Terms of service

• These terms and conditions of sale (these "Terms") are the only terms that govern the sale of all goods and products by SKM (defined below) whether modified or originally manufactured by SKM, in whatever form, ("Goods") by Stu Kelly Motorsports, Inc., an Indiana corporation ("SKM") to the buyer named on the Order Confirmation (as defined below) ("Buyer"). Collectively Buyer and SKM are referred to as the "Parties" and individually as "Party."  

• The accompanying order confirmation (the "Order Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. SKM expressly rejects Buyer's general terms and conditions of purchase, and fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within two (2) business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms. 

Delivery.  

• The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of the Goods. Delivery dates given by SKM are estimates only and are subject to shipping variations and requirements. If any Goods are lost, damaged, stolen, or otherwise not received through and after delivery, Buyer shall notify SKM at info@stukellymotorsports.com; SKM shall use reasonable efforts to ensure ultimate delivery of the original Goods reasonable replacement of the same, or refund. 

• SKM shall deliver the Goods to the location specified by Buyer and accepted as deliverable by Seller via Order Confirmation received by SKM, subject to shipping costs allocated and attributed therein (the "Delivery Point") using SKM's standard methods for packaging and shipping such Goods. SKM is not liable for errors or omissions by Buyer in submitting delivery information including address; SKM is only responsible for shipment to the address as entered on the Order Confirmation.  

• SKM may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. 

• Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to SKM a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Indiana Uniform Commercial Code. 

• Amendment and Modification. Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party. 

Price.  

• Buyer shall purchase the Goods from SKM at the prices (the "Prices") set forth in SKM's published price list in force as of the date of the Order Confirmation.   

• All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, SKM's income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer as shown at the point of purchase.  

Payment Terms.  

• Buyer shall pay SKM all amounts due at the time of purchase shown on the Order Confirmation, unless explicitly permitted by SKM and SKM confirms (within the Order Confirmation or elsewhere) the payment terms and obligations associated with such payment schedule or plan. All payments hereunder shall be in US dollars (credit cards accepted) and made by those methods identified on SKM’s checkout and payment submission process. SKM reserves the right to require pre-payment in its sole discretion. 

• Buyer shall pay interest on all late payments at the lesser of the rate of Ten percent (10%) per month or the highest rate permissible under applicable law. Buyer shall reimburse SKM for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which SKM does not waive by the exercise of any rights hereunder), SKM shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SKM, whether relating to SKM's breach, bankruptcy, or otherwise. 

Limited Warranty. SKM warrants to Buyer that: 

• for a period of one (1) year from the date of delivery of the Goods (the "Warranty Period"), the Goods will materially conform to SKM's published specifications and intended use in effect as of the date of order under the corresponding Order Confirmation; and  

• Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens. 

Buyer's Exclusive Remedy for Breach of Warranty. During the Warranty Period: 

• Buyer shall notify SKM, in writing, of any alleged warranty claim within Seven (7) days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period); 

• Buyer shall ship the relevant Goods within Five (5) days of the date of its notice to SKM, at its risk of loss, to SKM's facility located at 6760 East County Road 100, South Avon, Indiana 46123 for inspection and testing by SKM; 

• If SKM's inspection and testing reveals, to SKM's satisfaction, that such Goods do not conform with the limited warranty set forth herein, SKM shall in its sole discretion, and at its expense (subject to Buyer's compliance with this Section 8), either (i) repair or replace such Goods, or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and 

• If SKM exercises its option to repair or replace, SKM shall, after receiving Buyer's shipment of such Goods, ship to Buyer, at SKM’s cost and Buyer's risk of loss, the repaired or replacement Goods to 6760 East County Road 100, South Avon, Indiana 46123. 

• Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 8. In no event shall Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party. 

• THIS SECTION 8 SETS FORTH THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SKM'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7. 

• WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 7, THE DISCLAIMERS IN THIS SECTION 9 AND ELSEWHERE IN THESE TERMS APPLY AND SUPERSEDE ANY UNDERSTANDING OR TERM TO THE CONTRARY. This disclaimer (“Disclaimer”) applies to all products, parts, and accessories sold by STU KELLY MOTORSPORTS INC., an Indiana corporation (“SKM”) (the products, parts, and accessories, the “Products”). Products are engineered and manufactured for legal use in racing, drifting, and other off-road uses. These Products are not designed, approved, or intended for use on public roads, highways, or any other areas where the use is not permitted by applicable traffic laws or regulations. Modifying a vehicle with these parts may render it non-compliant with local, state, or federal laws, including but not limited to emissions, noise, and safety standards. The purchaser, end user, Buyer in these Terms, is responsible for identifying any such limitation, regulation, or prohibition. SKM is not responsible for, and fully disclaims, any responsibility for identifying where legal and appropriate use of the Products is. The sale of Products does not constitute an endorsement, approval, or encouragement of any use, including illegal or impermissible use by SKM. It is solely the responsibility of the Buyer to understand and comply with all applicable laws and regulations. By purchasing or installing Products, Buyer acknowledges and agree to the following: 

• Exclusive Off-Road Use: The Products are intended solely for legal purposes, namely off-road environments and competitive motorsports away from public roadways and any other location where the use of the Products is illegal or prohibited. 

• Assumption of Risk:  Buyer assumes full responsibility for the proper installation, use, and operation of the Products in compliance with all applicable laws. 

• Release of Liability: SKM shall not be liable for any damages, penalties, or legal consequences arising from the misuse or illegal use of its products. THIS INCLUDES, BUT IS NOT NECESSARILY LIMITED TO, SPECIAL, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE LOSS OF LIFE OR LIMB, OR DAMAGES DUE TO BODILY OR PERSONAL INJURY, WHICH MAY ARISE OR RESULT FROM THE SALE, INSTALLATION, OR USE OF ANY OF ITS PRODUCTS AND PARTS. THIS DISCLAIMER PURPORTS TO DISCLAIM ALL DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW. 

• Indemnification of SKM: Buyer agrees to indemnify, defend, and hold harmless SKM, its officers, employees, agents, and affiliates from and against any and all claims, damages, liabilities, costs, and expenses (including all attorneys’ fees) (all, “Claims”) arising out of or alleged to arise out of: 

• Buyers use or misuse of Products; 

• Any modification or installation of the Products; or 

General Warnings:  

• BUYER’S/USER’S RESPONSIBILITIES: It is Buyer’s responsibility to inspect and verify the dimensions, specifications, and performance of all Products as being appropriate for the use to which Buyer will use them prior to any installation and/or use of said Products. All Products must be inspected by Buyer before each use for evidence of damage, defect or wear. Any deviation by Buyer from the manufacturer's specifications concerning use, maintenance, repair, alterations or modifications is willful negligence. 

• VEHICLE MODIFICATIONS: Vehicle modifications can affect safety, handling, stability and emissions compliance.  Suspension modifications can affect stability and increase the chance of rollover. The installation of Products or parts may affect other vehicle components, safety equipment or manufactured goods (collectively "Goods"). SKM assumes no responsibility for any damage to other goods, or bodily injury that may arise due to failure of Goods, due to installation and/or use, either proper or improper, of Products. SKM is not liable for the voiding of any third-party warranty, manufacturer’s or otherwise, that results from the use or misuse of Products.  

• For clarity on applicable legal requirements, consult with a qualified attorney or your local regulatory authority before purchasing or using our Products. SKM is committed to promoting safe, responsible, and lawful vehicle modification practices 

• LIMITATION OF LIABILITY.  

• IN NO EVENT SHALL SKM OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SKM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. 

• SKM'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SKM PURSUANT TO THIS AGREEMENT FOR SUCH ORDER. 

• Compliance with Law. Buyer shall at all times comply with all laws applicable to the use of any services purchased from Seller, as well as applicable to the operation of its business, this Agreement, Buyer's performance of its obligations hereunder, and Buyer's use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law. 

• Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller. 

• Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. 

• Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) any other events beyond the control of Seller.  

• Assignment. Buyer's rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Seller may assign, transfer, or delegate this Agreement.  

• Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 

• No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.  

• Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of Indiana without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts located in Marion County (Indianapolis), Indiana. If any Party initiates a formal dispute in the Marion County Commercial Court and such dispute is accepted on such commercial court’s docket, the Parties agree to such jurisdiction. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of all courts identified in this Section 18.  

• Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested). 

• Severability. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.