ALL SALES MADE BY ELKA SUSPENSION INC. (“ELKA”) ARE SUBJECT TO THESE GENERAL TERMS AND CONDITIONS OF SALE AND ARE EXPRESSLY CONDITIONED UPON THE BUYER’S ACCEPTANCE OF THEM. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY THE BUYER ARE HEREBY EXPRESSLY REJECTED BY ELKA AND SHALL NOT BE BINDING UPON ELKA UNLESS EXPRESSLY AGREED TO BY ELKA IN WRITING. AS USED HEREIN, THE TERM “PRODUCTS” MEANS THE PRODUCTS DESCRIBED IN THE APPLICABLE PURCHASE ORDER, ORDER CONFIRMATION OR INVOICE.

0. CONTRACT FORMATION, ORDER CONFIRMATION, CANCELLATION AND CHARGES

0.1 Contract Formation – General Rule

No order shall be deemed accepted or released into production by ELKA unless and until the customer has provided its explicit written acceptance.

The customer’s silence, failure to respond, or the passage of time, including any period referred to in a quotation, shall not constitute acceptance and shall not form a contract.

0.2 Order Confirmation – B2B Customers

For customers acting in the course of business (B2B), explicit acceptance may take any of the following forms:

a) submission of a valid purchase order (“PO”);

b) written approval by email (e.g., “approved”); or

c) signature or approval of an order confirmation issued by ELKA.

Certain specific arrangements applicable to particular B2B customers, including without limitation the use of purchase orders without prior quotation approval, may be set out in a separate written agreement entered into with ELKA. In the event of a conflict, such separate written agreement shall prevail, but only with respect to those specific arrangements.

ELKA’s receipt of a valid PO shall constitute final and complete acceptance of the offer, including, without limitation, the technical specifications, quantities, prices, lead times and these General Terms and Conditions of Sale. ELKA may, for administrative and evidentiary purposes, issue a formal order confirmation; however, such order confirmation shall not be required for contract validity where explicit acceptance has already been given.

0.3 Order Confirmation – B2C Customers (Québec)

Where the customer is a consumer within the meaning of the Consumer Protection Act (Québec), any order must be accepted in accordance with all applicable legal requirements, including the prior, clear and complete disclosure of all information required before the contract is entered into. No B2C order shall be deemed accepted on the basis of the consumer’s silence.

0.4 Commencement of Production

Production of the Products shall begin only after ELKA has received explicit acceptance in accordance with Sections 0.1 to 0.3. Once production has commenced, the order shall be deemed to be in performance, which may limit or exclude any right of cancellation.

0.5 Cancellation Before Production Begins

If production has not yet commenced (no materials allocated and no manufacturing order released), the order may be cancelled without charge.

0.5.1 Dedicated Materials and Components

Upon acceptance of an order, the customer authorizes ELKA to procure materials, springs, components or other items specifically dedicated to the order, including long-lead or non-standard items, before a manufacturing order is released. If the customer cancels the order before production begins and ELKA has, in good faith and in reasonable anticipation of production, procured or committed to procure such dedicated items, the customer shall reimburse ELKA for the actual, reasonable and documented cost of those items that cannot be reallocated, returned or reasonably resold, together with any related restocking, return or handling charges. Where the customer is a consumer within the meaning of the Consumer Protection Act (Québec), such costs shall be limited to those actually and reasonably incurred and shall be disclosed to the customer before the customer is bound to them.

0.6 Cancellation After Production Begins – Applicable Charges

Any cancellation of an accepted order for which production has commenced shall result in production charges equal to twenty percent (20%) of the total order value. Such charges constitute a reasonable estimate of costs incurred by ELKA, including, without limitation, planning, engineering, resource allocation, labour and components, and shall not be construed as a penalty.

0.7 Completed Order – Non-Cancellable

No cancellation shall be accepted once assembly has been completed or the Products are ready for shipment, including in the case of Products manufactured or configured to the customer’s specifications.

0.8 Special Provisions – B2C Customers (Québec)

Where the customer is a consumer within the meaning of the Consumer Protection Act (Québec):

• the cancellation policy and applicable charges shall be clearly disclosed before the sale is concluded;

• the 20% incurred production charge shall apply only to the extent permitted by law;

• restrictions on, or refusal of, cancellation shall apply primarily to customized Products or Products configured to the customer’s specifications; and

• the total price, including all applicable charges, shall be disclosed before payment is made.

0.9 Customer Responsibility – Accuracy of Information

The customer is solely responsible for the accuracy of all information provided in connection with the order, including, without limitation, technical specifications, intended applications, quantities and delivery addresses.

Any error resulting from information provided by the customer may give rise to additional charges, delays or limitations on cancellation in accordance with these General Terms and Conditions of Sale.

0.10 Prevailing Effect of this Section

This Section 0 shall prevail over any prior practice, internal policy or trade usage to the contrary and shall supplement Sections 1 through 7 of these General Terms and Conditions of Sale.

1. DELIVERY

1.1 Delivery Terms

Delivery of the Products shall be governed by the applicable Incoterms, as specified in the applicable purchase order or invoice issued by ELKA. For additional information regarding Incoterms, please refer to the official guide available here:

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

In the event of any conflict between these General Terms and Conditions of Sale and the purchase order or invoice, the terms set forth in the purchase order or invoice shall prevail solely with respect to delivery of the Products.

Customs Clearance – Shipments to the United States (B2C Customers)

For certain shipments to the United States, particularly where the order value exceeds applicable thresholds, the carrier, its customs broker, or U.S. customs authorities may contact the customer to obtain a tax identification number required for customs clearance, in accordance with U.S. regulatory requirements (including, where applicable, CBP Form 5106).

For businesses, this may include an Employer Identification Number (EIN).

For individuals, this may include a Social Security Number (SSN), a number assigned by U.S. customs authorities, or any other tax identifier accepted by the competent authorities.

The customer acknowledges and agrees that:

• ELKA SUSPENSION INC. is not responsible for customs clearance formalities carried out by carriers, their customs brokers or customs authorities;

• any request for a tax identification number shall be made directly by the carrier, its customs broker or the competent authorities, and the customer must respond only through their secure and verified channels; and

• ELKA SUSPENSION INC. does not collect, receive or process any tax identification number and will never request transmission of such information by email, text message or any other unsecured means.

Refusal or Failure to Provide Required Clearance Information

If a shipment is delayed, blocked, returned or otherwise affected because the customer refuses or fails to provide information required for customs clearance, including any tax identification number required by customs authorities or their agents, the customer acknowledges and agrees that:

• such refusal or failure shall constitute an impediment to delivery attributable solely to the customer;

• the shipment shall be deemed to have been validly made available to the customer, and delivery shall be deemed completed for the purposes of these General Terms and Conditions of Sale;

• all risks relating to the Products, including in the event of loss, damage, destruction, return or abandonment of the goods, shall pass to the customer as of the date the shipment is made available to the carrier, its customs broker or the competent authorities;

• ELKA SUSPENSION INC. shall not be liable for any delay, blockage, return or cancellation of the shipment;

• the order shall be handled in accordance with these General Terms and Conditions of Sale, including:

– the application, where applicable, of incurred production charges equal to twenty percent (20%) of the order value; and

– invoicing of all transportation, return, customs clearance and handling charges incurred; and

• no cancellation or refund shall be granted in respect of Products manufactured or configured to the customer’s specifications.

Exception – Consumers (B2C)

Notwithstanding any provision to the contrary in this Section, where the customer is a consumer within the meaning of applicable consumer protection legislation, the provisions relating to deemed delivery and transfer of risk shall apply only to the extent permitted by law. In all cases, risk relating to the Products shall pass to the consumer in accordance with the mandatory provisions of applicable law.

However, a consumer’s refusal or failure to provide information reasonably required for customs clearance may result in delay, blockage, return or cancellation of the shipment and may give rise to the invoicing of charges reasonably incurred by ELKA SUSPENSION INC., to the extent permitted by law.

2. PAYMENT

2.1 Payment Terms

The Buyer agrees to pay ELKA the purchase price set forth in the applicable purchase order or invoice (the “Purchase Price”). The Purchase Price excludes all taxes, customs duties, tariffs and other customs-related charges. Any tariff, tax or duty imposed under applicable trade regulations shall be the sole and exclusive responsibility of the Buyer.

Unless ELKA requires prepayment prior to delivery, the Purchase Price shall be due and payable within thirty (30) days following delivery of the Products.

If the Buyer fails to make payment when due, or otherwise breaches any provision hereof, ELKA may, without prejudice to any other rights or remedies available to it:

• suspend any future deliveries of Products; or

• require advance payment as a condition to any further delivery.

Any amount not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month, being eighteen percent (18%) per annum, or at the maximum rate permitted by law, whichever is lower.

3. LIMITED WARRANTY

3.1. Elka warrants that the Products shall be free from defects in materials and workmanship, when used in accordance with Elka’s specifications and recommendations and under normal operating conditions, excluding, without limitation, extreme conditions or competitive use except as expressly provided herein (including Section 3.6), for a period of twelve (12) months from the date of delivery.

Any claim under this warranty must be submitted within thirty (30) days following the discovery or presumed discovery of the defect, but in no event later than twelve (12) months from the date of delivery. Elka may, at its sole discretion, repair or replace any defective part covered by this warranty. If Elka determines that the defect is covered by the warranty, it shall bear the cost of labor and replacement. If Elka determines that the Products are not defective, or that the warranty does not apply, the Buyer shall be responsible for all costs, including transportation, labor, and parts.

This warranty applies only to Products purchased from an Elka authorized distributor or seller.

3.2. This warranty shall not apply to:

(i) Products or components that have been, in Elka’s opinion, misused, neglected, accidentally damaged, improperly installed, modified, or repaired by any person other than Elka or an authorized representative;

(ii) components covered by an original manufacturer’s warranty (Elka shall not be responsible for such warranties but may reasonably assist the Buyer in enforcing them);

(iii) normal wear and tear, including, but not limited to, wear components such as seals, O-rings, wipers, bushings, bearings, spherical bearings (heim joints), wear bands, and any other consumable component of a similar nature subject to friction or progressive degradation under normal use. Such components are warranted against defects in materials and workmanship for a period of three (3) months from the date of delivery only. After such period, any wear or degradation shall be deemed normal and not covered by this warranty;

(iv) abnormal or premature wear resulting from severe or extreme use conditions, including, without limitation, racing, competitive use, intensive off-road use, repeated impacts, or any use exceeding the intended normal operation of the Product. Such wear shall not be considered a defect in materials or workmanship and is expressly excluded from this warranty;

(v) Products that have not been maintained in accordance with Elka’s recommendations as set out in the Product documentation, and only to the extent the alleged defect results from such failure to maintain.

3.3. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND EXCEPT FOR THE WARRANTY OF TITLE, ELKA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE FOREGOING DISCLAIMERS APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW AND, WHERE THE BUYER IS A CONSUMER, DO NOT AFFECT ANY LEGAL OR STATUTORY WARRANTY UNDER THE CONSUMER PROTECTION ACT (QUEBEC), THE CIVIL CODE OF QUEBEC, OR ANY OTHER APPLICABLE LAW.

3.4. The sole and exclusive remedy of the Buyer for any defect or non-conformity shall be repair or replacement as provided above. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELKA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, OR BUSINESS INTERRUPTION, OR DAMAGES ARISING FROM BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF ELKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELKA’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE TOTAL PURCHASE PRICE ACTUALLY PAID TO ELKA. THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS SECTION DO NOT APPLY TO BODILY OR MORAL INJURY OR TO DAMAGES RESULTING FROM ELKA’S INTENTIONAL OR GROSS FAULT.

ELKA SHALL NOT BE RESPONSIBLE FOR ANY COSTS RELATED TO THE REMOVAL, INSTALLATION, OR REINSTALLATION OF THE PRODUCTS, UNLESS EXPRESSLY PROVIDED OTHERWISE.

TO THE EXTENT THAT ANY LIMITATION OF LIABILITY SET FORTH HEREIN IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, SUCH LIMITATION SHALL BE MODIFIED ONLY TO THE EXTENT NECESSARY TO MAKE IT ENFORCEABLE.

3.5. The warranty set forth herein is personal to the Buyer and is non-transferable without the prior written consent of Elka, except to the extent otherwise required by applicable law.

3.6. Racing and Extreme Use

Elka Products are designed to deliver high performance and may be used in demanding conditions, including racing or off-road use.

However, due to the inherently variable and uncontrollable nature of such conditions, Elka warrants the Products only against defects in materials and workmanship, in accordance with this warranty.

Without limiting the foregoing:

(i) any wear, deterioration, or failure resulting from racing, competition, or extreme use conditions shall be presumed not to be a covered defect, unless it can be demonstrated to result from a manufacturing defect;

(ii) the Buyer assumes all risks associated with the use of the Products under such conditions;

(iii) Elka shall not be liable under any circumstances for any property damage, including damage to vehicles, arising directly or indirectly from such use to the maximum extent permitted by applicable law. Nothing in this Section limits Elka’s liability for bodily or moral injury or for its intentional or gross fault.

3.7. Products Made to Customer or Third-Party Specifications

Where Products are manufactured, configured or calibrated in accordance with specifications, designs, valving, spring rates, settings or other parameters provided or requested by the customer or by a third party (including a distributor, tuner or partner), Elka’s warranty is limited to (i) conformity of the Products to the specifications so provided and (ii) the absence of defects in materials and workmanship. Elka makes no warranty and assumes no responsibility as to the suitability, performance, safety, reliability or results of such specifications, or their fitness for any particular application or end use, all of which remain the sole responsibility of the party that developed them. The customer is responsible for the adequacy of the specifications and for validating and testing the Products in the final application. To the fullest extent permitted by law, and except as against a consumer, the customer shall indemnify and hold Elka harmless from any claim, loss or damage arising out of or relating to the specifications so provided. Nothing in this Section limits any right or warranty that cannot be excluded under applicable law, including liability for bodily or moral injury (art. 1474 C.C.Q.) and the legal warranty owed to a consumer.

4. TITLE AND RISK OF LOSS

4.1 Retention of Title

The Buyer hereby acknowledges and agrees that ELKA retains title to all delivered Products by way of a reservation of ownership. Title to the Products shall remain vested exclusively in ELKA, in accordance with articles 1745 to 1749 of the Civil Code of Québec, until the Purchase Price has been paid in full. To be opposable to third parties, ELKA may publish its reservation of ownership in the Register of Personal and Movable Real Rights (RDPRM), and the Buyer shall provide the cooperation reasonably required to do so.

Even after delivery, the Buyer shall not sell, transfer or otherwise dispose of the Products unless and until full payment has been made. Title shall transfer to the Buyer only upon ELKA’s receipt of full payment.

5. TRADEMARKS

5.1 Ownership and Use of Trademarks

The trademarks “Elka Suspension”, the “Elka Suspension” logos, “Track System”, its logo, and “Miniseries” (collectively, the “Marks”) are the exclusive trademarks of ELKA. The Buyer acknowledges that ELKA is the sole owner of the Marks and agrees not to use them without ELKA’s prior written authorization. Any unauthorized use shall constitute a material breach of this agreement and may result in its immediate termination.

6. MISCELLANEOUS

6.1 Essential Basis of the Bargain

Each Party expressly acknowledges and agrees that the other Party has entered into these General Terms and Conditions of Sale in material reliance on the limitations and exclusions of liability, warranty disclaimers, non-indemnification provisions and indemnity obligations set forth herein. The Parties agree that such provisions are fundamental and essential elements of their commercial agreement and that, absent such provisions, they would not have entered into the transaction on the same terms.

The Parties further agree that the limitations or exclusions of liability, warranty disclaimers and indemnity-related provisions shall survive the termination or expiry of these General Terms and Conditions of Sale, regardless of the cause thereof, and shall remain effective notwithstanding that one or more other provisions hereof may be held invalid, unenforceable or deprived of their purpose or effect.

6.2 Independent Contractors

The Parties expressly agree that each is acting as an independent contractor under these General Terms and Conditions of Sale, and that in no event shall any employee, agent, servant or representative of one Party be deemed to be an employee, agent, servant or representative of the other Party for any purpose whatsoever.

Nothing contained herein shall be construed as creating a partnership, joint venture, undeclared partnership, fiduciary relationship or similar arrangement between the Parties, and neither Party shall have any power or authority to bind the other in any manner whatsoever without the other Party’s prior express written consent.

6.3 No Waiver

No failure or delay by either Party at any time, or over any period of time, in requiring strict performance of any provision of these General Terms and Conditions of Sale, or any tolerance of any temporary or repeated breach by the other Party, shall be construed as a waiver, whether express or implied, of any right under these General Terms and Conditions of Sale.

Any such failure, delay or tolerance shall not impair the right of that Party to enforce such provision or any other provision at any time thereafter, with or without notice.

6.4 Assignment

All covenants and agreements contained herein shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors, assigns or permitted assigns, as applicable.

ELKA reserves the right to assign, transfer or delegate these General Terms and Conditions of Sale, in whole or in part, to any third party of its choosing without the Buyer’s prior written consent.

The Buyer may not assign, transfer or otherwise dispose of any of its rights or obligations hereunder without ELKA’s prior written consent, which may be withheld in ELKA’s sole discretion and without justification.

6.5 Governing Law and Jurisdiction

These General Terms and Conditions of Sale shall be interpreted, governed and enforced in accordance with the laws in force in the Province of Québec and the federal laws of Canada applicable therein, without regard to any conflict of laws principles that might otherwise apply.

The Parties irrevocably attorn to the judicial district of Montréal, Province of Québec, and submit to the exclusive jurisdiction of the courts of Québec for any dispute, controversy or proceeding arising out of or relating, directly or indirectly, to these General Terms and Conditions of Sale.

The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (the “CISG” or “Vienna Convention”), in accordance with the Act respecting the United Nations Convention on Contracts for the International Sale of Goods, CQLR, c. C-67.01.

6.6 Tariffs, Import Duties and Additional Taxes

In the event that new tariffs, import duties or additional taxes are imposed on Products sold by ELKA, including as a result of changes to international trade regimes, including without limitation the imposition by the United States of tariffs on imports originating from Canada, the Buyer acknowledges and agrees that it shall bear sole and full responsibility for payment of such amounts.

ELKA shall not be liable for any increase in the Purchase Price resulting from such changes, and all such additional charges shall be borne exclusively by the Buyer.

If such charges result in a substantial increase in the total cost of the Products, such that the Buyer’s ability to fulfil its payment obligations is materially affected, ELKA may, in its sole discretion, temporarily suspend or permanently discontinue delivery of the Products, without further liability, recourse or compensation.

6.7 Language – Prevailing French Version for Québec

For contracts governed by the laws of Québec, the Parties acknowledge and agree that a French version of these General Terms and Conditions of Sale has been made available to the Buyer and, where the Buyer is a consumer or the contract is one of adhesion, was remitted to the Buyer before it agreed to be bound by this English version, as required by the Charter of the French Language and that in the event of any discrepancy, inconsistency or conflict between the French version and this English version, the French version shall prevail.

7. FORCE MAJEURE

7.1 Force Majeure Events

NEITHER ELKA NOR THE BUYER SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS UNDER THESE GENERAL TERMS AND CONDITIONS OF SALE (OTHER THAN PAYMENT OBLIGATIONS) IF SUCH FAILURE OR DELAY RESULTS FROM AN EVENT BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY, INCLUDING, WITHOUT LIMITATION: ACTS OF GOD, NATURAL DISASTERS, EPIDEMICS OR PANDEMICS, WAR, TERRORISM, GOVERNMENTAL ACTIONS OR REGULATIONS, EMBARGOES, STRIKES OR LABOUR DISTURBANCES, POWER FAILURES, TRANSPORTATION DISRUPTIONS, SUPPLY CHAIN INTERRUPTIONS, OR OTHER UNFORESEEABLE EVENTS (EACH, A “FORCE MAJEURE EVENT”).

7.2 Notice and Mitigation

The affected Party shall promptly notify the other Party in writing of the occurrence of any Force Majeure Event and shall use reasonable efforts to mitigate its effects.

7.3 Termination for Extended Force Majeure

If a Force Majeure Event continues for more than thirty (30) days, either Party may terminate the affected portion of these General Terms and Conditions of Sale without liability by written notice to the other Party

1.6. Contact

For any return request or assistance:
Email: support@elkasuspension.com
Toll Free: 1-800-557-0552
Elka Suspension reserves the right to amend this policy at any time without prior notice. The
version published on its website shall prevail