M3 (F80 | 2014-2019) – Page 26

THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THEM CAREFULLY.

THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY) TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM OUR WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM OUR WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT, OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.

These terms and conditions (these "Terms") apply to the purchase and sale of products and services from KIES MOTORSPORTS, LLC (the “Company”) through www.kiesmotorsports.com (the "Site"). These Terms are subject to change by the Company (referred to as "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the "Last Updated” date referenced above or on the Site. You should review these Terms prior to purchasing any product or services that are available through the Site. Your continued use of the Site after the "Last Updated” date will constitute your acceptance of and agreement to such changes.

Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.

Prices and Payment Terms.

All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.

Shipments; Delivery; Title and Risk of Loss.

We will arrange for shipment of the products you order through the Site to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges unless otherwise specified in the order confirmation.

Title and risk of loss pass to you upon our transfer of the products to the carrier/delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

ALL SALES FINAL. ALL SALES AND PURCHASES THROUGH THE SITE ARE FINAL UNLESS WE EXPRESSLY AGREE OTHERWISE IN WRITING. WE DO NOT ACCEPT RETURNS OR OFFER REFUNDS ON ANY PRODUCTS OR SERVICES SOLD THROUGH THE SITE.

Manufacturer's Warranty and Disclaimers.

We do not manufacture or control any of the products offered on our Site. Accordingly, we do not provide any warranties with respect to the products offered on our Site. However, the products offered on our Site may be covered by the manufacturer's warranty as included with the product. To obtain warranty service for defective products, please follow the instructions included in the manufacturer's warranty.

We do not provide any warranty or guarantee (whether express or implied) with respect to the services offered through our Site (e.g., installation of third-party products by the Company or its agents).

ALL PRODUCTS AND SERVICES OFFERED ON THIS SITE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) 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 WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.

COMPLIANCE WITH LAWS. YOU UNDERSTAND AND ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY AND OBLIGATION TO DETERMINE WHETHER YOUR PURCHASE, INSTALLATION OR USE OF ANY PRODUCT OR SERVICE OFFERED OR SOLD ON THE SITE COMPLIES WITH ALL APPLICABLE LAWS, INCLUDING, WITHOUT LIMITATION, ALL U.S. FEDERAL, STATE AND LOCAL LAWS AS WELL AS THE LAWS OF ANY FOREIGN JURISDICTION(S) THAT MAY APPLY TO YOU. THE COMPANY SHALL NOT BE LIABLE FOR, AND YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE COMPANY AND ITS MEMBERS, MANAGERS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST, ANY AND ALL CLAIMS, LOSSES OR LIABILITIES WHATSOEVER ARISING OUT OF OR RELATED TO:

YOUR PURCHASE, INSTALLATION OR USE OF ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY;

YOUR MISUSE OF ANY PRODUCT OR SERVICE PURCHASED FROM THE COMPANY; OR

YOUR FAILURE TO COMPLY WITH ALL APPLICABLE LAWS, INCLUDING, WITHOUT LIMITATION, FEDERAL AND STATE EMISSIONS AND SAFETY REGULATIONS, TRAFFIC LAWS, AND LOCAL NOISE ORDINANCES, IN CONNECTION WITH THE USE OF ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY.

ACKNOWLEDGMENT OF EMISSIONS RESTRICTIONS. YOU UNDERSTAND AND ACKNOWLEDGE THAT CERTAIN PRODUCTS AVAILABLE FOR PURCHASE AT THE SITE ARE INTENDED FOR OFF-ROAD OR TRACK/COMPETITION USE ONLY AND ARE NOT INTENDED FOR PUBLIC STREET OR HIGHWAY USE IN ANY JURISDICTION WHERE APPLICABLE LAW RESTRICTS OR PROHIBITS SUCH USE. WE HAVE DONE OUR BEST TO IDENTIFY SUCH PRODUCTS CLEARLY ON THE SITE. HOWEVER, IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR PURCHASE, INSTALLATION OR USE OF ANY PRODUCT OR SERVICE OFFERED OR SOLD ON OUR SITE COMPLIES WITH ALL APPLICABLE LAWS. THE COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR CLAIM (EXPRESS OR IMPLIED) TO YOU OR ANY OTHER PARTY REGARDING THE EMISSIONS COMPLIANCE OR EMISSIONS PERFORMANCE OF, OR THE LEGALITY FOR PUBLIC STREET OR HIGHWAY USE OF, THE PRODUCTS AND SERVICES PROVIDED BY THE COMPANY. FOR MORE INFORMATION REGARDING PRODUCT EMISSIONS COMPLIANCE, CONSULT WITH THE PRODUCT’S MANUFACTURER.

Vehicle Warranties. In no event will the Company be liable or responsible to you for any loss of coverage under, denial of coverage under, or alteration or change to the terms of, any manufacturer’s or aftermarket warranty covering your vehicle that results from (directly or indirectly) the installation or use of any product or service purchased from the Company. For more information about warranty coverage and after-market parts, please refer to the Frequently Asked Questions section of the Site at https://www.kiesmotorsports.com/faq/.

Goods Not for Resale or Export. You represent and warrant that you are buying products or services from the Site for your own use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to the location you identified in your order at the Site.

Limitation of Liability.

IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH OUR SITE.

The limitation of liability set forth in Section 11(b) shall (i) only apply to the extent permitted by law, and (ii) not apply to any liability resulting from our gross negligence or willful misconduct.

Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey.

Dispute Resolution and Binding Arbitration.

YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 14. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR THE COMPANY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 15 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.

No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.

Notices.

To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.

To Us. To give us notice under these Terms, you must contact us by either (i) using the “Contact Us” form provided at the Site (https://www.kiesmotorsports.com/contact), or (ii) contacting us by email at info@kiesmotorsports.com. We may update the method for notices to us by posting a notice on the Site. Notices provided by electronic transmission will be effective one business day after they are sent.

Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

Entire Agreement. These Term, together with any order conformation or invoice we issue to you, will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.

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