Terms & Conditions
Terms and Conditions of Sale
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
Elliott Motorsports, a Minnesota business, ("Seller") hereby offers for sale to the buyer named on the face hereof ("Buyer") the products listed on the face hereof (the "Products") on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this agreement differ from the terms of Buyer's offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer's document. Buyer's receipt of Products provided hereunder will constitute Buyer's acceptance of this agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer's purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller's failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.
All prices published by Seller or quoted by Seller's representatives may be changed at any time without notice. All prices quoted by Seller or Seller's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation.
TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must by paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
DELIVERY; PRODUCT AVAILABILITY
Although Seller has attempted to ensure that the inventory availability of Products is properly designated on the Web site for many Products, Seller acknowledges that from time-to-time even those Products designated as in inventory will not be available at time of shipment. Any dates quoted for delivery of the Product are approximate only and Seller will not be liable for any delay in delivery of the Product however caused. Time for delivery will not be of the essence of this agreement unless previously agreed by the Seller in writing. Seller reserves the right to substitute alternate products with equivalent specifications for those ordered. Buyer shall have the right to return any substituted products at no charge. Seller further reserves the right to make delivery in installments for those items of an Order, which are available for immediate shipment, and to separately charge Buyer’s credit card account for any such items delivered. The foregoing sets forth Seller’s entire obligation with regard to Product availability and shipment delays. Seller shall not be liable for any late shipment or any failure to ship any Product(s).
Immediately upon receipt of Product(s) shipped hereunder, Buyer shall inspect the Products and promptly notify Seller in writing of any claims for order or shipping errors, shortages, defects or damages and shall hold any such goods for Seller’s written instructions concerning disposition. If Buyer fails to notify Seller within ten (10) days after receipt of Products, such failure shall constitute a waiver of Buyer’s rights of inspection and rejection and the Products shall conclusively be deemed to conform to the terms provided herein and shall be irrevocably accepted by Buyer. If the Buyer fails to take delivery of the Product(s) or fails to give Seller adequate delivery instruction at the time stated for delivery, otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Seller’s fault, then, without prejudice to any other right or remedy available to Elliott Motorsports: (i.) Seller may store the Product(s) until actual delivery and charge the Buyer for all reasonable costs, including insurance, of storage; or (ii.) sell the Product(s) at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the shortfall to the credit card account authorized by the Buyer or account to the Buyer for the excess over the price charged to the Buyer.
CANCELLATIONS OF ORDERS
Buyer may cancel an Order prior to shipment provided Seller approves a cancellation. Buyer shall pay all of Seller’s costs, losses and anticipated profits relating to such cancellation. Seller shall have the right to cancel the agreement upon prior notice to Buyer and upon such cancellation shall have no further duties or obligations to Buyer hereunder. All sales are custom built to order and are considered final once the checkout process has been completed, any changes and/or modifications to an order may result in change order charges being applied to the order and could impact production lead times.
TITLE AND RISK OF LOSS
Delivery Terms will be F.O.B. Seller’s shipping point; identification of the Product(s) is to occur when it leaves Seller’s shipping point at which time title and risk of loss will pass to Buyer. Unless specified by Buyer, Seller shall select the mode of transportation and the carrier. All right, title and interest in and to all items covered by Buyer's order are reserved to Seller until the full purchase price for all such times has been paid. Buyer hereby authorizes Seller to execute and file, at any time or times, one or more financing statements with respect to such items, signed only by Seller.
a. By Buyer
Buyer shall promptly notify Seller of its receipt of knowledge of any incident involving any Product either as a stand-alone Product or as a component part or raw material or consumable, sold hereto resulting in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such incident and shall make available to us all related statements, reports and tests made by Buyer or made available to Buyer by others. For purposes of this agreement, “Damage” means the aggregate of any and all claims, losses, costs, judgments, deficiencies, penalties, obligations, liabilities, damages, fines and expenses of any kind (including, without limitation, any special, incidental, consequential, punitive or any other indirect damages, and all reasonable attorneys’ fees and disbursements and court costs). Buyer agrees to indemnify, defend and hold harmless Buyer and its affiliates, and their respective directors, officers, employees, shareholders and agents (collectively, the “Seller Indemnitees”) with respect to the aggregate of all Damages incurred or suffered by any Seller Indemnitees arising out of or relating to: (1) any breach of, or default in the observance or performance of any agreement or failure to fulfill any other obligation that Buyer is required to perform or observe in this agreement; (2) any breach of or false or fraudulent, representation or warranty made by Buyer in this agreement; (3) any improper handling, installation, maintenance or care, improper use, use for any purpose or application for which the Product was not designed or intended, abuse or neglect, of the Product, by anyone other than Seller without Seller's prior written approval; (4) any removal of any necessary safety Product, device or guard or any warning/safety label or notice from the Product, by anyone other than Seller without Seller's prior written approval; (5) any alteration, modification, connection or repair of the Product, by anyone other than Seller without Seller's prior written approval; (6) any addition of any part, component or accessory (or any use thereof) that is: (a) added by anyone other than Seller without Seller's prior written approval; or (b) not supplied or approved in writing by Seller; (7) any use or operation of the Product by anyone other than Seller without Seller's prior written approval not in accordance with any storage, operation, maintenance or repair instructions furnished by Seller or any generally accepted industry practice; and/or (8) Buyer's failure to adequately train staff in the operations and maintenance of the Product.
b. By Seller
Seller hereby represents and warrants, to Seller’s actual knowledge, that (1) neither the Product nor any of our technology utilized in the Product: (i) infringes any valid United States patent, patent application, copyright, license, trade secret, know-how, trademark or any other intellectual property right; or (ii) constitutes any kind of wrongful use of any confidential information or proprietary information; and (2) no such claim is pending or threatened against Seller. Subject to Section 8(c), Seller agrees to indemnify, defend and save Buyer with respect to the aggregate of all Damages (excluding any special, incidental, consequential, punitive or any other indirect damages) incurred or suffered by Buyer arising out of or relating to any breach of or false or fraudulent representation or warranty made by Seller contained in the foregoing sentence.
c. Limitation in Indemnification.
d. Seller’s Right to Cure.
Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.
If the Products include computer programs ("Software"), the "sale" of such Software shall not constitute a sale or transfer of any proprietary rights in or to the Software but rather shall only constitute the right and license to use the Software in accordance with applicable specifications, instructions and license terms and conditions of the licensor.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SELLER HAVE ANY LIABILITY OF ANY KIND TO BUYER OR ANY OTHER PERSON, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR ANY OTHER THEORY OF LAW, FOR: (a) INDEMNITY (OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 9(b)); ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST TIME AND CONVENIENCE, COST OF A PRODUCT RENTAL, LOST REVENUES, LOSS OF USE, INTEREST OR CARRYING CHARGES ON INVESTMENT, EXPENSES ARISING FROM COSTS OF CAPITAL, REMOVAL OR REINSTALLATION, TRAVEL OR LODGING, UNDER-UTILIZATION OF LABOR, EQUIPMENT OR FACILITIES, OR ANY DAMAGES OF ANY KIND COVERED BY INSURANCE HOWEVER CAUSED (EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE); OR (c) ANY OTHER LOSSES, DAMAGES OR INJURIES OF ANY KIND TO BUYER OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, INJURY TO ANY PERSON OR ANY PROPERTY; RESULTING FROM OR ARISING OUT OF, WHETHER DIRECTLY OR INDIRECTLY, ANY OF THE FOLLOWING (PROVIDED, HOWEVER, (3) BELOW IN THIS SECTION 11 SHALL NOT APPLY WITH RESPECT TO SECTION 9(c) ABOVE): (1) ANY ACT OR OMISSION OF ANY KIND HEREUNDER BY BUYER OR ANY OTHER PERSON; (2) ANY USE OF THE EQUIPMENT (OR ANY COMPONENT THEREOF) BY BUYER OR ANY OTHER PERSON; (3) ANY PERFORMANCE, NONPERFORMANCE OR DELAY IN PERFORMANCE BY SELLER OF ANY OF ITS OBLIGATIONS UNDER THE AGREEMENT; OR (4) ANY BUYER REPRESENTATION, WARRANTY OR GUARANTEE RELATED TO SUBSECTIONS (1)-(3) ABOVE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL: (I) THE AGGREGATE COST BORNE BY SELLER FOR ANY REPAIR, REPLACEMENT OR MODIFICATION OF ANY EQUIPMENT EXCEED THE EQUIPMENT PURCHASE PRICE PAID BY BUYER FOR SUCH EQUIPMENT; AND (II) SELLER’S AGGREGATE LIABILITY TO BUYER AND ANY THIRD PARTY FOR LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF OR PURSUANT TO THE AGREEMENT OR THE USE OF THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, INJURY TO ANY PERSON OR PROPERTY, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EXCEED THE AGGREGATE PURCHASE PRICE PAID TO SELLER IN GOOD FUNDS FOR THE EQUIPMENT THAT IS SUBJECT TO THE APPLICABLE CLAIM.
(a) Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of an appropriate state court located in Wyoming County, New York or an appropriate federal court sitting in Wyoming County, New York in any action arising out of or relating to this agreement and waives any other venue to which it may be entitled by domicile or otherwise. (c) In the event of any legal proceeding between the Seller and Buyer relating to this agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this agreement must be brought within one (1) year from the date that the cause of action arose. (d) The application to this agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (f) Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for research only and is not to be used for any other purpose, including without limitation, or unauthorized commercial uses. (h) Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer's internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (i) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
ACCEPTABLE PAYMENT METHODS
Seller currently accepts the following online methods of payment: Visa, MasterCard, American Express and Discover. By submitting an order through Seller, Buyer authorizes Seller, or its designated payment processor, to charge the account specified for the purchase amount. The receipt of an order confirmation does not constitute Seller’s acceptance of an order. Prior to Seller’s acceptance of an order, verification of information and approval of the order may be required. Seller reserves the right to reject any order or purchase at any time. Buyer must be an authorized user of the credit card and must accurately provide the cardholder’s name, account number, expiration date, CVV2 Code and address where the credit card statement is shipped to. Buyer authorizes Seller to charge the amount requested to the provided credit card. If a charge is declined or reversed by the credit card issuer or network, Buyer agrees to pay Seller a reasonable service charge and to reimburse Seller for all reasonable costs of collection. All payments are to be made in United States Dollars.