The entity or individual applicant (hereinafter “Customer”) agrees to pay all charges when due. In the event said charges are not timely paid, Customer agrees to pay Western States Oil a service charge of 2% per month on the unpaid balance for all charges not paid within the due date (or the highest rate allowed by law). This is not interest on a loan or a finance charge but an agreed to service charge for the failure to timely pay for goods and services received.
Customer agrees to assume full responsibility for all purchases made on Customer’s account and to pay all bills when due. Customer agrees not to exceed the credit limits set by Western States Oil, however in the event Western States Oil does extend additional credit to Customer, Customer will be deemed to have actual knowledge of such additional credit purchases, and in the event such credit exceeds any such limits, Customer agrees to assume full responsibility and to pay any additional amounts that exceed the credit limit previously set by Western States Oil.
To secure the payment, Customer grants Western States Oil a purchase money security interest in the products sold under this agreement whether constituting goods, payment intangibles and/or general intangibles, including all accessions to and replacements thereof, and all proceeds of the foregoing. Customer authorizes Western States Oil to file one or more financing statements signed only by Western States Oil without customer signature and to use a copy of this agreement as any exhibit to any financing statement. Customer shall execute any additional documents, instruments, financing statements or amendments to perfect or continue the security interest created by this agreement. Western States Oil shall have all of the rights and remedies of a secured party under the Uniform Commercial Code in effect in the state where they reside from time to time, which remedies shall be cumulative and not exclusive.
Western States Oil may, at their option, refuse to permit charges to be incurred on the account. Delivery of product to the facilities or trucks of Customer may be made without obtaining signatures upon delivery. Delivery times are “best efforts” only. Western States Oil will not be responsible for any claims or damages whatsoever for failure to deliver at certain times. Customer and the undersigned certify that the delivery location is unbranded and will immediately notify Western States Oil of any change in writing by certified mail.
The parties agree that, if the account is referred for collection to an attorney, the Customer and the undersigned will pay reasonable attorney’s fees and costs of collection. The parties agree, notwithstanding applicable conflict laws, that the laws of the State of California shall apply to interpretation and enforcement of the terms and conditions set forth herein, as well as any other dispute arising out of this agreement, whether based in contract, tort, statute or otherwise. The parties further agree that, if any litigation is commenced to arising out of this agreement, the sole and exclusive venue for resolution of these disputes will be in Santa Clara County California, in either the California Superior Courts for the County of Santa Clara or the U. S. District Courts for the Central District of California.
Customer and undersigned guarantor further agree that they will irrevocably submit to the jurisdiction of this selected venue, which selection is intended to be mandatory, and waive all right to seek venue elsewhere. The parties further covenant and agree, if suit or litigation is filed by either party to this agreement, California retains both in rem and in personam jurisdiction over both parties and their assets.
To the maximum extent permitted by the applicable law, Western States Oils total aggregate liability to Customer for any claim arising out of or in connection with this agreement for breach of contract, breach of warranty, breach of statutory duty or negligence or other tort, whether by virtue of strict liability or otherwise, will not exceed the invoice value of the relevant delivery of Product, if delivered, or if the above breach of Agreement consists of a failure to deliver, the invoice value of the Product had it been delivered and invoiced. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR LOSS OF PRODUCTION, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, OR WASTED EXPENDITURE OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE COST, EXPENSE, LOSS OR DAMAGE OF ANY KIND.