TERMS AND CONDITIONS FOR THE ONLINE SALE OF GOODS AND SERVICES of
Zestek Racing LLC

THESE TERMS AND CONDITIONS ("TERMS AND CONDITIONS") AND ANY ORDERS
(AS DEFINED HEREIN) FORM A BINDING AGREEMENT BETWEEN ZESTEK RACING LLC
(“ZESTEK”), AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY THAT YOU
REPRESENT (YOU AND/OR YOUR COMPANY OR LEGAL ENTITY MAY BE COLLECTIVELY
REFERRED TO AS “YOU” OR “BUYER”) FOR YOUR PURCHASE OF CERTAIN EQUIPMENT
AND USE OF CERTAIN SERVICES (AS DEFINED HEREIN).

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BY CLICKING THE "I ACCEPT" BUTTON YOU AGREE TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT
ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE
AUTHORIZED TO BIND THAT COMPANY OR LEGAL ENTITY TO THIS AGREEMENT. IF YOU
DO NOT HAVE SUCH AUTHORITY OR ARE UNWILLING OR UNABLE TO BE BOUND BY
THIS AGREEMENT, DO NOT CLICK “I ACCEPT” AND DO NOT ACCESS OR USE THE
SERVICES.

BY USING CLICKING “I ACCEPT”, YOU WARRANT THAT: (A) YOU ARE 18 YEARS OF
AGE OR OLDER AN OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (B) YOU ARE
COMPETENT TO UNDERSTAND AND ABIDE BY THE AGREEMENT; (C) YOU HAVE READ
AND UNDERSTAND THE AGREEMENT AND THAT THE TERMS OF THE AGREEMENT ARE
VALID; AND (D) YOU AGREE TO ABIDE BY THE AGREEMENT DURING YOUR USE OF THE
EQUIPMENT, SERVICES, SYSTEM, AND SOFTWARE.

 

1. Definitions. As used in this Agreement, the following terms shall have the meaning described
herein, and shall include the plural as well as the singular.

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• (a) “Agreement” shall mean these Terms and Conditions and the Order

• (b) “Buyer Data” shall mean the data obtained by Zestek through Buyer’s use of the System.

• (c) “Equipment” means the particular equipment provided Zestek to Buyer hereunder.

• (d) “Equipment Software” means the Software embedded in or loaded onto the Equipment or (if applicable) the Customer’s computer or network.

• (e) “Fees” shall mean the fees set forth in an applicable Order.

• (f) “Intellectual Property” shall mean any and all patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, mask works, know-how, trade secrets, and proprietary information.

• (g) “Services” shall mean any services provided to Buyer hereunder, including without limitation the Performance Services.

• (h) “Software” shall mean the Equipment Software and any software Buyer is able to access through their use of the System, including limitation any computer programs, object code, source code, graphics, and user interfaces related to the foregoing. “System” shall mean Zestek’s [OEM hub studio/ C] system, including without limitation the Software.

• (j) “Order” shall mean an online form that incorporates by reference these Terms and Conditions.

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2. Purchase of Equipment and Services. Buyer agrees that the Order is an offer to buy, under the Terms and Conditions, all Equipment or Services listed in the Order. All Orders must be accepted by Zestek or Zestek will not be obligated to sell the Equipment or Services to Buyer. Zestek may choose not to accept Orders at its sole discretion.

• (a) Shipments; Delivery; Title and Risk of Loss.

  • (i) The purchased Equipment will be delivered within a reasonable time after Zestek’s acceptance of the Order, subject to availability of finished Equipment.

  • (ii) Zestek will arrange for shipment of the Equipment to Buyer. Buyer will pay all shipping and handling charges.

  • (iii) Title and risk of loss pass to Buyer upon Zestek’s transfer of the Equipment to the carrier/delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. Zestek is not liable for any delays in shipments. International shipments may result in extended delivery times.

  • (iv) Any Zestek liability for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or adjusting the invoice respecting such Equipment to reflect the actual quantity delivered.

• (b) Returns and Refunds.

  • (i) Except for any Equipment designated as non-returnable, Zestek will accept a return of the products for a refund of the purchase price less the original shipping and handling costs, provided such return is made within 30 days of delivery with valid proof of purchase and provided such products are returned in their original condition. To return products, Buyer must call [Telephone Number] or email the Returns Department at [Returns Email] to obtain a Return Merchandise Authorization ("RMA") number before shipping the Equipment. No returns of any type will be accepted without an RMA number.

  • (ii) Buyer agrees to assume all responsibility for all shipping and handling charges on returned items unless otherwise specified or agreed in writing. Buyer bears the risk of loss during the return shipment. Zestek, therefore, strongly recommends that Buyer fully insure the return shipment against loss or damage and that Buyer use a carrier that can provide proof of delivery. [All returns are subject to a [10% restocking fee.]

  • (iii) Refunds are processed within approximately three (3) to five (5) business days
    following receipt of merchandise. Refunds will be credited back to the same payment method used to
    make the original purchase. Zestek offers no refunds on any Equipment designated as non-returnable.
    (iv) For defective returns, please refer to the manufacturer's warranty set forth below.

• (c) Manufacturer’s Warranty.

  • ​(i) One Year Warranty: Subject to Buyer’s registration of the purchase of Equipment with Zestek, Zestek warrants to Buyer that, for a period of twelve (12) months from the date of purchase (the "Warranty Period"), the Equipment will materially conform to Zestek's published specifications in effect as of the date of shipment and will be free from material defects in workmanship, material, and design, and shall be fit for their intended purpose and operate as intended.

  • (ii) Exclusions: This limited warranty does not cover any damage to the Equipment due to any of the following: (1) physical damage caused by the Buyer, user, or caused during the course of shipping and handling; (2) Improper use, installation, or maintenance; (3) modifications or alterations to the Equipment; and (4) wear and tear under normal use.

  • (iii) Third Party Product: Goods manufactured by a third party ("Third Party Products") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Equipment. Third-Party Products are not covered by the warranty in this Section 2(d),

FOR THE AVOIDANCE OF DOUBT, ZESTEK 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. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF
IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
YOU AFFIRM THAT ZESTEK SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR
ANY BREACH OF WARRANTY CLAIMS OUTSIDE OF THIS SECTION 2(D) OR FOR ANY
DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY
OBLIGATIONS TO YOU.

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  • (iv) Warranty Claims: To initiate a warranty claim, please contact Zestek customer service at [Customer Service Email]. Zestek shall not be liable for a breach of the warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Zestek within the Warranty Period; (ii) Zestek is given a reasonable opportunity after receiving the notice to examine such Equipment and (iii) Zestek reasonably verifies Buyer's claim that the Equipment is defective.​

  • (v) Exclusive Remedies: Subject to Buyer’s compliance with the terms of this Agreement, with respect to any defective Equipment during the Warranty Period, Zestek shall, in its sole discretion, either: (i) repair or replace such Equipment (or the defective part) or (ii) credit or refund the price of such Equipment at the pro rata contract rate provided that, if Zestek so requests, Buyer shall, at Zestek's expense, return such Equipment to Zestek. The remedies set forth in Section 2(d)(v) shall be the Buyer's sole and exclusive remedy and Zestek's entire liability for any breach of the limited warranty set forth in Section 2(d).

• (d) NOTICES AND DISCLAIMERS

  • (I) INTENDED USE: BUYER PROVIDES EQUIPMENT INTENDED AND
    DESIGNED SOLELY FOR USE IN RACING AND OFF-ROAD APPLICATIONS. THIS
    EQUIPMENT IS NOT DESIGNED FOR USE ON PUBLIC ROADS OR HIGHWAYS AND MAY
    NOT COMPLY WITH CERTAIN LEGAL REQUIREMENTS FOR STANDARD VEHICLES.

  • (II) INHERENT RISK: AS WITH ANY RACING ACTIVITY, BUYER
    ACKNOWLEDGES AND ACCEPTS ALL RISKS ASSOCIATED WITH THE USE OF THE
    EQUIPMENT. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ZESTEK WILL NOT
    BE LIABLE FOR ANY INSTALLATIONS, MODIFICATIONS OR ALTERATIONS OF THE
    EQUIPMENT.

  • (iii) NON-RESPONSIBILITY FOR INCIDENTS: TO THE MAXIMUM
    EXTENT ALLOWABLE UNDER APPLICABLE LAW, ZESTEK SHALL NOT BE RESPONSIBLE
    OR LIABLE FOR ANY LOSS, DAMAGE, INJURY, OR DEATH RESULTING FROM THE USE,
    MISUSE, OR FAILURE OF THE EQUIPMENT. THIS NON-RESPONSIBILITY INCLUDES BUT IS
    NOT LIMITED TO DIRECT OR INDIRECT LIABILITY ARISING OUT OF OR RESULTING FROM
    THE USE OF THE EQUIPMENT IN ANY MANNER. ZESTEK HOLDS NO RESPONSIBILITY
    EITHER IMPLIED OR OTHERWISE FOR BUYER’S USE OF SUCH EQUIPMENT OR ANY
    MECHANICAL, ELECTRICAL OR OTHER FAILURE WHEN USING THE PRODUCTS. BUYER
    SHALL COMPLY WITH ALL LAWS, RULES, REGULATIONS AND ORDERS, AND ALL
    APPLICABLE RESTRICTIONS IMPOSED BY ALL GOVERNMENTAL AUTHORITIES,
    APPLICABLE TO THE INSTALLATION, ALTERATION AND USE OF ANY EQUIPMENT SOLD
    BY ZESTEK AND ZESTEK SHALL NOT BE LIABLE FOR BUYER’S NONCOMPLIANCE WITH
    ANY OF THE FOREGOING.

  • (IV) COMPLIANCE WITH SAFETY STANDARDS: BUYER WILL ENSURE
    ALL EQUIPMENT IS INSTALLED, MAINTAINED, AND OPERATED IN A MANNER THAT
    FOLLOWS ESTABLISHED SAFETY STANDARDS AND PRACTICES. ZESTEK RECOMMENDS
    REGULAR INSPECTION AND MAINTENANCE OF RACING EQUIPMENT BY QUALIFIED
    PROFESSIONALS.

  • (V) UNAFFILIATED EQUIPMENT: ZESTEK WILL NOT BE LIABLE FOR
    ANY ISSUES ARISING FROM THE USE OF ANY EQUIPMENT IN CONJUNCTION WITH
    PRODUCTS OR COMPONENTS NOT MANUFACTURED OR SOLD BY ZESTEK.
    COMPATIBILITY AND SAFETY ARE THE SOLE RESPONSIBILITY OF THE BUYER. CERTAIN
    UNAFFILIATED PRODUCTS MAY NOT BE COMPATIBLE WITH THE EQUIPMENT AND
    COULD ADVERSELY AFFECT THE PERFORMANCE OF OTHER PARTS OR THE VEHICLE.
    THE BUYER SHALL DETERMINE THE ULTIMATE SUITABILITY AND SAFETY OF THE
    PRODUCT/EQUIPMENT FOR ITS INTENDED USE, AND THE BUYER AND/OR USER ASSUMES
    ALL RESPONSIBILITY AND RISK IN CONNECTION THEREWITH.

3. Licenses

• (a) System License. Subject to the terms and provisions of this Agreement, including without limitation the Order, Zestek hereby grants to Buyer a limited, fully revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the System solely for Buyer’s personal use.

• (b) Software License. Subject to the terms and conditions set forth herein, Zestek hereby grants to Buyer a limited, non-exclusive, non-transferable, revocable, and non-sublicensable license to use the Software solely to the extent necessary for Buyer to use of the System.

• (c) Restrictions on Use. Buyer will not, and will not permit any third-party to: (i) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the System or Software; (ii) use the System or Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code; (iv) upload or install any malware into the Software or System (including but not limited to any virus, Trojan horses, worms, time bombs, spyware, adware, or cancelbots); (v) use the System or Software other than in accordance with this Agreement and other than in compliance with all applicable laws and regulations; (vi) share non-public System or Software features with any third party; or (vii) access the System or Software in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the System or Software, or

• copy any ideas, features, functions or graphics of the System or Software.
  (d) Termination. Zestek may terminate any license granted hereunder at its sole and
  absolute discretion by providing Buyer with notice.

4. Intellectual Property

• (a) Zestek Intellectual Property. As between the Parties, Zestek retains all right, title, and interest in and to the any and all Intellectual Property associated with the System and Services, including without limitation the Software, and any and all graphics, user interfaces, logos, and trademarks used in or reproduced through the System or Software. This Agreement does not grant Buyer any intellectual property license or rights in or to the System and Services or any component or aspect thereof, except to the limited extent that this Agreement specifically sets forth. Buyer recognizes that the System and Services or any component or aspect thereof are protected by copyright and other laws.

• (b) Feedback. Zestek has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Buyer provides to Zestek, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Zestek’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Buyer. Buyer hereby grants to Zestek a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying the System or Services.)

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5. Fees and Payment. Unless otherwise agreed to by the Parties, Buyer will pay Zestek the Fees described in the Order at the time of purchase. Buyer represents and warrants to Zestek that (i) the credit card information Buyer provides is true, correct, and complete, (ii) Buyer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Buyer will be honored by Buyer’s credit card company, and (iv) Buyer will pay charges incurred by Buyer at the posted prices, including shipping and handling charges and all applicable taxes.

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6. Performance Services. In connection with Buyer’s use of the System, Zestek may provide Buyer
with access to reports or other information related Buyer’s use of the Equipment (“Performance
Services”). Zestek’s ability to provide the Performance Services is directly dependent on whether Buyer
uploads certain Buyer Data to the System via the internet. Zestek may at any time terminate, modify, or
suspend Buyer’s ability to access and use Performance Services at Zestek’s sole and absolute discretion.

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7. Representations and Warranties and Disclaimers

• (a) Buyer Warranties. Buyer makes the following representations and warranties: (i) Buyer has the requisite power and authority to enter into this Agreement and perform its obligations hereunder; (ii) Buyer’s provision of any Feedback shall not violate applicable law or the rights of any third parties, including without limitation the Intellectual Property rights of any third party; and (iii) Buyer has the full right and authority to provide Zestek with the Buyer Data and Buyer’s provision of the Buyer Data shall not violate applicable law or the rights of any third party, including without limitation the Intellectual Property rights of any third party.

• (b) DISCLAIMERS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE
  EQUIPMENT, SYSTEM, SERVICES, AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND
  “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ZESTEK
  MAKES NO OTHER WARRANTIES WITH RESPECT TO THE EQUIPMENT, SYSTEM, SERVICES
  OR SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
  WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET
  ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NONINFRINGEMENT AND ALL SUCH
  WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. WITHOUT LIMITING THE
  GENERALITY OF THE FOREGOING: (A) ZESTEK DOES NOT REPRESENT OR WARRANT
  THAT THE EQUIPMENT, SYSTEM, SERVICES OR SOFTWARE WILL PERFORM WITHOUT
  INTERRUPTION OR ERROR; AND (B) ZESTEK MAKES NO WARRANTIES THAT ANY OUTPUT
  OR RESULT GENERATED FROM THE USE OF THE EQUIPMENT, SYSTEM, SERVICES OR
  SOFTWARE WILL MEET BUYER’S REQUIREMENTS.

8. LIMITATION OF LIABILITY. ZESTEK SHALL NOT BE LIABLE FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, ANY LOSS OF DATA, BUSINESS OR PROFITS, WHETHER OR NOT
FORESEEABLE AND WHETHER OR NOT BASED ON BREACH OF WARRANTY, CONTRACT,
OR NEGLIGENCE IN CONNECTION WITH THIS AGREEMENT OR THE SYSTEM OR
SOFTWARE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. ZESTEK’S AGGREGATE LIABILITY FOR ANY DAMAGES RELATED TO THIS
AGREEMENT WILL NOT IN ANY EVENT EXCEED ALL FEES PAID TO ZESTEK HEREUNDER.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED
REMEDY TO MEET ITS ESSENTIAL PURPOSE.

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9. Indemnity. Buyer shall indemnify, defend and hold harmless Zestek, its affiliates, officers,
directors, employees, agents and customers from and against any and all loss, liability, cost, damages and
expense, including attorneys' fees, which may be incurred by Zestek in connection with any in connection
with any claims, actions, or demands by a third party arising out of or related to (i) the gross negligence or
willful misconduct of Buyer, or its employees or agents; (ii) Buyer’s violation of applicable law; (iii)
Buyer’s use of the System and/or Software.

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10. DATA

• (a) Use of Buyer Data. Zestek shall use, store, disclose, and otherwise process the Buyer Data: (i) for the purpose of performing under this Agreement; (ii) pursuant to documented instructions from Buyer, (iii) in accordance with its privacy policy, which is available at WIX, or (iv) when required to do so by applicable law, and Zestek informs Buyer of that legal requirement before processing and minimizes any disclosures to the maximum extent permitted by law.

• (b) Aggregate Data. Notwithstanding anything to the contrary herein, Zestek may use,
  reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
  (“Aggregate Data” refers to Buyer Data with personally identifiable information removed.).

 

11. MISCELLANEOUS

• (a) Amendment. This Agreement may not be amended except in a writing executed by authorized representatives of Buyer and Zestek.

• (b) Assignment. This Agreement may not be assigned by Buyer without the prior written consent of the Zestek. This Agreement binds the Parties, their respective affiliates, successors and permitted assigns.

• (c) Binding Effect and Third-Party Beneficiary. Except as specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.

• (d) Waiver of Rights. Except where specifically stated to the contrary, all remedies available

• to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.

• (e) Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.

• (f) Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of Michigan, United States of America, (“Michigan”), except to the extent preempted by federal law. The sole jurisdiction and venue for any litigation arising out of this Agreement will be the federal or state courts located in Michigan.

• (g) Entire Agreement. This Agreement contains the final and entire agreement of the Parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter. This Agreement prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted a purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend this Agreement.

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