CVF GENERAL TERMS AND CONDITIONS.
These General Terms and Conditions apply to all orders placed by purchasers (“Customers”) of products from CVF Motorsports, Inc. d/b/a CVF Racing, a Minnesota corporation (“CVF Motorsports”). These General Terms and Conditions are effective as of September 1, 2017 and supersede all prior versions.
1. Placing Orders. Customer may place orders directly through CVF Motorsports’ website, by telephone or by written purchase order. All orders placed, electronic, telephone or written, will be subject to these General Terms and Conditions. CVF Motorsports hereby rejects any and all terms of Customer’s purchase orders or ordering system that add to, vary from or conflict with these General Terms and Conditions. In the event of a conflict between a purchase order and these General Terms and Conditions, these General Terms and Conditions shall control. Any preprinted or special terms and conditions appearing on customer’s purchase orders or other business forms, including electronic forms, will only be binding on CVF Motorsports if specifically agreed to in writing by CVF Motorsports.
2. Prices and Taxes. Customer agrees to pay CVF Motorsports the prices set forth in the current price list appearing on CVF Motorsports’ website, as may be discounted by applicable dealer or distributor discounts, as determined by CVF Motorsports in its sole discretion. Customer may not set-off disputed amounts owed to CVF Motorsports. Sales, use, excise, value added or other applicable taxes, tariffs or duties shall be the sole responsibility of Customer. In the event that such taxes, tariffs or duties are assessed against CVF Motorsports, customer shall reimburse CVF Motorsports for any such amounts paid by CVF Motorsports or provide CVF Motorsports with valid tax exemption certificates with respect thereto. All prices are expressed in US Dollars, and all payments to CVF Motorsports shall be made in US Dollars.
3. Payment Terms. Each order shall be due prior to shipment and payable in full by credit card or ACH. In the event any amount owing to CVF Motorsports is not paid when due, CVF Motorsports may, at its sole discretion and without limitation as to its other remedies, suspend furnishing any further products. All past due amounts shall accrue interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by law. Customer shall pay CVF Motorsports for all of its costs and expenses, including but not limited to reasonable attorneys’ fees, in connection with collection or pursuit of any monies owed to CVF Motorsports.
4. Shipping, Title and Acceptance. All shipments of products shall be FCA (Incoterms) from CVF Motorsports’ facility. Title to and all risk of loss or damage shall pass to Customer immediately upon tendering products to a common carrier or private carrier designated by Customer. Customer shall provide a UPS or FedEx number for shipping on Customer’s account or shall arrange for freight shipments to be picked up. In the event that Customer does not notify CVF Motorsports in writing within 48 hours of delivery of non-conforming goods, then such goods shall be deemed accepted. After acceptance, customer’s sole and exclusive remedy shall be, as set forth in the return policy and thereafter, in, the Limited Lifetime Warranty.
5. Drop Shipping. A 5% drop ship fee may be charged on drop ship orders.
6. Cancellations and Returns. Customer may generally cancel an order in the first 24 hours and receive a full refund for such cancellation. Customer may return products to CVF Motorsports within thirty (30) days of purchase. All such returned products must arrive at CVF Motorsports’ facility freight prepaid by Customer, be free from bolt marks, blemishes and damage and be suitable for resale by CVF Motorsports as new products, all as determined by CVF Motorsports in is sole and absolute discretion. CVF Motorsports may charge a 15% restocking fee on opened products. Frequent or excessive returns, or other abuse of this return policy, may result in termination of Customer’s account at the sole and absolute discretion of CVF Motorsports.
7. Stock Outs. CVF Motorsports may experience stock outs from time to time. Customer’s sole and exclusive remedy in the event that CVF Motorsports cannot fill and order due to a stock out or fills an order partially or incompletely will be cancellation of the impacted order and a refund of Customer’s money actually paid to CVF Motorsports for such impacted order.
8. Force Majeure. In the event that CVF Motorsports is prevented from performing, or is unable to perform, any of its obligations by circumstances beyond its reasonable control, including, without limitation, fire, explosion, power outages, Internet outages, cyber-attacks or viruses, acts of God, war or other hostilities, civil commotion, and domestic or foreign governmental acts, orders or regulations (“Force Majeure Event”), then CVF Motorsports’ failure to perform shall be excused and the time for performance shall be equitably extended for the period of delay or inability to perform due to such Force Majeure Event.
9. Installation. CVF Motorsports strongly recommends that all CVF Motorsports products be installed by a certified mechanic. CVF Motorsports accepts no liability whatsoever for the installation or improper installation of any of its products.
10. Product Changes. CVF Motorsports may, at its sole and absolute discretion, change or discontinue any product.
11. Limited Lifetime Warranty. CVF Motorsports provides a limited lifetime warranty (the “Limited Warranty”) to the original retail purchaser of products purchased from CVF Motorsports which, after inspection by CVF Motorsports, are found to have a defect in either material or workmanship. Damage caused by misuse, abuse, improper installation or any cause not directly related to a defect in materials or workmanship is excluded. To obtain the benefit of the Limited Warranty, Customer must (1) register the product with CVF Motorsports (online or in writing) within 90 days of purchasing the product and include the Vehicle Identification Number (VIN) for the vehicle the product is installed on (2) return the product at Customer’s expense to CVF Motorsports, , and (3) state in writing the alleged defect with reasonable specificity. If all of the above procedures are followed, and CVF Motorsports determines the product is defective in either material or workmanship, CVF Motorsports shall, within sixty (60) days after such determination, either repair or replace the product, at its sole election and cost, and return the repaired or replaced product to you at CVF Motorsports’ expense. This Limited Warranty is non transferrable by Customer and only applies to the vehicle the product is registered to. Furthermore, this Limited Warranty only applies to the mechanical function of the product and does not cover oxidation or cosmetic issues.
The Limited Warranty does not cover or apply to any damage sustained to the engine or other parts which may have been caused by the defective product, labor charges or any other incidental costs or damages caused by the defective product.
This Limited Warranty is the only express warranty which applies to CVF Motorsports products and is given in lieu of any other warranty, expressed or implied. to the maximum extent permitted by law, CVF Motorsports disclaims the implied warranties of merchantability and fitness for a particular purpose. Any implied warranty including that of merchantability and/or fitness for a particular purpose that cannot be disclaimed is hereby limited by the same terms and time limitations set forth in this limited warranty. The remedy of repair or replacement is the sole and exclusive remedy given for a breach of the limited warranty, even if such remedy fails of its essential purpose. You may have rights under either State or Federal law, including laws governing warranties, which you should consult. Not withstanding anything in this section to the contrary, this section shall not be construed to relieve CVF Motorsports of warranties or liabilities imposed by local law that cannot be avoided, reduced or eliminated by contract among private parties.
12.Limitation of Liability. CVF Motorsports’ total liability to customer shall be limited to an amount equal to the lower of: (A) the amount that customer has actually paid to CVF Motorsports under the applicable order upon which the claim is based, or (B) the amount that customer has actually paid CVF Motorsports in the previous 12 months. In no event shall CVF Motorsports be liable for punitive damages, indirect damages, special damages, incidental damages, consequential damages or for damages resulting from loss of profits, or interruption of business, regardless of the form of action (whether in contract, tort, negligence, strict liability, statutory liability or otherwise) and regardless of whether CVF Motorsports was made aware of the possibility of such damages or losses.
13. Non-Disparagement. Customer shall not, at any time directly or indirectly, engage in any form of conduct, take any action, make any statement or representation, oral or written, or by any combination thereof or by any other means act in a manner that injures or is detrimental to the reputation or goodwill of CVF Motorsports or its products.
14. Remedies. Customer agrees and understands that a breach or threatened breach of any of the covenants or agreements set forth in Section entitled “Non-Disparagement” of these General Terms and Conditions will cause CVF Motorsports irreparable harm for which there is no adequate remedy at law, and, without limiting whatever other rights and remedies CVF Motorsports may have at law or in equity, Customer consents to the issuance of a court order in favor of CVF Motorsports requiring specific performance of and/or enjoining the breach of any of such covenants by Customer. If any or all of such covenants are held to be unenforceable because of the scope or duration of such covenant or agreement, the parties agree that the court or arbitrator making such determination shall have the power to reduce or modify the scope and/or duration of such covenant to the extent that allows the maximum scope and/or duration permitted by applicable law.
15. Legal Relationship. Customer shall purchase and sell all products in its own name, for its own account and at its own risk. Neither party shall have the authority to bind the other by any act or representation unless specifically authorized by the other in writing. Nothing in the parties’ relationship, whether written, oral or course of dealings, shall be deemed to create an employment, agency, sales representative, franchise or business opportunity and no similar relationship is intended or created hereby other than the relationship of manufacturer and customer.
16. Survival. Notwithstanding the completion of an order or the cessation of commercial relations between the parties, the General Terms and Conditions shall survive.
17. Miscellaneous. These General Terms and Conditions, Customer’s Reseller Agreement (if applicable), and the accepted purchase order (each, a separate “Contract”) represents the entire agreement between the parties with respect to the subject matter herein and therein and supersedes all prior or contemporaneous agreements, discussions or representations, oral or written with respect to such subject matter. In the event of a conflict between the documents of the Contract, the order of priority shall be first the Reseller Agreement (if applicable), next these General Terms and Conditions, and last the purchase order. No waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. If for any reason any provision of the Contract is determined by a court of competent jurisdiction or arbitrator to be unenforceable or invalid, such provision shall be deemed severed from the Contract and the remaining provisions shall be carried out with the same force and effect as if the severed provision or part thereof had not been a part of the Contract. There are no third party beneficiaries to a Contract. The Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. The descriptive headings for the several sections of these General Terms and Conditions are inserted for convenience only and not to confine or limit any of the terms or provisions hereof.
18. Class Action Waiver. Customer hereby waives its rights to file a class action lawsuit or demand for combined arbitration. any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. customer shall not seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which customer acts or proposes to act in a representative capacity. no arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
19. Governing Law and Language. The Contract shall be governed by and construed in accordance with the laws of the State of Minnesota in the United States of America (excluding chapter 80C). The United Nations Convention on Contracts for the International Sale of Goods shall not apply. To the extent the Contract or any documents related thereto are translated into languages other than English, only the English version shall be controlling.
20. United States Venue. International Arbitration. If Customer is located in the United States of America, the sole and exclusive jurisdiction and venue for actions arising under the Contract will be the federal and state courts located in Minneapolis, Minnesota in the United States of America. Customer agrees to this exclusive venue, to personal jurisdiction of these courts, to process of service in accordance with their rules of civil procedure and waives any objection that this venue is not convenient. If Customer is located outside of the United States of America, then the following binding arbitration agreement will apply: In the event of any dispute between Customer and CVF Motorsports arising out of or in connection with the Contract, we will submit the dispute to binding arbitration in Minneapolis, Minnesota in accordance with the Rules of Arbitration of the American Arbitration Association (“AAA”) then in effect. Arbitration will be conducted in the English language. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the forgoing, CVF Motorsports may institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.