ALL SALES BY ELKA SUSPENSION INC. (“ELKA”) ARE SUBJECT TO AND CONDITIONNED UPON PURCHASER ACCEPTANCE OF THE TERMS CONTAINED IN THIS TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY PURCHASER ARE OBJECTED TO BY AND WILL NOT BE BINDING UPON ELKA UNLESS SPECIFICALLY ASSENTED TO IN WRITTING BY ELKA. AS USED IN THIS TERMS AND CONDITIONS OF SALE, “PRODUCTS” MEANS THE PRODUCTS DESCRIBED IN THE ATTACHED PURCHASE ORDER..

1. DELIVERY

1.1. Delivery terms for the Products shall be governed by the applicable Incoterms, as specified in the relevant Purchase Order (PO) or invoice issued by Elka. For further clarification on the Incoterms, refer to the official guide available here :

https://www.bgiworldwide.com/wp-content/uploads/2022/03/BGI_Incoterms2020_Chart.pdf

In case of any conflict between these Terms and Conditions and the PO or invoice, the terms stated in the PO or invoice shall prevail with respect to the delivery of the Product.

2. PAYMENT

2.1. Purchaser hereby agrees to pay the purchase price set forth in the attached purchase order or invoice (the “Purchase Price”). The Purchase Price is exclusive of any taxes, duties or custom charges. Any tariffs, duties, or taxes imposed due to trade regulations, shall be the sole responsibility of the Purchaser. Purchaser shall bear the cost of any tariffs, customs duties, or taxes arising from the importation of the Products. . Unless Elka requires payment for the Products prior to Delivery, the Purchaser shall pay the Purchase Price within 30 days following Delivery of the applicable Products. If the Purchaser fails to make payment by the due date or is otherwise in breach of these Terms and Conditions, Elka may, at its discretion and without prejudice to any other rights or remedies, either:

· Withhold Delivery of any future Products; or

· Require the Purchaser to prepay for any future Deliveries.

Any sum not paid when due shall accrue interest at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is lower.

3. WARRANTY

3.1. Elka warrants that the Products will be free from defects in material and workmanship under normal use and service for a period of 12 months from the Delivery. Warranty claims must be made within 30 days after the defect is discovered or should have been discovered, and in no event later than 12 months from the Delivery date.. Elka shall, at its sole discretion, repair or replace any defective part(s) covered by this warranty and claimed within the warranty period. If the defect is determined to be covered by the warranty, Elka shall bear the cost of labor and replacement parts. However, if Elka determines that the part(s) are not defective, or if the warranty does not apply, the Purchaser shall be responsible for all costs, including transportation, labor, and parts.3.2. This warranty does not apply to:

(i) any Products, component, or part that Elka determines has been subject to misuse, negligence, accident, improper installation, repair, modification, or alteration by any party other than Elka or its authorized personnel;

(ii) components of the Products for which another manufacturer has provided a warranty (in such case, Elka shall not be responsible, but will make reasonable efforts to assist the Purchaser in pursuing the warranty);

(iii) normal wear and tear, routine maintenance, or operator adjustments.3.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY AND EXCEPT FOR THE WARRANTY OF TITLE, ELKA DISCLAIMS ALL TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

3.4. Purchaser’s exclusive remedy for any defect or nonconformity in the Products is limited to repair or replacement as set forth in this Section 3.1. UNDER NO CIRCUMSTANCES SHALL ELKA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES, PROFITS, BUSINESS INTERRUPTION, OR DAMAGES ARISING OUT OF BREACH OF CONTRACT, TORT, EXTRA-CONTRACTUAL LIABILITY, BREACH OF WARRANTY, OR NEGLIGENCE, WHETHER OR NOT ELKA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELKA’S AGGREGATE LIABILITY UNDER THIS TERMS AND CONDITIONS SHALL IN ANY CASE BE LIMITED TO THE TOTAL OF THE PURCHASE PRICE ACTUALLY RECEIVED BY IT.

3.5. The warranty set forth in this Article 3 is personal to Purchaser and is not transferable. Purchaser shall not assign or transfer any rights under this warranty without Elka’s prior written consent.

4. TITLE, RISK OF LOSS

4.1. Purchaser hereby grants to Elka a continuing security interest in all Products delivered, and title to such Products shall remain with Elka (in accordance with sections 1745 to 1749 of the Civil Code of Quebec) until the full Purchase Price for the Products has been paid by the Purchaser to Elka. Notwithstanding the delivery of the Products, the Purchaser shall have no right to sell, transfer, or otherwise dispose of the Products until the Purchase Price is fully paid. Title to the Products shall only pass to the Purchaser upon full payment of the Purchase Price, at which time Elka shall execute such documents as may be necessary to transfer title.

5. TRADE-MARKS

5.1. “Elka Suspension,” the “Elka Suspension” logos, “Track System,” the “Track System” logo, and “Miniseries” (collectively, the “Trademarks”) are exclusive trademarks of Elka. Purchaser acknowledges that Elka is the sole owner of the Trademarks and agrees not to use, reproduce, display, or otherwise exploit any of the Trademarks without Elka’s prior written consent. Purchaser further agrees not to make any endorsement, promotion, advertising, or any form of commercial use in relation to or using the Trademarks, any Elka products, or any Products, including but not limited to the Products, without Elka’s prior written consent. Any unauthorized use of the Trademarks will constitute a material breach of this agreement and may result in the termination of the agreement.

6. MISCELLANEOUS

6.1. Each Party acknowledges that the other Party entered into this Terms and Conditions in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages, and the other Party’s indemnity obligations set forth herein, and that these provisions form an essential basis of the bargain between the Parties. The Parties further agree that the limitations and exclusions of liability and disclaimers specified in this Terms and Conditions will survive the termination or expiration of this Terms and Conditions and apply even if other provisions of this Terms and Conditions are found to have failed of their essential purpose.

6.2. The Parties are independent contractors under this Terms and Conditions, and no employee, agent, or representative of either Party shall be deemed to be an employee, agent, or representative of the other for any purpose whatsoever. Nothing in this Terms and Conditions shall be construed to create a partnership, joint venture, or agency of any kind, and neither Party shall have the authority to bind the other Party.

6.3. The failure or delay of any Party to enforce at any time or for any period of time any of the provisions of this Terms and Conditions shall not constitute a waiver of such provisions nor of the right of either Party to enforce each and every provision hereof in the future, even if such failure or delay is repeated.

6.4. All provisions of this Terms and Conditions shall be binding upon the Parties hereto and their respective successors or permitted assigns. Elka may assign this Terms and Conditions without the written consent of the Purchaser, and the Purchaser shall not assign this Terms and Conditions or any rights or obligations hereunder without the prior written consent of Elka, which may be withheld at its sole discretion.

6.5. This Terms and Conditions shall be construed and enforced in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein, without regard to its conflict of law principles, and the Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Quebec. The Parties further agree that the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply, and they hereby exclude its application under An Act Respecting the United Nations Convention on Contracts for the International Sale of Goods, R.S.Q., c. C-67.01.

6.6. The Parties hereto expressly require that this Terms and Conditions and all documents and notices relating thereto be drafted in the English language. Les Parties aux présentes ont fait la demande expresse que cette convention et tous documents et avis y afférant soit rédigés en anglais.

6.7. If any new or additional trade tariffs, duties, or taxes are imposed on the Products sold by Elka as a result of changes in trade regulations, including but not limited to, any tariffs imposed by the United States on imports from Canada, the Purchaser shall be responsible for payment of such tariffs, duties, or taxes. Elka shall not be liable for any increase in the Purchase Price due to these tariffs, duties, or taxes, and such costs shall be borne solely by the Purchaser. If any such tariffs, duties, or taxes result in an increase in the cost of the Products that materially affects the Purchaser’s ability to pay, Elka may, at its sole discretion, suspend or terminate the delivery of Products.

Delivery terms for the Products shall be governed by the applicable Incoterms, as specified in the relevant Purchase Order (PO) or invoice issued by Elka. For further clarification on the Incoterms, refer to the official guide available here :

https://www.bgiworldwide.com/wp-content/uploads/2022/03/BGI_Incoterms2020_Chart.pdf

In case of any conflict between these Terms and Conditions and the PO or invoice, the terms stated in the PO or invoice shall prevail with respect to the delivery of the Product.