STANDARD TERMS AND CONDITIONS OF SERVICE,
WAIVER AND RELEASE,
AND EXPRESS ASSUMPTION OF RISK AGREEMENT
APPLICABLE TO RACE CARS PURCHASED OR LEASED FROM
GMS FABRICATION, LLC
1. GMS Fabrication, LLC (“GMS”) is in the business of building and selling high performance racing chassis and/or vehicles for use in non-highway motorsports applications. Purchaser desires to purchase from GMS one or more racing vehicles and/or parts (referred to collectively herein as “Racing Assets”) now and, perhaps, in the future. This Waiver shall apply to all of Purchaser’s Racing Assets purchases from GMS now and in the future. In that motorsports is an ultra-hazardous activity where expected and unexpected events can result in death or serious injury to participants, spectators and officials, Purchaser agrees to accept ownership, lease or control of Racing Assets subject to the express terms and conditions set forth herein. GMS and Purchaser agree that the terms and conditions contained herein shall be applicable to all Racing Assets acquired by Purchaser from GMS now or in the future. GMS, for itself and its successors and assigns, covenants and agrees with Purchaser to warrant and defend title to the Racing Assets sold to the Purchaser, its executors, administrators, successors, and assigns, as the case may be, against all and every person and persons whomsoever. GMS also, for itself and its successors and assigns, warrants and represents to Purchaser that the title conveyed is good, its transfer is rightful, and the Racing Assets are, have been, or shall be delivered free from any security interest, other lien, or encumbrance.
2. Non-Refundable Deposit; Payment Schedule. For each purchase order, Purchaser shall pay to GMS a non-refundable deposit worth 50% of the total agreed upon price (the “Deposit”). GMS will not begin work until the Deposit is received. Upon notification that GMS has completed its work, Purchaser shall pay in full to GMS any outstanding balance owed within seven (7) days from the date of notification.
3. Late Fee and Storage Penalty. Upon notification that GMS has completed its work and Racing Assets are available for pickup, Purchaser shall have seven (7) days (the “Payment and Possession Deadline”) to pay GMS in full and to take physical possession of Racing Assets. GMS will not release Racing Assets to Purchaser until it receives full payment. If Purchaser fails to make full payment within the Payment and Possession Deadline, there shall be a late payment penalty worth 2% of the total purchase price (the “Late Fee”). The Late Fee will accrue daily including the day actual full payment is made. If Purchaser fails to take physical possession of Racing Assets prior to the expiration of the Payment and Possession Deadline, Purchaser agrees to pay to GMS a $200 storage penalty for each day after the Payment and Possession Deadline that GMS must store Racing Assets for Purchaser, including the day Purchaser takes physical possession of Racing Assets (the “Storage Penalty”). If Purchaser makes timely payment in full but fails to take physical possession of Racing Assets prior to the expiration of Payment and Possession Deadline, Purchaser shall still be responsible for the Storage Penalty and GMS will not release Racing Assets to Purchaser until the Storage Penalty is paid. If Purchaser does not take physical possession of Racing Assets within twenty-one (21) days after being notified that Racing Assets are available for pickup, Purchaser forfeits any and all rights to Racing Assets and shall pay liquidated damages to GMS in an amount equal to any balance then owed, including Late Fees and Storage Penalty. Purchaser understands and acknowledges that GMS’s damages due to Purchaser’s non-payment or failure to take physical possession of Racing Assets would be difficult, if not impossible, to determine, and the parties agree that liquidated damages in the amount described herein are appropriate.
4. Disclaimer of Warranty; Inspection. THE RACING ASSETS ARE CONSTRUCTED TO THE BEST OF THE ABILITY OF GMS, USING CURRENT MANUFACTURING AND ASSEMBLY EFFORTS WITH THE INTENTION THAT THE RACING ASSETS BE COMPLIANT FOR USE IN THE RACING SERIES FOR WHICH SAID RACING ASSETS ARE INTENDED. THAT SAID, THE RACING ASSETS ARE SOLD “AS-IS” AND “WHERE IS” WITHOUT ANY REPRSENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PHYSICAL CONDITION OF THE RACING ASSETS, THE FITNESS OF ANY ITEM OF THE RACING ASSETS FOR THE USE INTENDED, OR THE MERCHANTABILITY OF ANY ITEM OF THE RACING ASSETS. BY ACCEPTING THESE TERMS AND CONDITIONS, PURCHASER REPRESENTS THAT PURCHASER AND/OR ITS AGENT HAS PERSONALLY INSPECTED THE RACING ASSETS AND ACCEPTS THE RACING ASSETS IN THEIR “AS-IS” AND “WHERE IS” CONDITION. PURCHASER ACKNOWLEDGES THAT THE RACING ASSETS ARE FOR USE ONLY IN COMPETITIVE MOTORSPORTS AND ARE NOT FOR STREET OR HIGHWAY OPERATION.
5. Waiver and Release of Liability. Purchaser, on behalf of himself, his agents, representatives, successors and assigns hereby waiver and releases GMS and its owners, officers, directors, employees, contractors, affiliated entities, agents and assigns (the “Releasees”) FROM ALL LIABILITY OF WHATEVER KIND OR NATURE, IN LAW, EQUITY OR OTHERWISE, WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FOR ANY AND ALL PRESENT OR FUTURE LOSS OR DAMAGE, AND ANY CLAIMS, LIENS, DEMANDS, CAUSES OF ACTION, debts, liabilities, expenses including court costs and attorney’s fees, SUITS OR JUDGMENTS THEREFROM (collectively, “Liability”) related to ownership of and use of the Racing Assets, including claims arising from injuries, death, or property damage: (a) suffered by any person in the course of driving, operating, preparing, testing, repairing, modifying, servicing, fueling, examining, and/or observing the Racing Assets; (b) resulting from the potential negligence of GMS, including with regard to the assembly, modification, or delivery of the Racing Assets; or (c) resulting from GMS’s failure to provide any warnings or notices with regard to the Racing Assets.
6. Express Assumption of Risk. Purchaser acknowledges and accepts that the Racing Assets may include a high-performance vehicles and parts capable of engaging in high speeds and participating in competitions. There are risks and dangers associated with the operation and/or racing of high-speed and high-performance vehicles, including a significant possibility of SERIOUS PHYSICAL INJURY OR DEATH. Purchaser expressly assumes the risk of all INJURY, DISABILITY, PARALYSIS, DEATH, AND PROPERTY DAMAGE resulting from the use of the Racing Assets. The Racing Assets should only be driven or used: (a) by a driver with the requisite training, skill, and experience necessary for the operation of high-speed and high-performance vehicle; (b) on specifically designed courses and/or under the supervision of qualified persons in proper conditions; (c) after inspection by a qualified mechanic, including in between uses as needed; and (d) with proper maintenance and repair to parts subject to wear and tear, fatigue, or disintegration or damage due to collision or improper use. Furthermore, to the extent that Purchaser disassembles, reassembles, modifies, adjusts, and/or makes changes to the Racing Assets, it does so expressly assuming all risk and dangers associated therewith. Purchaser understands, agrees to, recognizes and acknowledges the above limitations and restricted uses of the Racing Assets.
7. No Reliance. Purchaser acknowledges and agrees that no oral statements, representations, or promises have been made to the Purchaser other than those expressly set forth in this Agreement. This Agreement contains the entire understanding between the parties relating to the Racing Assets.
8. Insurance Disclaimer. Purchaser acknowledges and agrees that GMS does not provide, obtain, or maintain any insurance coverage for the Racing Assets or their operation, use, transport, storage, or maintenance. Purchaser is solely responsible for obtaining and maintaining adequate insurance coverage, including without limitation property damage, liability, and personal injury insurance, in connection with Purchaser’s ownership, control, or us of the Racing Assets.
9. Purchaser hereby agrees to consult and become familiar with any and all instructional and informational materials provided with the Racing Assets regarding adjustment of the Racing Assets, and the resulting potential impact on performance and handling. Purchaser has had the opportunity to ask questions and request additional information about the Racing Assets and the adjustment capabilities of the Racing Assets, and the Purchaser hereby acknowledges that Purchaser’s questions and requests have been answered to Purchaser’s satisfaction.
10. Indemnification. Purchaser hereby agrees to DEFEND, INDEMNIFY, AND HOLD GMS HARMELESS from and against from any LIABILITY, including from court costs and attorney’s fees, arising out of Purchaser’s ownership, control and/or use of the Racing Assets, and any LIABILITY arising out of breach of this agreement. The Purchaser assumes all liability to minors and third parties should Purchaser place the Racing Assets into the hands of a minor. Purchaser shall indemnify GMS and hold GMS harmless from any and all claims, rights and causes of action (and attorney fees, costs and expenses) arising from the use of the Racing Assets whether by adults or minors, from other third parties and from other entities and individuals or entities regardless of whether or not they are affiliated with Purchaser.
11. Purchaser further agrees to inform any subsequent purchasers of the Racing Assets about this agreement, and all of the terms and provisions therein. Purchaser shall include this agreement with any and all other documentation associated with the subject vehicle and will present al subsequent purchasers with the documentation to review. Purchaser shall be responsible to provide all subsequent purchasers with sufficient warnings regarding the Racing Assets, its uses, maintenance, and the impact of any adjustments and/or modifications.
12. Purchaser agrees and understands that this agreement shall be deemed entered into in Iredell County, North Carolina, and that it and the use of the Racing Assets shall be governed by and interpreted under the laws of North Carolina. This agreement is intended to operate and be construed as broadly as allowed under North Carolina law with North Carolina law applying to the use of the Racing Assets no matter where or when the Racing Assets are utilized. Purchaser agrees and understands that this agreement is intended to be fully severable and that if any portion of this agreement is found to be void or invalid, the remainder of the agreement shall be enforced to the fullest extent of the law. The courts of Iredell County, North Carolina shall have exclusive jurisdiction over any matters arising from this agreement or the use by Purchaser of the Racing Assets.
13. Purchaser represents and warrants that Purchaser is at least eighteen (18) years of age and Purchaser has the full, complete and unrestricted right, power and authority to enter into this agreement. Purchaser was offered a copy of this agreement.