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 components or parts described in the front upon these Terms and Conditions of Sale. These Terms and Conditions of Sale cannot be modified, cancelled, rescinded or waived except by a written agreement signed by both parties.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 components or parts.
A. Prices quoted are F.O.B. Plano, Texas unless otherwise stated.
B. Seller requires a deposit for the purchase of any complete transaxle or transmission 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. A Taylor Race Engineering Sales Representative must be notified before any returns are accepted. Returned items must be accompanied by a Return Authorization Form. All returns must be received within 30 days of the invoice date and a copy of the original invoice must be included. RETURNED ITEMS MUST BE IN LIKE NEW CONDITION. No credit will be given for items which have been installed or items which appear used or damaged in any way (cosmetic damage included). Special order items and obsolete items will not be accepted for return credit. All returns are subject to a 10% handling charge. All returns will be given store credit toward future purchases. Purchaser has 30 days to apply credit to future purchase. Any credits not applied with in 30 days will be forefitted by purchaser.
7. Warranty. Seller warrants that any new racing component or part shall leave its premises and be delivered to Purchaser in the condition it was received from the Manufacturer. Any defective parts or components shall be deemed attributable to the Manufacturer. Purchaser shall be responsible for inspecting and testing any new racing component or part immediately upon delivery. If any component or part is defective, Purchaser shall notify Seller within ten (10) days of taking delivery and prior to the time that the component or part is installed, modified, tested or raced. Any liability under this warranty shall cease at the first time the component or part is installed, modified in any way, tested or raced. ALL PARTS OR COMPONENTS 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 SUCCESSIVE BUYERS, USERS, THIRD PARTIES OR EMPLOYEES. ANY OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, 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 PARTS OR COMPONENTS. IF NOTICE OF A BREACH OF WARRANTY IS GIVEN BY PURCHASER AND EXAMINATION BY SELLER DISCLOSES A PART OR COMPONENT 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 PART OR COMPONENT.
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 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 RACING COMPONENT OR PART 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 PARTS AND COMPONENTS. 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 ANY COMPONENT OR PART SAFELY. SELLER SHALL BEAR NO RESPONSIBILITY WHATSOEVER FOR THE FAILURE OF ANY COMPONENT OR PART.
10. Applicable Law. These Terms and Conditions of Sale shall be construed in accordance with the law of the Sate of Texas. The parties expressly agree that jurisdiction and venue of any action arising under this agreement shall be in a court of competent jurisdiction in Collin County Texas.
11. Limitation on Action. Any action or suit against Seller arising in any way from this agreement or with respect to any component or part must be commenced within one (1) year after the cause of action has accrued.
12. Whole Agreement. The parties agree that there are no other agreements or warranties, except as contained in these Terms and Condition and any quotation. These Terms and Conditions and any quotations are the final, complete and exclusive expression of the parties' agreement.
WARNING: PARTS AND COMPONENETS OFFERED BY SELLER ARE INTENDED FOR USE IN HIGH-SPEED HIGH-PERFORMANCE RACING VEHICLES. THERE ARE RISKS AND DANGERS ASSOCIATED WITH THE OPERATION AND/OR RACING OF HIGH-SPEED HIGH-PERFORMANCE VEHICLES, INCLUDING A SIGNIFICANT POSSIBILITY OF SERIOUS PHYSICAL INJURY OR DEATH. THE PARTS AND COMPONENTS WILL NOT WITHSTAND ALL FORESEEABLE IMPACTS THAT MAY OCCUR DURING ITS NORMAL INTENDED USE WITHOUT POSSIBLE INJURY TO OR DEATH OF THE DRIVER OR DAMAGE TO THE VEHICLE, WHICH MAY AFFECT ITS PERFORMANCE AND SAFE USE. OTHER RACE PARTICIPANTS, THEIR AUTOMOBILES, TRACK CONDITIONS AND OTHER FACTORS CONTRIBUTE TO THE ABOVE DANGERS AND RISKS. THERE MAY BE OTHER RISKS AND DANGERS, BOTH KNOWN AND UNKNOWN AND OTHERWISE, WHICH ARE NOT REASONABLY FORESEEABLE. THE PARTS AND COMPONENTS SHOULD ONLY BE INSTALLED OR USED ON A VEHICLES DRIVEN (a) BY A DRIVER WITH REQUISITE TRAINING, SKILL AND EXPERIENCE NECESSARY FOR THE RACING OF HIGH SPEED AND HIGH PERFORMANCE VEHICLES; (b) ON SPECIFICALLY DESIGNED RACING TRACKS AND UNDER THE SUPERVISION OF SANCTIONED RACING ORGANIZATIONS; (c) AFTER INSPECTION BY A QUALIFIED MECHANIC FOLLOWING EACH USE; AND (d) WITH PROPER MAINTENANCE AND REPAIR TO PARTS SUBJECT TO WEAR AND TEAR, FATIGUE, OR DISINTEGRATION OR DAMAGE DUE TO COLLISION OR IMPROPER USE.
RELEASE/ASSUMPTION OF THE RISK: PURCHASER HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE TAYLOR RACE ENGINEERING, AFFILIATED ENTITIES, PARENTS, SUBSIDIARIES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, MANAGERS, AFFILIATES, PRINCIPALS, INSURERS, BENEFICIARIES, HEIRS, DEVISEES, ASSIGNS, PREDECESSORS AND SUCCESSORS, AS APPLICABLE (COLLECTIVELY "RELEASEES") FROM ANY AND ALL PRESENT AND FUTURE CLAIMS AGAINST, AND/OR LIABILITY OF, RELEASEES FROM ANY INJURY TO OR DISABILITY, PARALYSIS OR DEATH OF ANY PERSON IN CONNECTION WITH PURCHASER (OR ANY OF ITS PERSONNEL) OR OTHERWISE TAYLOR RACE ENGINEERING CUSTOMERS OR THIRD PARTIES, OR DAMAGE TO PROPERTY CAUSED, OR ALLEGED TO BE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OR FAULT OF ANY OF THE RELEASEES, EXCEPT FOR ANY WILFUL, WANTON OR GROSSLY NEGLIGENT ACTIONS OF THE RELEASEES. PURCHASER EXPRESSLY ASSUMES THE RISK OF ALL SUCH INJURY, DISABILITY, PARALYSIS, DEATH, AND PROPERTY DAMAGE AS HEREIN PROVIDED.
ACCEPTANCE: PURCHASER ACKNOWLEDGES AND AGREES ANY USE, WHATSOEVER, OF ITEMS PURCHASED THROUGH TAYLOR RACE ENGINEERING SHALL BE DEEMED TO BE A FULL ACCEPTANCE OF ALL OF THE FOREGOING TERMS AND CONDITIONS AT ALL TIMES.