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Purchase Agreement Terms And Conditions
MANIK TECHNOLOGIES, LLC TERMS AND CONDITIONS OF SALE AND SUPPLY
In these terms and conditions (“Conditions”) “Manik” means Manik Technologies, LLC; “the Goods” means any item of whatsoever nature or part thereof or service which is to be sold or supplied by Manik; “the Vehicle” means any vehicle comprising all or any of the goods; “the Customer” means the person who buys or has agreed to buy the goods. The purchase agreement, when accepted by Manik, is the only contract controlling the purchase, and contains all agreements, expressed or implied. Customer acknowledges that Manik will not recognize verbal agreements and that no part of this agreement can be modified except in writing and agreed to by Manik.
1. ACCEPTANCE OF ORDERS
1.1 Manik contracts for the supply of goods and/or services only subject to these Conditions and all terms and conditions in the Customer's order or enquiries inconsistent therewith shall be of no effect.
1.2 The placing of an order following a quotation given by Manik shall not be binding on Manik unless and until accepted by Manik in writing.
1.3 The terms and conditions contained herein shall constitute the entire agreement between Manik and the Customer and any modification to these Conditions will be binding only if it is evidence in writing signed on behalf of Manik and such evidence contains a specific reference to these Conditions being modified.
1.4 In no circumstances shall the Customer cancel a contract to which th ese Conditions apply without Manik's written agreement and in particular Manik shall not be obliged to accept returned goods unless specifically agreed to in writing by Manik and subject always to the Customer paying a handling charge.
1.5 All specifications, illustrations, colors, drawings and diagrams in Manik's catalogues, trade literature and other published matter are of a generally informative nature and are approximate only and none of these form part of any contract or give rise to any independent or collateral liability of whatsoever nature on the part of Manik and Manik shall be under no liability whatsoever for inaccuracies, changes or alterations in specifications dimensions or measurements given, quoted or made by it.
2. ESTIMATES AND PRICES
2.1 Unless otherwise stated in writing the prices estimated or quoted by Manik are exclusive of packaging freight and insurance charges, charges for delivery, VAT and other applicable taxes, duties or levies of any kind whatsoever all of which are payable in addition by the Customer.
2.2 Any date for collection quoted by Manik is an estimate only and Manik will in no circumstances be under any liability whatsoever for any failure to make the goods available for collection on any such date.
3.1 The time of payment shall be of the essence of any contract to which these Conditions apply and unless otherwise expressly stated payment shall be due as follows: 50% deposit on signing contract, and the final balance payment 7 days prior to collection.
3.2 The Customer shall not be entitled to make deduction from any payment due to Manik in respect of any set-off or counter-claim unless both the validity and the amount thereof have been expressly admitted in writing by Manik.
3.3 Without prejudice to any other rights, failure to pay the price or part thereof or other monies payable by the Customer will also entitle Manik at Manik's sole discretion either to refuse to make delivery of the goods or any further consignment of any goods agreed to be supplied or to cancel any contract to which these Conditions apply, either in whole or part, by notice in writing to the Customer and without incurring any liability to the Customer for any loss caused by such delay or cancellation.
3.4 Where a Customer offers for payment a check or checks that is not honored the Customer will be invoiced with any bank charges charged to Manik by reason thereof.
3.5 If the payment of the price or any part thereof and of all other sums payable by the Customer is not made on the due date Manik, without prejudice to its other rights hereunder shall be entitled to charge in addition to any monies due hereunder interest on the outstanding amount at the rate per annum of 4 per cent above the base rate from time to time of Manik's bankers calculated on a daily basis until payment is made.
4. TRANSFER OF PROPERTY
The goods shall remain the sole and absolute property of Manik as legal and beneficial owner and Manik reserves the right to dispose of the goods until such time as payment in full for all the goods the subject of a contract to which these Conditions apply together with the full price of any other goods the subject of any other contract with Manik has been received by Manik.
5. RISK AND INSURANCE
5.1 Subject as hereinafter provided the goods are at the Customer's sole risk (and the Customer shall be under a duty to insure the goods to their full value) from the occurrence of the first point in time of any of the following events:
The passing of property to the Customer as provided for in Condition 4 of these Conditions; or
The physical delivery of the goods to the Customer's place of business by Manik; or
The physical delivery of the goods to the Customer.
5.2 Manik will be under no obligation to effect insurance of the goods once risk has passed to the Customer.
6.1 Time of delivery shall not be of the essence. Orders will be made available for delivery as soon as reasonably predicable and Manik reserves the right to deliver by installment in such quantities as Manik thinks fit.
6.2 Manik shall endeavor to inform the Customer (or his nominated agent) as soon as the goods are ready for delivery.
6.3 Where the goods are made available for delivery in installment, each installment shall be construed as constituting a separate contract to which all the provisions of these Conditions shall (with any necessary alterations) apply.
6.4 In the event of any failure to make the goods available for delivery or delay making the goods available for delivery, the Customer shall have no claim whatsoever against Manik for any indirect or consequential loss or damage of any kind.
6.5 Without prejudice to any rights of Manik hereunder if the Customer shall fail to take delivery of the goods seven days following the date on which Manik informs the Customer the goods have cleared U.S. or Canadian Customs and that the goods are ready for final delivery. The Customer shall pay to Manik all storage and oth er costs of whatever nature incurred or arising from such failure.
6.6 Deviations in quantity or goods delivered from those stated in any contracts to which these Conditions apply shall not give rise to a right to reject on the part of the Customer and the Customer shall have no right to claim for damages for breach of contract but the Customer will only be obliged to pay at the contend rate for the goods delivered.
7. LIMITATION OF LIABILITY
7.1 The sole liability of Manik in respect of any defect in or failure of any goods or vehicle supplied or for any shortage in quantity of goods delivered or for any loss, injury or damage attributable, directly or indirectly, thereto (other than in respect of death or personal injury resulting from the negligence of Manik or its servants or agents) is limited to a period of 12 calendar months only from the date upon which the goods are delivered and limited to:
making good by replacement or (at the option of Manik); or
repairing defects or failures which under proper use appear th erein.
In addition Manik must be reasonably satisfied that such defects or failure arose solely from the faulty design of the goods, defective materials used or workmanship. Provided however that no liability shall attach to Manik:
unless Manik is notified promptly in writing of the alleged defect or failure and in the case of shortage within 7 days of taking delivery of the goods and a copy of the original purchase invoice is provided to Manik;
if Manik shall so require, the defective goods or part thereof are promptly returned to Manik carriage paid and in such case, Manik shall return the goods to the Customer carriage paid following repair, replacement or otherwise by Manik;
no repair alteration or remedy is made to the goods or the vehicle without the express written permission of Manik;
Manik will not be liable in respect of the use of all or part of the goods or vehicle in any form of motor sport or for any purpose other than that for which they were intended; and Manik will not be liable in relation to color fastness or color matching of original or replacement glass fiber panels.
7.2 If, without the prior written consent of Manik, repairs or alteration are made to the goods or to the vehicle, Manik shall be under no liability whatsoever in respect of the goods or vehicle or any reduction in performance or safety of the vehicle caused as a result of such unauthorized repairs, modifications or alterations.
7.3 The acceptance of liability contained in Clause 7.1 is given on the condition that the goods are used and the vehicle constructed in accordance with the manufacturers' instruction manual and without prejudice to the foregoing the use by the Customer of all parts recommended by Manik and where the goods are not so used and the vehicle is not so constructed Manik will be under no liability in respect of the goods, performance or safety of the vehicle.
7.4 All, if any, statements, recommendations, measurements, dimensions, specifications and advice given or made (whether before or after any contract to which these Conditions apply) by Manik or Manik's servants or agent to the Customer or its servants or agents as to any matter relating to the goods or the vehicle are given without liability whatsoever on the part of Manik and Manik hereby represents and warrants to the Customer that no representation has been made to Manik by or on behalf of the Customer before entering into any contract to which the Conditions apply and that no representation made to Manik by or on behalf of the Customer before entering into such contract has in any way induced Manik to enter into such contract and the Customer makes and gives the like representations and warranties (mutatis mutandis) to Manik as Manik makes and gives to the Customer as above.
7.5 Manik may in its absolute discretion refund the price of goods subject to the conditions contained in Clauses 7.1, 7.2 and 7.3 where such goods are in a saleable condition (to exclude special order Trim and Parts which are non-returnable). Such refunds will be subject to a 15% handling charge, which shall be deducted from the purchase price paid by the Customer as shown on the original invoice by Manik to the Customer.
7.6 Except as provided in sub-paragraph 1 and 2 above, all representations, guarantees, undertakings, conditions or warranties expressed or implied statutory or otherwise in relation to the goods are hereby expressly excluded PROVIDED ALWAYS that the statutory rights of the Customer in the case of a consumer sale shall remain in full force and effect. Manik will in no circumstances refund any monies paid by the Customer or replace any goods except in accordance with this Clause 7.
7.7 Without prejudice to the foregoing, Manik shall in no circumstances be liable:
for any indirect or consequential loss (including without limitation of loss of production, loss of profit, or liability to third parties) suffered or incurred by the Customer or others, or
for any loss or damage in excess of the contract price for the goods or part thereof in respect of which a claim is made.
for any malfunction or non-function of any goods to the extend that this is caused by incorrect installation or maintenance strictly in accordance with Manik's instructions.
The Customer shall (and shall ensure that any third party to whom the goods may subsequently be supplied) comply with all instructions of Manik and any other manufacturer in relation to the fitting, installation, service and use of the goods, and, not withstanding such compliance, the Customer shall keep Manik fully and effectually indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature and where so ever arising, including, without prejudice to the generality of the foregoing, claims for damage to property and consequential loss (including loss of profit) which may be made against Manik or which Manik may sustain, pay or incur arising out of or in connection with the supply, fitting, installation or use of the goods. A more detailed indemnification notice is provided for in the Indemnification Appendix attached and a part of this agreement.
9. FORCE MAJUERE
If Manik is prevented from fulfilling any order within a reasonable time by reason of force majuere of any cause beyond its reasonable control including, without prejudice to the generality of the foregoing war, threat of war, riots, civil commotion, act of God, government, terrorist activities, strikes, lockouts, industrial action, accident, technical problems with transportation, natural disaster, storm, flood, fire, earthquake, delay in any delivery to Manik of any goods or materials or interruption of its transport it shall be under no liability to the Customer and shall be entitled to its option (to be notified in writing to the Customer) either to cancel any contract to which these Conditions apply or without any liability, to extend the time or times for delivery or otherwise performing such contract by a period at least equivalent to that during such delivery or performance has been extended by any of the restrictions hereinbefore referred to.
10. DEFAULT AND CUSTOMERS INSOLVENCY
If there is any default or breach of any of the Customer's obligations hereunder or in any payments due under any contract of sale to which these Conditions apply or if any distress, execution or other legal process is levied upon the Customer's property or if the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order is presented or made against the Customer or, if a company, any resolution or petition to wind it up shall be passed or presented to a receiver of all or any of its assets shall be appointed then (without prejudice to other remedies) in any such case Manik may determine such contract or cancel any outstanding delivery or stop any products in transit and notwithstanding any other provisions.
Termination of any contract to which the Conditions apply for whatever causes shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum of money owing or to become owing by the other.
The Customer shall not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any person whatsoever.
All deposits are strictly non transferable and non refundable. A deposit of 50 percent of the total kit price, including shipping charges, must be submitted to Manik by the Customer with their initial order.
Financing is the responsibility of the Customer. Manik offers no in-house financing, but does offer financing though a third party. If financing offered by Manik is desired by the Customer, ability to obtain financing is totally at the discretion of the third party lender. Rejection of Customer's credit application does not cancel their financial obligations under this agreement. If the Customer wishes to make purchase contingent upon obtaining financing, the Customer may say so, in writing, on the face of this purchase agreement. Manik is not obligated to accept contingent contracts.
Resale of the Customer's goods or vehicle depends upon many factors including, but not limited to, the quality of any drive train components utilized by Customer, the amount of use and the consumer demand at the time the goods or vehicle are offered for sale. Resale is the sole responsibility of the Customer and in no event does Manik guarantee the resale or the resale price of any goods or vehicle.
16. EMISSIONS & EQUIPMENT
It is the responsibility of the Customer to ensure to their Vehicle meets the emission certification and vehicle equipment requirements in their respective state or province. This applies to custom built, rolling chassis, or kit purchases.
17. NON-COMPETITIVE AGREEMENT
Customer acknowledges that Westfield Sportscars Ltd. has the sole rights to the design and component manufacture of the Westfield Component Kit or Vehicle . Customer agrees and warrants that they will not attempt to copy or reproduce these products either on whole or in part. Customer agrees that they will not allow their agents to do so, nor will they act as agents for any other person, group or corporation to do so. Customer will not claim products as their own and will not make any claims to the right to sell these products. (Except the resale of their own goods or vehicle.) Customer further agrees that the provisions of this agreement shall be binding on their heirs, personal representatives, successors and assigns.
This Agreement is to be governed by the laws of the State of Texas, without giving effect to the principles of conflict of laws. Each of the parties consents to binding arbitration as provided in this paragraph for any dispute among the parties arising out of matters related to this Agreement. Each of the parties waives the right to commence an action in connection with this Agreement in any court and expressly agrees to be bound by the decision of the arbitrator as provided herein. The waiver in this paragraph will not prevent any party from commencing an action exclusively in a Dallas County State District Court for the sole purposes of enforcing the obligation of a party to submit to binding arbitration or the enforcement of an award granted by arbitration herein. In the event of any dispute among the parties as to the interpretation of any provision of this Agreement or the rights and obligations of any party hereunder, such dispute shall be resolved through binding arbitration as hereinafter provided. If arbitration is required to resolve a dispute among the parties, any party may notify J.A.M.S./Endispute ("Agency") and request Agency to select one person to act as the arbitrator for resolution of the dispute. The arbitrator selected pursuant to this paragraph will establish the rules for proceeding with the arbitration of the dispute and such rules will be binding upon all parties to the arbitration proceeding. The arbitrator may use the rules of the Agency for commercial arbitration but is encouraged to adopt such rules, as the arbitrator deems appropriate to accomplish the arbitration in the quickest and least expensive manner possible. Accordingly, the arbitrator may (i) dispense with any formal rules of evidence and allow hearsay testimony so as to limit the number of witnesses required, (ii) accept evidence of fair market value without formal appraisals and upon such information provided by parties or other persons and otherwise minimize discovery procedures as the arbitrator deems appropriate, (iii) act upon his understanding or interpretation of the law on any issue without the obligation to research such issue or accept or act upon briefs of the issue prepared by any party, (iv) limit the time for presentation of any party's case as well as the amount of information or number of witnesses to be presented in connection with any hearing, and (v) impose any other rules which the arbitrator believes appropriate to effect a resolution of the dispute as quickly and inexpensively as possible. The arbitrator will have the exclusive authority to determine and award costs of arbitration and the costs incurred by any party for their attorneys, advisors and consultants. Any award made by the arbitrator shall be binding on the parties and shall be enforceable to the fullest extent of the law. Any arbitration hereunder shall be conducted in Dallas, Texas.
Updated - January 2013