fulfilling your order.
• The return Ship To address will be indicated on the RGA form.
•  Include a copy of the RGA with your return.
•  Please do not refuse orders as they can end up at the wrong warehouse where returns are not accepted.

 

Limited Warranty:

• Parts are warranted by their respective manufacturers and are subject to their coverage limits.
• Custom Truck One Source shall be the sole judge on any labor warranty, and all corrective work must be performed in our service department.
• This limited warranty is the only warranty offered by Custom Truck One Source and shall not supersede any warranty between the ultimate customer and manufacturer.
• Implied warranties, as to the quality and performance of products, and their merchantability or fitness for a particular purpose, are hereby limited in duration to the same length of time as the expressed limited warranty stated above.
• This limited warranty does not cover damage due to accidents, misuse, neglect, alterations, overheating, lack of lubrication, or lack of maintenance.
• Custom Truck One Source is not liable for consequential damage such as towing, downtime, or lost revenue.

 

Refunds:

Expect a refund in about 10 business days from the time you ship back the order.  It normally takes about a week for us to get your package, a day or two to inspect and process your refund, and 2-3 days for your bank to post a refund.  The refund will be for the full amount, less any shipping cost and/or restocking fees where applicable.

 

Shipping Policy:

Our goal is to provide you with efficient and reliable shipping services for all your equipment parts needs. Please read our Shipping Policy carefully to understand our shipping procedures and guidelines.

• Order Processing Time
  • Orders placed after 4 PM CST, on a Saturday, Sunday, or a U.S. public holiday, will not be processed or shipped until the following business day.
• Freight Collect
  • A $15.00 handling charge is billed on all Freight Collect shipping options. The charge will be added to the order at the time of checkout.
• LTL or Flatbed Shipping for Heavy or Oversized Items
  • Complete orders with/or individual items that exceed a certain maximum weight or length will ship via LTL or flatbed.
• LTL Shipping Costs
  • Shipping costs for LTL will be quoted after the order is placed and will be billed as a separate charge. A confirmation from the customer is required before proceeding with the LTL shipping.
• Reporting Damaged or Missing Items
  • Orders received damaged or missing items must be reported within 24 hours of receiving your shipment. This allows us to file a claim with the shipping company in a timely manner. Please provide clear photos of the damaged or missing items to support your claim.
• Reporting Lost or Delayed Shipments
  • Orders that are lost or not received within 24 hours of the expected delivery date must be reported within 24-48 hours of not receiving your shipment. We will file a claim with the shipping company on your behalf.
• Carrier Delays and Damages
  • Shipments that are delayed by any carrier due to carrier error, weather, damages, etc., are not our responsibility, but the responsibility of the shipping company. We will work with the shipping company to resolve the issue, but cannot guarantee compensation for delays or damages caused by carrier actions.
• International Shipments
  • It is the responsibility of the buyer to pay for all customs and import duties for shipments that are shipped to international destinations.
• Hazmat Shipping Restrictions
  • Orders that include Hazmat items are restricted from being shipped to international destinations or by air to domestic U.S. destinations.

 

Thank you for choosing Custom Truck One Source for your parts needs. We appreciate your understanding and compliance with our Return, Warranty, and Shipping Policy. If you have any questions or concerns, please do not hesitate to contact our customer support team for assistance.