THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY BEFORE USING THE PRODUCTS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. BY PLACING AN ORDER FOR PRODUCTS FROM ANY OF THE WEBSITES WHICH SELL THE PRODUCTS, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM ANY WEBSITE WHICH SELLS THE PRODUCTS IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) THE LEGAL AGE TO FORM A BINDING CONTRACT, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE WEBSITE OR ANY OF THE WEBSITE’S CONTENTS, PRODUCTS, OR SERVICES BY APPLICABLE LAW.
(a) These terms and conditions (these “Terms”) govern the purchase and use of any HOME RACER LLC D/B/A OPENWHEELER OFFICIAL, OPENWHEELER USA, or TEAM HOMERACER (the “Manufacturer”) products (the “Products”). These Terms only govern those Products sold to you (the “Buyer”) by either (i) the Manufacturer through Amazon.com, ebay.com, newegg.com, or Walmart.com (each, a “Website,” and collectively, the “Websites”) or (ii) an Authorized Reseller. These Terms are subject to change by Manufacturer without prior written notice at any time, in Manufacturer’s sole discretion. The latest version of these Terms will be posted on the Manufacturer’s website at homeracer.com, and you should review these Terms prior to purchasing any Products that are available through the Website. Your purchase of the Products after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
(i) “Authorized Reseller” is defined as any reseller who is appointed by the Manufacturer and is authorized to resell the Products directly to the consumer. For purposes of these Terms, Amazon.com, Inc. may serve as both a Website and an Authorized Reseller.
(b) Each order and sale is further governed by the terms and policies of the respective Website from which you purchased the Products.
2. Orders to Manufacturer via Websites.
This Section applies to orders placed to the Manufacturer through the Websites and not any orders to or purchases from an Authorized Reseller. Such purchases will be governed by the applicable Authorized Reseller’s policies.
(a) Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms and subject to the terms and policies of the respective Website from which you purchased the Products. All orders must be accepted by the Manufacturer or the Manufacturer will not be obligated to sell the products to you, subject to the terms and policies of the respective Website from which you purchased the Products. The Manufacturer may choose not to accept any orders in the Manufacturer’s sole discretion. After having received your order, the Manufacturer will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract between the Manufacturer and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by e-mailing [email protected].
(b) Prices and Payment Terms.
(i) All prices posted on the Websites are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. The Manufacturer is not responsible for pricing, typographical, or other errors in any offer by the Manufacturer or any Authorized Reseller and the Manufacturer reserves the right to cancel any orders arising from such errors.
(ii) Terms of payment are within the Manufacturer’s sole discretion and payment must be received by the Manufacturer before acceptance of an order. The Manufacturer accepts payment via the Websites. You represent and warrant that (i) the payment information you supply to the Manufacturer is true, correct, and complete, (ii) you are duly authorized to use such payment method for the purchase, (iii) charges incurred by you will be honored by your credit card company and/or your bank, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
(c) Shipments & Delivery by Manufacturer; Title and Risk of Loss.
(i) If you purchased from the Manufacturer through the Websites, the Manufacturer will arrange for shipment of the products to you. Please check the individual product webpage for specific delivery options. Special expedited handling services are available, subject to additional fees. Shipping and delivery dates are estimates only and cannot be guaranteed. The Manufacturer is not liable for any delays in shipments. Unless stated otherwise, you will pay all shipping and handling charges specified during the ordering process.
(ii) Title and risk of loss pass to you upon delivery. A signature upon delivery will be require unless requested otherwise by the Buyer. The Buyer assumes responsibility for any charges incurred by having to “re-deliver” the Product if the Buyer, or an authorized signer, is unavailable to sign upon initial delivery attempt.
(iii) Orders will be credited for the full amount of the Product and any shipping fees incurred if cancellation is approved or results from one of the following instances:
1. The order was cancelled by the Buyer and the Buyer rejected the Products at the time of delivery.
2. The Products were shipped erroneously by Manufacturer.
3. For Products which require signature upon delivery and such requirement was not waived, the Products were lost in transit by the carrier.
(d) Returns and Refunds. Except for any Products designated on the Websites as non-returnable and except for remedies for any defective Products addressed in Section 6 of these Terms, the Manufacturer will accept a return of the Products for a refund of your purchase price based on the following conditions:
(i) To return products, you must e-mail the Manufacturer at [email protected] before shipping your product back to the Manufacturer and the Manufacturer will provide a return shipping label.
(ii) Provided such request is made and the return is mailed within thirty (30) days of the date of delivery and provided such products are returned in their original condition, the Manufacturer will accept the return and pay for the return shipping and handling costs.
(iii) Provided such request is made and the return is mailed after thirty (30) days but within sixty (60) days of the date of delivery and provided such products are returned in their original condition, the Manufacturer will accept the return and may, in its sole discretion, pay for the return shipping and handling costs.
(iv) Provided such request is made and the return is mailed beyond sixty (60) days from the date of delivery and provided such products are returned in their original condition, the Manufacturer will accept the return, but the Buyer will be responsible for the return shipping and handling costs. The Buyer will be informed of such costs upon requesting a return shipping label pursuant to this Section 5(a) and the shipping and handling costs will be deducted from the return refund amount payable to Buyer.
(v) Returns are subject to restocking fee of up to fifteen percent (15%) of the purchase price depending on the condition of the Products upon return to the Manufacturer.
(vi) Refunds are issued the same day the return is received by the Manufacturer. You will receive a notification upon issuing a refund. Refunds may take approximately two (2) business days of the Manufacturer’s receipt of your merchandise to process. Your refund will be credited back to the same payment method used to make the original purchase on the applicable Website.
3. MANUFACTURER’S LIMITED WARRANTY FOR DEFECTIVE PRODUCTS. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THE MANUFACTURER WARRANTS THAT DURING THE WARRANTY PERIOD, THE PRODUCTS PURCHASED FROM THE WEBSITES WILL BE FREE FROM DEFECTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MANUFACTURER LIMITS THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, TO THE WARRANTY PERIOD. THE MANUFACTURER’S RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT, OR REFUND AS SET FORTH IN THIS SECTION 3. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT, OR ADVICE PROVIDED BY THE MANUFACTURER, OR ANY AUTHORIZED RESELLER, SUPPLIER, AGENT, OR EMPLOYEE WILL CREATE A WARRANTY, WAIVE THE TERMS OF THIS LIMITED WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
(a) Who May Use This Warranty? This limited warranty extends only to the original purchaser of Products from the Websites. It does not extend to any subsequent or other owner or transferee of the Products.
(b) What Does This Warranty Cover? This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in the Products purchased from the Websites or an Authorized Reseller.
(c) What Does This Warranty Not Cover? This limited warranty does not cover any damages due to:
(iii) commercial use including, but not limited to, rental or hire;
(iv) improper use;
(v) failure to follow the product instructions;
(vi) modifications or changes of any kind to the product for any reason, whether or not properly carried out;
(vii) unauthorized repair;
(viii) maintenance or installation;
(ix) combination or use with any products, materials, processes, systems, or other matter not provided or authorized in writing by the Manufacturer;
(x) normal wear and tear; or
(xi) external causes such as accidents, abuse, or other actions or events beyond the Manufacturer’s reasonable control.
(d) What is the Period of Coverage? This limited warranty lasts for TWO YEARS (the “Warranty Period”). The Manufacturer may change the availability of this limited warranty at the Manufacturer’s discretion, but any changes will not be retroactive.
(e) What Are Your Remedies Under This Warranty? With respect to any defective products during the Warranty Period, the Manufacturer will, in its sole discretion, repair or replace such products (or the defective part) free of charge. The foregoing constitutes your sole remedy with respect to defective Products.
(f) How Do You Obtain Warranty Service? To obtain warranty service or process a return for a defective Product, you must e-mail the Manufacturer at [email protected] during the Warranty Period with pictures of the broken or defective part and original proof of purchase, bearing the date of purchase and the name of the retailer, reseller or supplier. These documents are invalid if damaged or altered. No warranty service will be provided without first following this procedure. The Manufacturer, in its sole discretion, may provide a return shipping label free of charge for you to return the defective Product.
(g) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
(h) What can you do in case of a dispute with us? The dispute resolution procedure detailed in Section 15 is available to you if you believe that the Manufacturer has not performed its obligations under this limited warranty or these Terms.
4. Intended Use. This Product is intended to be used only as a gaming chair for racing or flight simulation professional training or to play racing or flight simulation video games.
6. LIMITATION OF LIABILITY AND ASSUMPTION OF RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MANUFACTURER SHALL NOT BE LIABLE FOR ANY INJURY, DAMAGE, OR LOSS TO PERSONS OR PROPERTY ARISING OUT OF POSSESSION OR USE OF THE PRODUCT. THE MANUFACTURER SHALL NOT BE LIABLE FOR ANY INJURY, DAMAGE, OR LOSS TO PERSONS OR PROPERTY CAUSED BY THE IMPROPER USE OF THIS PRODUCT OR BY THE USE, WHETHER PROPER OR IMPROPER, OF ANY ADD-ONS OR OTHER DEVICES USED IN CONJUNCTION WITH THIS PRODUCT NOT MANUFACTURED BY THE MANUFACTURER. THE BUYER ASSUMES ALL RISK AND LIABILITY FOR ANY RESULT OF THE USE OF THIS PRODUCT, THE IMPROPER USE OF THIS PRODUCT, OR THE USE, WHETHER PROPER OR IMPROPER, OF ANY ADD-ONS TO THIS PRODUCT NOT MANUFACTURED BY THE MANUFACTURER . WITHOUT LIMITING THE FOREGOING, THE MANUFACTURER’S LIABILITY FOR DAMAGES HEREUNDER IS LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIFIC PERFORMANCE, LOST PROFITS, OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, IN TORT, CONTRACT, OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS. EACH PARTY ACKNOWLEDGES ITS DUTY TO MITIGATE DAMAGES HEREUNDER.
7. Compliance with Law. You agree to comply with all applicable laws and regulations of the various states and of the United States. The Buyer shall comply with all applicable laws, regulations, and ordinances. The Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. The Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under these Terms. The Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
8. Products Not for Resale. You represent and warrant that you are buying Products for your own personal or household use only, and not for resale or export.
9. Privacy. The Manufacturer respects your privacy and is committed to protecting it. Only authorized employees within the company use any information collected from individual customers on a need to know basis. The Manufacturer will not share any personal information of any Buyer unless mandated by law.
10. Force Majeure. The Manufacturer 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.
11. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida. 12. Dispute Resolution and Binding Arbitration.
(a) YOU AND THE MANUFACTURER 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. IF NOT RESOLVED THROUGH NEGOTIATION, 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 THE MANUFACTURER ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF THE
PRODUCTS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association pursuant to its then-current commercial arbitration rules and procedures. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
(c) 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 these Terms are 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.
(d) You may elect to pursue your claim in small-claims court rather than arbitration if you provide the Manufacturer with written notice of your intention do so within sixty (60) days of delivery of the Products. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.