TERMS AND CONDITIONS OF SALE
1. Quotation. A quotation is not an offer and any order given in respect of a quotation shall not be binding on the Seller until accepted by the Seller in writing.
2. Offer to Sell and Acceptance. Seller offers to sell the cars, components or parts described herein or attached hereto (sometimes referred to herein collectively as “Product(s)”) upon these Terms and Conditions of Sale. These Terms and Conditions of Sale cannot be modified, canceled, rescinded or waived except by a written agreement signed by both parties. Purchaser shall accept these Terms and Conditions of Sale by acceptance of the cars, components or parts.
A. Prices quoted are F.O.B. Lincolnshire, Illinois unless otherwise stated.
B. Seller requires a deposit for the purchase of any car prior to processing the order. All deposits are nonrefundable.
C. Prices do not include any applicable taxes or other charges. Purchaser shall pay any such taxes or other charges upon receipt of an invoice from Seller.
D. Seller shall endeavor to maintain prices quoted but reserves the right to increase quoted prices according to any increases in costs which take effect between the acceptance and delivery of the order.
4. Terms of Payment.
A. If payment is in arrears, the Seller has the right to withhold any further deliveries and/or to charge interest on all overdue balances. The Purchaser shall pay all accounts in full according to terms described on the front and not exercise any rights of set off or counterclaim against invoices submitted.
B. Any payment not made at the scheduled due date shall bear interest at the rate of 1.5% per month or at the highest lawful rate allowed in the applicable state, whichever is lower. Purchaser shall reimburse Seller for all costs and expenses, including attorneys’ fees and court costs, incurred in collecting any amounts due.
5. Force Majeure. Seller shall have no liability to Purchaser for any loss, damage, or expense from any delay or failure of performance due to any cause beyond the control of Seller, including, but not limited to, fire, strike, accident, war conditions, government regulation or restriction, shortages in transportation, power, labor or material, freight embargo, riot or civil commotion or default of the supplier.
6. Returns. No returns are accepted without prior written notification. Returns will be accepted for credit only if Products are returned within 10 days of date of shipment accompanied by Seller’s packing slip or invoice. Special order Products cannot be returned. All returns are subject to a 10% handling charge.
7. Warranty. Seller warrants that any Product shall leave its premises and be delivered to Purchaser in the condition it was received from the manufacturer. Any defective Products, parts or components shall be deemed attributable to the manufacturer. Purchaser shall be responsible for inspecting and testing any new racing car immediately upon delivery. If any component or part of a new racing car is defective, Purchaser shall notify Seller within ten (10) days of taking delivery and prior to the time that the racing car is modified, tested or raced. Any liability under this warranty shall cease at the first time the racing car is modified in any way, tested or raced. ALL PRODUCTS ARE SOLD “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.
THIS WARRANTY, AS LIMITED HEREIN, IS THE ONLY WARRANTY EXTENDED BY SELLER IN CONNECTION WITH ANY SALE AND IS EXTENDED TO PURCHASER ONLY AND NOT TO ANY SUCCESSOR BUYERS, USERS, THIRD PARTIES OR EMPLOYEES. ANY OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR ARISING BY OPERATION OF LAW OR FROM ANY COURSE OF DEALING OR TRADE USAGE OR OTHERWISE IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
ANY OBLIGATION HEREUNDER UPON BREACH OF WARRANTY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCT. IF NOTICE OF A BREACH OF WARRANTY IS GIVEN BY PURCHASER AND EXAMINATION BY SELLER DISCLOSES A PRODUCT TO BE DEFECTIVE UNDER ORDINARY AND NORMAL USE PRIOR TO ANY MODIFICATION, TESTING OR RACING, PURCHASER WILL LOOK SOLELY TO MANUFACTURER FOR THE REPAIR OR REPLACEMENT OF SUCH DEFECTIVE PRODUCT.
To the extent permissible under applicable law, Purchaser assumes all risk of and liability for, and shall defend, indemnify and hold harmless Seller and its Affiliates and their employees, owners, officers, directors, shareholders, insurers, beneficiaries, heirs, successors, assigns, and agents from and against, any and all claims, damages, expenses (including legal and court fees), and liabilities for loss, property damage, death, injury or illness, arising out of Purchaser’s possession, use, transportation or resale of the Products sold under this Agreement. Purchaser shall rely on its own skill and judgment in relation to its possession and use of the Products in whatever form. This indemnification obligation shall survive the termination of this Agreement for any reason.
8. Limitation or Damages. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY WHATSOEVER FOR PAYMENT OF ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY LOSSES, DAMAGES OR EXPENSES OF ANY KIND, INCLUDING ANY DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING OR USE OF THE PRODUCTS, OR FROM ANY OTHER CAUSE WITH RESPECT TO THE PRODUCTS OR THIS AGREEMENT AND WHETHER SUCH CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY.
9. Purchaser Responsibility.
A. PURCHASER ACKNOWLEDGES THAT ANY PRODUCT WHICH MAY BE SOLD IS FOR NON-STREET USE AND THAT NO INSURANCE OF ANY TYPE HAS BEEN ISSUED IN CONNECTION WITH THIS TRANSACTION.
B. PURCHASER ASSUMES, AND SHALL BEAR SOLE RESPONSIBILITY AND RISK FOR ANY RACING OR TEST DRIVING BY THE PURCHASER OR PURCHASER’S EMPLOYEES OR CONSULTANTS. PURCHASER ACKNOWLEDGES THAT IT SHALL BE PURCHASER’S RESPONSIBILITY TO INSPECT AND TEST ALL PRODUCTS. PURCHASER ACKNOWLEDGES THAT RACING INVOLVES A HIGH DEGREE OF RISK AND THAT PURCHASER IS RESPONSIBLE FOR PROVIDING ANY SAFEGUARDS OR OTHER DEVICES NECESSARY TO UTILIZE THE PRODUCT SAFELY. SELLER HAS NOT DESIGNED, MANUFACTURED OR TESTED ANY PRODUCTS AND SELLER SHALL BEAR NO RESPONSIBILITY WHATSOEVER FOR THE FAILURE OF ANY PRODUCT.
10. Applicable Law. These Terms and Conditions of Sale shall be construed in accordance with the law of the State of Illinois. The parties expressly agree that jurisdiction and venue of any action arising under this agreement shall be in a court of competent jurisdiction in Lake or Cook County, Illinois.
11. Limitation on Action. Any action or suit against Seller arising in any way from this agreement or with respect to any Product commenced within one (1) year after delivery of such Product.
12. Whole Agreement. The parties agree that there are no other agreements or warranties, except as contained in these Terms and Conditions and any quotation. These Terms and Conditions and any quotations are the final, complete and exclusive expression of the parties’ agreement.