Fleet Fueling Terms and Conditions
1. GENERAL: Any and all sales of material (“Product”) by Nittany Oil Company, Inc. (‘SELLER”) shall be subject to all of the following Terms and Conditions of Sale and as published and updated at SELLER’S website (“Terms and Conditions of Sale”). These Terms and Conditions of Sale shall take precedence over any differing terms in any other documentation of BUYER or SELLER including, but not limited to, any other clauses or terms which appear on any letters, purchase orders, or order slips of BUYER or invoices of SELLER, except to the extent such terms and conditions of sale are incompatible with the provisions that are contained in a Written Agreement (“Written Agreement”) between BUYER and SELLER that has been signed by a corporate officer of SELLER. No terms, conditions or representations other than those set out in these Terms and Conditions of Sale, including but not limited to terms, conditions or representations made by any employee, agent or representative of either party shall be binding on the other party unless expressly agreed to in writing and signed by an authorized representative of such party. In the event that BUYER and SELLER have entered into a Written Agreement, these Terms and Conditions of Sale, together with the Written Agreement, shall constitute the entire agreement between BUYER and SELLER.
2. PAYMENT TERMS (as determined by credit review and approval): WEEKLY PAYMENT TERMS: Unless otherwise set forth in writing, balance for the previous week, Monday through Sunday, is due in full, no later than the following Friday. BI-MONTHLY PAYMENT TERMS: Unless otherwise set forth in writing, balance for the preceding billing period is due in full no later than the 15th and last day of every month. MONTHLY PAYMENT TERMS: Unless otherwise set forth in writing, balance for the preceding billing period is due in full on or before the 15th of every month.
If payment due date falls on a non-Business Day, then payment is due on the Business Day before the due date. If payment is not received by SELLER when due, any outstanding amount shall be assessed finance charges at the monthly rate of 1.50% (18% per year) payable on the first day of default and on the first day of every month thereafter until paid in full. Payments will be applied first to unpaid late fees and then to unpaid balances. BUYER may pay their account balance at any time prior to its due date without penalty. A handling fee of up to $30.00 will be charged for all checks returned from bank for any reason. BUYER also shall pay to SELLER on demand all expenses, including reasonable legal fees and court costs incurred by SELLER in protecting or enforcing any of its rights under these Terms and Conditions of Sale, any written agreement, or otherwise. SELLER may, at its sole discretion, grant credit to BUYER in respect of products purchased hereunder upon such terms and conditions as SELLER may establish from time to time. BUYER agrees and acknowledges that SELLER may at any time refuse to grant or extend credit to BUYER or that SELLER may demand immediate payment of all indebtedness outstanding in respect of Products purchased hereunder.
3. PURCHASES: BUYER shall be responsible for all purchases by BUYER or any other person using Nittany MinitMart charge cards issued to BUYER, regardless of whether use by any other person is unauthorized or fraudulent. BUYER is required to immediately notify SELLER if a card is lost, stolen or if BUYER suspects fraud or unauthorized use. In the event that BUYER suspects the loss, theft or possible unauthorized use of a card or if BUYER would like to terminate an account user, SELLER must be notified immediately by calling 1-800-870-2140.
4. WARRANTIES: The warranties described in this paragraph are in lieu of all other warranties. SELLER warrants that the Product owned and supplied by SELLER to BUYER shall meet the description stated on the invoices or upon the original container in which such product is supplied, as the case may be. BUYER AND SELLER AGREE THAT SELLER DOES NOT MAKE OR INTEND, AND SELLER DOES NOT AUTHORIZE ANY AGENT OR REPRESENTATIVE TO MAKE, ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THAT SELLER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THAT PURPOSE IS KNOWN TO SELLER. ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, NOT SPECIFICALLY AGREED TO IN WRITING BY SELLER, ARE EXPRESSLY EXCLUDED.
5. LIABILITIES-CLAIMS-INDEMNIFICATION: BUYER represents that any person using the Nittany MinitMart charge cards delivered to BUYER are and shall be aware of the proper use of the fueling system and shall use safe practices in compliance with the regulations of the local Fire Code in handling of the fuels dispensed from the Nittany MinitMart fueling system. SELLER’s TOTAL LIABILITY FOR PRODUCT SOLD HEREUNDER, WHETHER BASED ON CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE SELLING PRICE OF THE PRODUCT INVOLVED IN THE CLAIM AND NEITHER PARTY WILL BE LIABLE FOR ANY PROSPECTIVE PROFITS, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. BUYER assumes all risk and responsibility for handling of Product following delivery, for the results obtained by the use of Product in a manufacturing process or otherwise, and for the results obtained by the use of Product in combination with other substances, irrespective of the fact that such use or handling of Product is in accordance with any description, advice or suggestion of SELLER. The provisions of this section 5 will survive termination or performance of this transaction. BUYER will indemnify, defend and hold harmless SELLER and its partners, managers, officers, directors, employees and agents against any liability (whether strict or otherwise) for any claim, loss or expense, direct or indirect, on account of any injury, disease or death of any person (including BUYER’s employees) or damage to property (including BUYER’s) arising out of negligence or misuse of the Nittany MinitMart fueling system, its equipment or facilities by BUYER or any person using the Nittany MinitMart charge cards delivered to BUYER hereunder.
6. NONPERFORMANCE: SELLER shall use its best efforts to maintain the Nittany MinitMart fueling system in good working order and condition at its expense provided however, SELLER shall not be responsible for any damage or loss which may result from its failure to provide fuel or the failure of the Nittany MinitMart fueling system in any manner whatsoever. SELLER will be excused from the obligations hereunder to the extent that performance is delayed or prevented by any circumstances, direct or indirect, reasonably beyond its control including but not limited to fire, war, civil disturbance, floods, accidents, explosion, mechanical breakdown, strikes or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Product or compliance with any law, regulation, order, recommendation or request of any governmental authority (collectively, “Force Majeure”). In addition, SELLER will be so excused in the event it is unable to acquire from its usual sources on terms it deems to be reasonable, any Product due to Force Majeure reasons. If, because of such circumstances, there should be a shortage of any Product from any of SELLER’s suppliers for Force Majeure reasons, SELLER will not be obligated to change its supply point for BUYER, purchase Product for BUYER or to change the facility where Product is obtained for BUYER in order to perform this Agreement and SELLER may apportion its available Product among itself, its affiliates and all its customers in such manner as SELLER, in its sole discretion, determines is reasonable.
7. REMEDIES: If BUYER fails to pay, when due, any invoice or any other indebtedness to SELLER (whether or not under these Terms and Conditions of Sale or another Written Agreement), with or without notice, or fails, within 15 days of a breach of any other obligations hereunder, to remedy such breach, SELLER may, in addition to any other remedies, suspend services, shorten the billing cycle, change terms of payment and/or credit, refuse to authorize any transaction or any Written Agreement forthwith without notice to BUYER. All outstanding amounts will be immediately due and payable. Suspension of services will not be deemed a waiver of any right to terminate this Agreement. BUYER’s obligation to perform will not be limited by any previous waiver by SELLER. Any order governed by these Terms and Conditions of Sale or any Written Agreement shall immediately terminate at the sole option of SELLER without the necessity of written notice should BUYER be declared insolvent, file or have filed against Buyer, a petition in bankruptcy, make a general assignment to its creditors, or be dissolved or liquidated. Upon termination, BUYER agrees to immediately surrender all Nittany MinitMart charge cards issued to BUYER.
8. NOTICES: Notice by either SELLER or BUYER shall be by prepaid mail or electronic mail addressed to the other Party at its address set out in any Written Agreement. If there is no Written Agreement, notices to BUYER will be sent to the address to which invoices are sent by SELLER and notice to SELLER will be sent to the attention of: Nittany Oil Company, 321 North Front Street, Philipsburg, PA 16866. Notice will be considered given upon receipt.
9. SEVERABILITY AND WAIVER: Should any provision of these Terms and Conditions of Sale be or become illegal or unenforceable, such provision shall be considered separate and severable from these Terms and Conditions of Sale and the remaining provisions shall remain in force and be binding upon SELLER and BUYER as though such provision had never been included. Any waiver by SELLER of any breach of any term or condition of these Terms and Conditions of Sale shall not be construed as or be deemed to be a waiver of any future breach of such term or condition.
10. ASSIGNMENT: Neither these Terms and Conditions of Sale nor any Written Agreement may be assigned in whole or in part by SELLER or BUYER, whether by operation of law or otherwise, without the express prior written consent of the other party, which consent may be withheld for any reason whatsoever. In the event of an ownership change of BUYER, SELLER must be notified in writing immediately. Failure to notify SELLER is a breach of this Agreement and will result in immediate cancellation of account.
11. CONFESSION OF JUDGMENT: BUYER HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD TO APPEAR FOR BUYER, AND, WITH OR WITHOUT NOTICE OR OPPORTUNITY TO CURE, CONFESS JUDGMENT AGAINST BUYER, AND IN FAVOR OF SELLER, FOR UNPAID OBLIGATIONS NOW DUE AND/OR TO BECOME DUE AS A RESULT OF CREDIT EXTENDED UNDER THE NITTANY MINITMART FLEET FUELING AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL ACCRUED AND UNPAID INTEREST, CHARGES, EXPENSES, OR OTHER AMOUNTS PAYABLE HEREUNDER, WHETHER BY ACCELERATION OR OTHERWISE, WITH COSTS OF SUIT AND ATTORNEY’S COMMISSION EQUAL TO THE GREATER OF (A) FIVE HUNDRED DOLLARS ($500) OR (B) FIFTEEN PERCENT (15%) OF ALL AMOUNTS TO BE COLLECTED, WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AND AS OFTEN AS SELLER SHALL ELECT, UNTIL SUCH TIME AS ALL OBLIGATIONS HEREUNDER SHALL HAVE BEEN SATISFIED.
12. GOVERNING LAW: These Terms and Conditions of Sale will be interpreted and the rights, obligations and liabilities of the Parties determined in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law principles. BUYER hereby consents to the jurisdiction of state and federal courts situate in Centre County, Pennsylvania in the event of any action related to or arising from these Terms and Conditions of Sale or any Written Agreement and waives any right to object to venue laid therein. BUYER waives the right a trial by jury.
13. CREDIT LIMITS: BUYER acknowledges that the account with SELLER will have a credit limit. BUYER can make purchases up to the credit limit that is assigned by SELLER. The credit limit is determined based upon a combination of BUYER’s requirement needs, financial condition, credit scores and any other relevant information. BUYER authorizes SELLER to obtain credit reports concerning them. SELLER shall have this right to exercise from time to time as it sees fit so long as this agreement remains in effect or so long as any balances are owed to SELLER. Credit limits are typically reviewed annually unless circumstances change to support a more frequent review. SELLER may change the credit limit without prior notice. If SELLER has previously permitted BUYER to exceed its credit limit, it does not mean that SELLER will permit BUYER to exceed its credit limit again.
14. LIQUIDATED DAMAGES FOR COLLECTIONS: In the event BUYER defaults on this account and SELLER refers collection of this account to an attorney or debt collection agency, BUYER agrees to pay by way of liquidated damages, and not as a penalty, a sum equal to the greater of (A) Five Hundred Dollars ($500) or (B) Fifteen Percent (15%) of all amounts to be collected as SELLER’s reasonable counsel or other collection fees.
15. CONFIDENTIALITY: Neither party shall disclose any confidential and/or proprietary information of the other party or the existence and/or the terms of these Terms and Conditions of Sale to any third party unless upon prior written consent of the other party.
16. MISCELLANEOUS PROVISIONS: The Terms and Conditions of Sale hereof, shall be binding upon the heirs, successors, administrators and assigns of BUYER. The obligations of all persons signing as BUYER shall be joint and several. No waiver by SELLER of default of any provision hereof shall operate as a subsequent waiver of any default under the same or any other provision hereof. BUYER’s continued use of Nittany MinitMart charge card system will be considered acknowledgment and acceptance of this agreement.