General Terms and Conditions of Sale

1. General (a) Whenever used in this Sales Agreement ("Agreement") "ROUSH" shall mean Roush Fenway Racing, LLC. "BUYER" shall mean the party listed under "Sold To" on this Agreement (and/or any party that receives or uses the Product(s) described in this Agreement, whether or not listed on this Agreement) and shall include the BUYER's agents, servants, representatives and employees. "Product(s)” shall mean and include, without limitation, any new or used automobile components or parts, new or used racing parts, prototype parts and any manuals, schematics, instructions, bulletins, communications or designs related thereto; and any other items listed or referred to on this Agreement.
(b) The sale of any Product(s) covered by this Agreement is made solely upon these terms and conditions of sale and no others including, without limitation, any terms and conditions contained in any offer or purchase order of BUYER. Any additional or different terms or conditions proposed by BUYER are objected to by ROUSH and rejected without need of further notice of objection and shall be of no effect nor binding upon ROUSH unless specifically agreed to in writing by ROUSH’s authorized representative. BUYER shall be deemed to have agreed to all these terms and conditions if BUYER has signed this Agreement or if any part of the described Product(s) is accepted, installed or used in any way by BUYER, regardless of whether BUYER has signed this Agreement.

2. No Warranty BUYER acknowledges and agrees that all sales of Product(s) under this Agreement are made "AS IS", “WHERE IS” WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES OR GUARANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXCLUDED. ROUSH MAKES NO EXPRESS OR IMPLIED WARRANTIES THAT ANY PRODUCT(S) WILL NOT INFRINGE THE CLAIMS OF ANY DOMESTIC OR FOREIGN PATENTS OR COPYRIGHTS, AND ROUSH DOES NOT WARRANT AGAINST PATENT OR COPYRIGHT INFRINGEMENT ARISING FROM THE USE OF THE PRODUCT(S).

3. Release; Indemnification and Limitation of Liabilities BUYER ACKNOWLEDGES AND AGREES THAT THE USE OF THE PRODUCT(S) AS WELL AS RACECAR MANUFACTURING, PREPARATION AND TESTING, AND MOTOR VEHICLE RACING IN GENERAL ARE INHERENTLY DANGEROUS ACTIVITIES THAT OFTEN CAUSE SERIOUS BODILY INJURY OR DEATH TO THOSE WHO USE SUCH PRODUCT(S) OR PARTICIPATE IN RACE-RELATED ACTIVITIES. BUYER UNDERSTANDS THAT THE PRODUCT(S) MAY HAVE BEEN USED FOR TESTING. Consequently, BUYER releases ROUSH and agrees that Roush shall not be liable for any and all claims arising from or relating to the Product(s), and BUYER assumes all risks associated with the Product(s) (including without limitation physical injury and death) and agrees to indemnify, defend and hold harmless ROUSH and each of its shareholders, directors, officers, employees and agents, on demand, from and against any and all claims, demands, actions, causes of actions, suits, costs, fees, penalties, damages (special, consequential, incidental and otherwise), attorneys’ fees and all other liabilities and obligations whatsoever ("Losses") arising out of or relating to:
(a) the use of any Product(s) purchased from ROUSH;
(b) personal injuries, sickness or death of any natural person or damage to any property (including, but specifically not limited to, injuries, sickness, death or damages of or to the BUYER and/or any person or entity which purchases, leases, or borrows the Product(s) from the BUYER and/or who uses the Product(s) with BUYER’s knowledge or permission, and/or each of their agents, servants, employees and/or property);
(c) any alleged manufacturing, design or other defect, failure to warn, improper handling, improper operating or installation instructions or any other matter, whether involving an alleged act or omission of BUYER, ROUSH and/or any person or entity purchasing the Product(s) from BUYER or using the Product(s) with BUYER’S knowledge or permission;
(d) the performance by BUYER of its obligations under this Agreement, including without limitation section 6;
(e) BUYER’s loss of profit(s) or revenue(s), damage or loss of use of the Product(s) or any associated equipment, cost of capital, cost of substitute product(s) including without limitation facilities, services or replacement power, down time costs, or claims of BUYER’s customers for such damages;
(f) any breach of any representation or covenant contained in this Agreement between ROUSH and BUYER; and
(g) any claim, loss or damage relating to any advice or other assistance concerning the Product(s) furnished by ROUSH.

To the maximum extent permitted by applicable law, BUYER'S release, indemnification, and limitation of liabilities shall be applicable even as to losses caused in whole or in part by an indemnitee's negligence, but shall not apply to the extent that Losses are clearly shown to have resulted solely and directly from the gross negligence or willful misconduct of such indemnitee.

In furtherance and not limitation of the foregoing, BUYER agrees that it shall pay interest to ROUSH, on demand, on all indemnification amounts owed, at the prime rate plus two percent (2%), and ROUSH may at its option participate in the defense of any third party claim with its own counsel at BUYER'S expense, and ROUSH shall be entitled to recover from BUYER all of ROUSH’s reasonable attorneys fees and costs incurred in defense of any action released or otherwise covered by the indemnification provisions of this Agreement, or that ROUSH incurs to reasonably enforce this Agreement.

If BUYER transfers title to or leases the Product(s) or otherwise grants permission for any third party to use the Product(s), BUYER shall include in any agreement with such third party a provision expressly for ROUSH's benefit as a third party beneficiary, affording ROUSH the protection of the preceding sentence against such third party.

BUYER UNDERSTANDS AND AGREES THAT SINCE THE PRODUCT(S) IS SOLD “AS IS” AND “WHERE IS” BUYER'S SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS, DAMAGE(S), OR INJURY(IES) (INCLUDING DEATH) ARISING FROM OR RELATING TO THE PRODUCT(S) SHALL BE THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCT(S).

4. Return Policy All sales of Product(s) are final and no refunds will be provided. Any Product(s), however, may be returned for replacement (if available) within 30 days of the original purchase date provided that BUYER has not installed, used, raced, altered or damaged the Product(s). BUYER shall notify ROUSH in writing before BUYER returns any Product(s) for potential replacement and identifies the reasons for the replacement and receives ROUSH’s WRITTEN return authorization. BUYER shall be responsible for any and all freight charges incurred to return the Product(s) to ROUSH including a 20% handling charge on each returned Product(s). ROUSH reserves the right to refuse to replace a Product(s) if ROUSH determines, in its sole and absolute discretion, that the Product(s) has been previously installed, used, raced, altered, or damaged.

5. Taxes BUYER agrees to pay all applicable local, state or federal sales or use taxes, charges, or fees arising by reason of this sale, whether required to be paid or collected by BUYER or ROUSH.

6. Force Majeure ROUSH shall not be liable for delays in delivery or performance due to causes beyond its reasonable control including, without limitation, Acts of God, acts of BUYER, terrorist attacks, acts of civil or military authority, governmental priorities, fires, strikes or other labor disturbances, flood, earthquakes, epidemics, quarantine restrictions, war, riot, delays in transportation, parts availability or any other commercial impracticability. In the event of any such delay, the date of delivery or of performance by ROUSH shall be extended for a period equal to the time lost by reason of the delay.

7. Payment BUYER shall pay for Product(s) at the time of order. Payment shall only be in the form of cash, certified cashier's check or credit card.

8. Transportation. Title. Risk of Loss Except to the extent specifically stated on the face of this Agreement, (a) the Product(s) is being sold "Where is", and BUYER shall pay all transportation charges for the Product(s) from its current location, and (b) risk of loss of and title to the Product(s) shall pass to BUYER upon shipment from ROUSH's facility of the Product(s).

9. Miscellaneous (a) This instrument constitutes the entire and only agreement between the parties regarding the sale of Product(s), and any representation, affirmation of fact, course of prior dealings, promise, or condition in connection therewith, or usage of the trade not incorporated in, or inconsistent with, this Agreement shall not be binding on either party. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding upon ROUSH unless in writing and signed on its behalf by an authorized employee of ROUSH.
(b) ROUSH's rights under this Agreement are cumulative and concurrent, and in addition to all rights and remedies available to it at law or in equity.
(c) The invalidity, in whole or part, of any provision of this Agreement shall not affect the remainder of such provision or any other provision in this Agreement.
(d) The validity, performance, and all matters relating to the interpretation and effect of this Agreement and any amendment hereto shall be governed by the law of the State of North Carolina, excluding its conflict of laws provisions. Moreover, the parties expressly agree that the U.N. Convention for the International Sale of Goods shall not apply to any sale of Product(s) to BUYER under this Agreement.

BUYER ACKNOWLEDGES AND AGREES THAT THE GENERAL TERMS AND CONDITIONS OF SALE SET FORTH HEREIN SHALL GOVERN THE SALE OF ALL PRODUCTS ORDERED BY BUYER FROM ROUSH, AND BUYER AGREES TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS OF SALE FOR THE PRODUCT(S) ORDERED.