Alpha Program Terms & Conditions

1. Applicability.  

(a) These terms and conditions of product use (these "Terms") are the only terms that govern the use of the goods ("Goods") distributed by Bunker Supply Co, LLC ("Bunker") pursuant to its Alpha Program to any recipient of such Good ("Recipient").

(b) These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Distribution of Goods to Recipient does not constitute acceptance of any of Recipient's terms and conditions and does not serve to modify or amend these Terms.

2. Delivery.  

(a) If accepted to participate in the Alpha Program, the Goods will be delivered within a reasonable time, subject to availability of finished Goods. Bunker shall not be liable for any delays, loss, or damage in transit or for any failure by it to deliver the Goods to Recipient.

(b) Bunker shall deliver the Goods to Recipient at a location approved by Bunker (the "Delivery Point") using Bunker's standard methods for packaging and shipping such Goods.

(c) Bunker may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Recipient.

(d) If for any reason Recipient fails to accept delivery of any of the Goods or if Bunker is unable to deliver the Goods at the Delivery Point on such date because Recipient has not provided appropriate instructions, documents, licenses or authorizations, then the Goods may be returned to Bunker at Recipient’s sole cost and expense.

3. Amendment and Modification of Terms. These Terms may be amended or modified in a writing by Bunker at any time, by written notice to Recipient of any amendment, change or modification hereto.

4. Acknowledgment of Ownership. Recipient acknowledges and agrees that Bunker owns and will retain all right, title, and interest in and to all intellectual property and confidential information of every kind contained in, consisting of or included within the Goods and all new information that is developed through the Alpha Program. (“Intellectual Property”).

5. Modification of Goods. As between the Bunker and Recipient, Bunker shall own  any improvement, enhancement, or other modification of or derivative work based on any of the Goods, the Intellectual Property or Confidential Information made or suggested by or on behalf of Recipient (each, a "Product Modification"). Recipient shall immediately notify Bunker of any Product Modification made by or on behalf of Recipient (each, a "Recipient Modification"). Recipient does hereby assign to Bunker all of its right, title, and interest in and to all Recipient Modifications, including all rights to apply for any patents or other intellectual property registrations with respect to such Recipient Modifications and all enforcement rights and remedies for past, present, and future infringement thereof and all rights to collect royalties and damages therefor. All patent applications and applications for registration filed by Recipient with respect to any such Recipient Modification and all patents or registrations issuing therefrom shall automatically be included in the Recipient Modification and subject to the license granted herein. At the request of Bunker, Recipient shall promptly execute and deliver such documents as may be necessary or desirable to effect and perfect the foregoing assignment of rights.

6. No Nonconforming Goods.  

(a) Recipient will be deemed to have accepted the Goods upon receipt and Bunker shall have no liability for any Goods that are nonconforming.

7. Participation.

(a) Recipient shall receive the Goods in exchange for Recipients participation in the Alpha Program, as such program is set forth on Bunker’s website located at https://www.bunkersupply.us/bunker-alpha-program (“Participation”). In exchange for Recipient’s Participation the Goods shall be delivered at no cost, except shipping and handling and applicable taxes which Bunker may pass to Recipient as approved by Recipient.

8. No Bunker Warranties.  

(a) Bunker makes no representations or warranties of any kind with respect to the Goods.  In particular, Bunker does not warrant that such Goods will conform to any specifications or will be free from any defects in material and workmanship.

(b) EXCEPT AS OTHERWISE SET FORTH IN SECTION 6(A), BUNKER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.          

(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by any warranty set forth in these Terms. For the avoidance of doubt, BUNKER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(d) Bunker shall not be liable to Recipient for any defect of the Goods, whether or not Bunker has been informed (whether by Recipient or otherwise) of such defect.  

(e) Bunker shall not be liable to Recipient for Recipient’s failure to follow Bunker's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or if Recipient alters or repairs such Goods without the prior written consent of Bunker.

9. Limitation of Liability.  

(a) IN NO EVENT SHALL BUNKER BE LIABLE TO RECIPIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUNKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL BUNKER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BUNKER BY RECIPEINT FOR THE GOODS DISTRIBUTED HEREUNDER or $100.00, WHICHEVER IS LESS].

(c) The limitation of liability set forth in Section 9 shall not apply to (i) liability resulting from Bunker's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Bunker’s acts or omissions.

10. No Sale of Goods. Recipient shall not license, sell, resale, export, import or transfer the Goods for value to any third party in any manner whatsoever. Recipient does hereby represent and warrant that use of the Goods is for Recipient’s personal use and not for use with or for any other third parties.

11. Waiver. No waiver by Bunker of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Bunker. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12. Confidential Information. All non-public, confidential or proprietary information of Bunker, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Bunker to Recipient with respect to the Goods, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these Terms and or the use of the Goods is confidential, solely for the use of Recipient in his, her or its Participation and may not be disclosed or copied unless authorized in advance by Bunker in writing. Upon Bunker's request, Recipient shall promptly return all documents and other materials received from Bunker. Bunker shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Recipient at the time of disclosure; or (c) rightfully obtained by Recipient on a non-confidential basis from a third party.

13. Assignment. Recipient shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Bunker. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Recipient of any of its obligations under this Agreement.

14. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

16. Governing Law. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.

17. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Los Angeles, and County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

18. Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

19. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms, unless expressly changed, amended or modified pursuant to Section 3 hereof.