Terms of service

WEBSITE TERMS OF USE

PWR Performance Products Pty Ltd (AU), C&R Racing Inc (US), and PWR Europe Ltd (UK) (together and separately, PWR) operate websites at www.pwr.com.au, www.pwrna.com, and www.pwreurope.com (together and separately, PWR Websites), respectively, through which they promote, offer for sale, provide, and sell goods and services (Deliverables).

This document (Website Terms of Use) sets out the terms on which you may access and use the PWR Websites.  If you do not agree to these Terms of Use, you are prohibited from accessing or using the PWR Websites.

By accessing the PWR Websites, you are agreeing to be bound by these Terms of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws.

1.    INTELLECTUAL PROPERTY RIGHTS
All copyrights, trade marks and other intellectual property rights in and to the PWR Websites, and all content and software located thereon, shall remain the sole property of PWR or its respective licensors. The use of PWR’s trade marks, content and intellectual property is forbidden without the express written consent of PWR.

You must not:
•    republish material from the PWR Websites;
•    sell or rent material from the PWR Websites;
•    reproduce, duplicate, create derivatives of, copy or otherwise exploit the material on the PWR Websites; or
•    redistribute any content from the PWR Websites, including onto another website,
without PWR’s prior written consent.

2.    ACCEPTABLE USE
You agree to use the PWR Websites only for lawful purposes and in a way that does not infringe the rights of, restrict, or inhibit anyone else’s use and enjoyment thereof. Prohibited behaviour includes harassing, intimidating or causing distress or inconvenience to any other user, transmitting obscene or offensive content or disrupting the normal flow of dialogue within and on the PWR Websites.

You must not use the PWR Website to send unsolicited commercial communications.

You must not use the content on the PWR Websites for any marketing-related purpose without PWR’s express written consent.

3.    USER-GENERATED CONTENT
Where the PWR Websites allow you to submit, post, upload, or otherwise make available content, including but not limited to comments, reviews, suggestions, and other materials (UG Content), you retain ownership of your intellectual property rights therein.

By submitting UG Content to the PWR Websites, you grant PWR a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such UG Content throughout the world in any media.   

You represent and warrant that you have all necessary rights to grant the licence described in this section and that your UG Content does not infringe the rights of any third party and is not defamatory, unlawful, offensive, or otherwise objectionable.   

PWR has the right, but not the obligation, to monitor, edit, or remove any UG Content that it deems in its sole discretion to be in violation of these Terms of Use or is otherwise objectionable.

You are solely responsible for your UG Content and the consequences of posting or publishing it.

4.    LINKS TO THIRD PARTY WEBSITES
The PWR Websites may contain links to third-party websites that are not owned or controlled by PWR.  These links are provided for your convenience only, and PWR has no control over the content, privacy policies, or practices of any third-party website.  

PWR does not endorse or make any representations about such websites, and is not responsible for any loss or damage that may arise from your use of them.  You should review the terms of use and privacy policies of any third-party websites that you visit.

5.    RESTRICTED ACCESS
PWR may in the future need to restrict access to parts (or all) of the PWR Websites and reserves its rights to do so.  

If, at any point, PWR provides you with a username and password for you to access restricted areas of the PWR Websites, you must ensure that both your username and password are kept confidential.

6.    REVISIONS
PWR may change these Terms of Use from time to time, so you should check them regularly.  Your continued use of the PWR Websites will be deemed acceptance of the updated or amended Terms of Use.  If you do not agree to the changes, you should cease using the PWR Websites immediately.

If any of these terms is determined to be illegal, invalid or otherwise unenforceable, it shall be severed from the Terms of Use and the remaining terms will survive and continue to be binding and enforceable.

7.    LIMITATION OF LIABILITY
The materials, advice and services offered and provided on the PWR Websites are provided “as is” without any express or implied warranty of any kind, including warranties of merchantability, non-infringement of intellectual property, accuracy or fitness for any particular purpose.

In no event shall PWR, its agents or officers be liable for any damages whatsoever (including, without limitation, damages for loss of profits, business interruption, loss of information, injury or death) arising out of the use of, or inability to use, the materials on the PWR Websites, even if PWR has been advised of the possibility of such loss or damages.

8.    INDEMNIFICATION
You agree to indemnify, defend, and hold PWR harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to:   
•    your breach of these Terms of Use;
•    your violation of any third-party right, including without limitation any intellectual property right or privacy right; and
•    any claim that your UG Content caused damage to a third party.

STANDARD TERMS & CONDITIONS OF SALE

RECITALS

The Buyer (as identified in the related quote or Purchase Order) is interested in purchasing from PWR those goods and/or services as more fully described in the

Buyer’s Purchase Order or PWR’s quote, as applicable (the “Products and/or Services”). These Terms and Conditions shall be deemed incorporated into Buyer’s Purchase Order for the Products whether or not specifically referenced therein.

PWR reserve the right to amend these terms and conditions without notice.

PWR offer no guarantee of website compatibility & no liability for corruption, loss or damage of data.

1.           OFFER & ACCEPTANCE, AGREEMENT

Buyer’s acceptance of PWR’s quote and/or PWR’s

acceptance of Buyer’s written Purchase Order is limited to acceptance of the express terms and conditions contained herein. Once accepted, PWR’s quote or

Sales Order Confirmation, as the case may be, together with these Terms and Conditions, and any supplementary written information incorporated by reference herein, shall be the complete and exclusive statement of the parties’ agreement and supersedes any prior discussions, negotiations, agreements, and understandings. Any modifications proposed by Buyer are not part of the parties’ agreement in the absence of PWR’s written acceptance thereof. Any terms or provisions in the Purchase Order or Sales Order Confirmation which are in any way inconsistent with those herein shall be null and void and the Terms and Conditions herein shall control. The placing of a Purchase Order or the shipping of goods to PWR to be processed shall constitute acceptance of the Terms and Conditions contained herein.

2.           PURCHASE PRICE AND PAYMENT TERMS

The price quoted by PWR for the Products and/or Services will be clearly identified by nominated currency for the quantity shown, less any taxes, freight, duty, and custom’s charges. The purchase price for the Products and/or Services shall be paid in advance by pro-forma invoice unless otherwise agreed in writing. If, in PWR’s judgment, the financial condition of the Buyer at the time processed goods are ready for shipment does not justify any terms specified, PWR reserves the right to change these terms or to require full payment or partial payment in advance. All sales are subject to the approval of PWR’s finance department.

PWR reserve the right to correct pricing errors and cancel orders where there are errors.

Payment, for goods on this order prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that, Buyer may have against Seller.

Payment of all or any part of the purchase price shall not be construed as a waiver of any claims of the buyer for defects or delay in delivery or other breach of the contract.

3.           STANDARDS

Many countries have adopted laws relative to standardisation and product certification applicable to various products, including equipment such as that produced by PWR. PWR warrants that its products are compliant with standards required under UK Law, but it cannot and does not warrant conformity with the standardisation and product certification requirements of any other country except to the extent, if any, set forth in a separate writing delivered to Buyer by PWR.

4.           STANDARDS OF MANUFACTURE

PWR represents and warrants that the goods covered by this order have been manufactured in accordance with the requirements of ISO90001.

5.           PRODUCTS

In the case of prototype products, PWR does not deem it necessary to adhere to the below processes unless otherwise directed by the customer (Buyer):

•             FAI 9102 will not be supplied.

•             PWR may choose to open its supplier list for raw material, hardware, or services to PWR Internally approved, customer approved or internally approved suppliers.

In the case of standard products, PWR does not deem it necessary to supply full material and manufacturing process traceability of parts unless agreed upon in advance.

6.           INSPECTION AND REJECTION

Final inspection of the Products and/or Services purchased pursuant to the terms hereof shall be at Buyer’s premises unless otherwise agreed in writing.

The Products and/or Services (or parts) rejected as not conforming to the Purchase Order, or as otherwise

defective, shall be returned at Buyer’s initial expense, including transportation and handling costs, but subject to reimbursement by PWR upon confirmation of the defect claimed. Acceptance by Buyer of shipment of the Products and/or Services rendered by PWR shall be deemed to have occurred no later than ten (10) days following receipt of such shipment by Buyer or Buyer’s customer unless a timely rejection has been made by that date.

7.           SHIPMENT AND DELIVERY

Except as provided in Paragraph 6, above, as it relates to returned processed goods, shipment of the processed goods shall be Ex-Works PWR’s place of business. Buyer shall be responsible for all transportation and delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates, if specified by PWR, are estimates only and are not guaranteed and are not binding on PWR.

8.           CONFIDENTIALITY AND NON-DISCLOSURE

Buyer recognises that PWR is the owner of certain confidential and proprietary information relating to the development and application of the Products and/or Services, which includes specifications, technological know-how and other types of information or data, including certain patents related thereto (the “Technical Information”). Buyer agrees not to, directly or indirectly, disclose, disseminate, or otherwise publish to any third-party any of the Technical Information. Buyer further agrees to protect from disclosure PWR’s Technical Information to the same extent which Buyer seeks to protect its own Technical Information from disclosure (but in no event will Buyer exercise less than reasonable measures).

The confidentiality obligations herein shall not apply to any Technical Information which (a) at the time of disclosure is in the public domain, (b) after disclosure becomes part of the public domain other than through a breach of a non-disclosure obligation, or (c) was received from a third-party who acquired such information through lawful means and without any breach of a non-disclosure obligation. Tooling and gauges, if any, for which Buyer is invoiced shall remain property of PWR unless otherwise indicated and shall be maintained by PWR only as long as reasonable usage warrants, as determined by PWR in its sole discretion.

9.           TAXES

Buyer shall be responsible for all taxes, duties, assessments, and other governmental charges related to the sale, shipment and/or importation as required of the Products and/or Services; provided, however, the selling PWR group entity shall be responsible for income taxes related to amounts received by the selling PWR group entity in connection with its sale of the Products and/or Services to Buyer in the region of the sale.

10.        TERMINATION

The Purchase Order and these Terms and Conditions may be terminated in any of the following ways:

A.           By mutual agreement of PWR and Buyer.

B.           By PWR, on thirty (30) days prior written notice, in the event that:

(i)           Buyer breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that period.

(ii)          PWR reasonably believes that Buyer’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations.

(iii)         Buyer defaults under any other material contract to which it is a party; or

(iv)         Buyer sells all or substantially all its assets, a majority of its voting stock or merges with another entity.

C.           By Buyer, upon thirty (30) days prior written notice, in the event that:

(i)           PWR breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that period.

(ii)          Buyer reasonably believes that PWR’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations.

(iii)         PWR defaults under any other material contract to which it is a party; or

(iv)         PWR sells all or substantially all its assets, most of its voting stock or merges with another entity, unless PWR is the surviving corporation in any such merger.

11.        CURRENCY

All payments shall be in GBP unless otherwise agreed in writing. Payments not made within the period

required herein shall bear interest at the rate of 8% plus the Bank of England base rate. If PWR finds it necessary to take action to collect any unpaid amounts, Buyer shall be responsible for all costs and attorney fees incurred by PWR in connection therewith.

12.        LIMITATION OF DAMAGES

PWR shall not be liable for any special, incidental or consequential damages, losses or expenses directly or indirectly arising from the sale, inspection, handling or use of the goods or from the Products AND/OR SERVICES provided by PWR or from any other cause relating thereto, and PWR’s liability hereunder, in any case, is expressly limited to providing replacement Products AND/OR SERVICES for those Products AND/OR SERVICES not complying with the

terms hereof or, at PWR’s election, to the repayment or crediting of Buyer with an amount equal to the purchase price paid by Buyer for the non-complying Products AND/OR SERVICES.

If Buyer brings any action at law or equity in connection with the Purchase Order or these Terms and Conditions, no cause of action by Buyer shall include a claim, nor may recovery had against PWR, for any punitive, incidental, special or consequential damages of any kind, including but not limited to, damages to property OR PERSONS (INCLUDING DEATH), for loss of use, loss of time, loss of profits or income, or otherwise. PWR’s liability shall be specifically limited as provided herein.

13.        FORCE MAJEURE

Except for payment obligations of Buyer hereunder, neither party shall be liable under the purchase agreement for delays in performance or failure to perform its obligations caused by circumstances beyond its control, including but not limited to, acts of God, wars, riots, strikes, floods, labour disputes, accidents, and governmental restrictions.

14.        MISCELLANEOUS

The following miscellaneous terms and Conditions shall apply:

A.           These Terms and Conditions may be executed in counterparts (including counterpart facsimiles) and each counterpart shall be deemed to be an original instrument, but all counterparts shall together constitute one agreement.

B.           In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal, or unenforceable in any respect, that disability shall not affect any other provision herein and these Terms and Conditions shall be construed as if that provision had never been contained herein.

C.           Captions to paragraphs of in these Terms and Conditions have been included solely for the sake of convenient reference and are entirely without substantive effect.

D.           These Terms and Conditions shall be binding upon, and its benefits shall inure to, the parties hereto and their respective heirs, representatives, successors, and assigns.

E.           The Purchase Order, Sales Order Confirmation and these Terms and Conditions shall be governed in accordance with English laws.

F.            The Purchase Order and these Terms and Conditions embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Neither these Terms and Conditions nor any of its provisions may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.

15.        ASSIGNMENT

Buyer may not assign its rights under the Purchase Order or these Terms and Conditions without the prior written consent of PWR. Any assignment made without PWR’s written consent shall be null and void.

16.        NO MODIFICATION

The contract contains the entire agreement of the parties, it may not be modified or terminated orally, and no claimed modification, termination or waiver shall be binding on Buyer unless in writing signed by a duly authorised representative of Buyer. No modification or waiver shall be deemed effected by Seller’s acknowledgment or confirmation containing other or different terms.

17.        Warranty Policy