GENERAL TERMS & CONDITIONS OF SALE AND PERFORMANCE OF SERVICE
1. Quotations, Purchase Orders and Services.
a. These General Terms & Conditions of Sale and Performance of Services (“T&Cs”) shall control the purchase of “Services” performed or provided by Elite Electronic Engineering, Inc., its affiliates or subsidiaries (“Elite”) for a “Client.” As used herein, Client is understood to be the person or entity purchasing the Services and listed on Elite’s Quotation, Certification Agreement or License Agreement as the customer or client. Elite and Client are each a “Party”, and both are the “Parties.” Client accepts these T&Cs by submitting to Elite one or more of: i) an accepted Elite Quotation, ii) a Purchase Order for a corresponding Elite Quotation, iii) a signed Elite Certification Agreement, or iv) a signed Elite License Agreement. Any of the preceding Elite documents may more specifically define the Services. Elite’s Quotations are valid only if: i) a quotation and an expiration date are listed on the Quotation; and ii) Elite receives Client’s written acceptance of the Quotation before the expiration date.
b. Scheduling and Client Cancellations. If applicable, Client shall contact Elite’s designee to schedule the Services performed by Elite. For whole vehicle services, if Client cannot meet a scheduled start date, then Client must notify Elite no later than thirty (30) calendar days prior to such scheduled start date. For all other services, if Client cannot meet a scheduled start date, then Client must notify Elite no later than seven (7) calendar days prior to such scheduled start date. Cancellations, rescheduling or delays by Client within the above designated days of the scheduled start date will result in the assessment of a fee equal to 15% or greater of the Quotation for Services based on the conditions of the lost scheduled time.
c. Purchase Order and Payments. Either a Purchase Order listing Elite’s Quotation number or Client’s credit card information, must be received and approved at or prior to scheduling the Services. No Services will start without prior approval of the Purchase Order and/or receipt of Client’s credit card information. Client should submit Purchase Orders by fax to (630)495-9785 or by email to address listed on the Quotation. Credit card information may be provided over the phone (630) 495-9770; and credit card charges greater than $8,000 will incur a 3.5% surcharge. Any payments not required in advance of the Services are due no later than 30 days after the start of Services, unless otherwise agreed and accepted by Elite in writing. Any late payments are subjected to a 1.8% interest charge per month. Elite may issue invoice(s) on a Client’s open account if current. Client agrees Elite may submit partial invoice(s) for Services completed or lab time expended as of the date of such partial invoice, and/or for materials, specialized equipment or matters procured by Elite necessary to perform the Services.
2. Client’s Property. Client shall provide all samples or “Property” required for Elite to perform the Services. Client represents and warrants to Elite that the Property is not submitted in violation of any third-party’s intellectual or other property rights. The Property shall be provided in working order prior to the start of Services. Client is responsible for such pick-up, retrieval or payment of the expense for shipping/mailing of the returned Property, the price for which may be invoiced with the Services even if such expense was not included on the Quotation. If such Property, which was designated for pickup and return, is left for more than thirty (30) days after the Services are complete, then and without notice, Client will be charged a daily rate of not less than $35/day for storage of the Property. If such Property that was designated for pickup and return is not retrieved by Client within sixty (60) days, then Elite may, in its sole discretion, dispose of the Property. If the Property subject to the Services is not designated in writing for return, then at any time following completion of the Services, Client authorizes Elite to dispose of the Property. 3. Client Documentation and Information. Client shall, timely and in advance of the Services, provide Elite with all documentation and information necessary for, or requested by, Elite to perform the Services. Client represents and confirms the accuracy of all documentation and information that Client provides to Elite for the Services.
4. Formal Report. If the Services include, as a deliverable, a “Formal Report” of Elite’s findings then such Formal Report will include only those facts and circumstances observed and recorded by Elite during the time and place of the Services, within any limits or pursuant to instructions, documentation or information received from Client. Client will not use and will not rely upon the Formal Report for any product whose properties, documentation or information differ from the Property or documentation and information that Client provided to Elite for the Services. If Client submits to any entity or regulatory body any documents or applications based upon the Formal Report, then Client accepts sole responsibility for and shall be exclusively liable for the accuracy of such submitted documents or applications. Client’s sole responsibility and exclusive liability for the accuracy and content of such documents or applications shall apply even if Elite aided Client in preparation of such documents or applications. Elite shall not be responsible for any third party’s interpretation of the formal report. If Client anticipates using the Formal Report in any legal proceedings, Client shall notify Elite in writing and not less than thirty (30) days prior to submitting the Formal Report in the legal proceeding.
5. No Warranty or Guarantee. Elite does not warrant or guarantee Client’s Property or products. Any Formal Report is not and shall not be construed or interpreted as a warranty or guarantee. Client agrees and understands that Elite is not an insurer or a guarantor, and by providing the Services Elite does not intend to create third party beneficiary status to any other person or entity that may be affiliated or otherwise does business with or is a customer of Client, specifically including, but not limited to, designers, manufacturers, agents, Clients, distributors, and transportation companies. Elite disclaims all liability in any capacities. Client understands if it seeks to protect itself from claims of loss, damage or injury, it should obtain appropriate insurance.
6. Limitation of Claims, Liability and Remedies. IT IS UNDERSTOOD AND AGREED THAT ELITE’S LIABILITY TO CLIENT OR ANYONE ELSE RELATED TO THE SERVICES, UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY, SHALL NOT EXCEED THE LESSER OF i) THE COST OF THE SERVICES OR ii) THE AMOUNT/RETURN OF THE TOTAL PAID BY CLIENT FOR THE SERVICES; AND UNDER NO CIRCUMSTANCES SHALL ELITE BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR FOR LOSS OR DAMAGE TO THE PROPERTY SUBJECT TO THE SERVICES. THE PRICE QUOTATION FOR THE SERVICES IS CONSIDERATION IN LIMITING ELITE’S LIABILITY. NO ACTION, REGARDLESS OF
FORM, ARISING OUT OF THE SERVICES MAY BE BROUGHT BY CLIENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
7. Intellectual Property: The names, service marks, trademarks, and copyrights of Elite are and shall at all times remain the sole property of Elite and shall not be used by Client. Client shall not take any action that might impair the value or goodwill associated with the Elite, Elite’s mark or the image or reputation of Elite.
8. Force Majeure: Any non-performance or delay in performance by Elite of any of the Services, or in fulfilling any condition, or in meeting any requirement of under the law, shall be excused if, and to the extent that, such non-performance or delay in performance under this Agreement is caused in whole or in part, directly or indirectly by, any act of God, act of any individual(s) or sovereign power such as war, civil commotion, enemy, war, or other hostilities (including rebellion, terrorism, sabotage, vandalism, riot, insurrection or revolution), invasion act of foreign enemy/ies, insurgency activities, prohibition or restrictions from international or domestic political crisis or tension, natural calamity/catastrophe, fire, casualty, flood, earthquake, strike, lockout, utility outage or disruption, epidemic, pandemic, destruction of production facilities, riot, insurrection, government imposed restrictions on travel and/or movement, delays by third party vendors and/or suppliers, or any other cause beyond the reasonable control of Elite.
9. Amendments or Modifications; Entire Agreement. No provision in these T&Cs may be varied or waived except by a writing specifically describing such variance or waiver signed by an authorized representative of Elite. Elite’s acceptance or acknowledgement, even if in writing and signed by Elite, of Client’s order form, purchase request, or any other document pertaining to the Services shall not be deemed an acceptance of any provision of Client’s order form, purchase request, Purchase Order or any other document that conflicts with, adds to or purports to supersede these T&Cs. In the event that terms and conditions set forth in any order form, purchase request, Purchase Order or other documentation provided by Client attempt to add to or conflict with these T&Cs, these T&Cs shall at all times prevail and govern.
10. Governing Law, Dispute Resolution, Venue and Invalidity.
a. This Quote shall be governed by and construed in accordance with the laws of the
State of Illinois without reference to its conflicts of laws principles.
b. EACH PARTY AGREES THAT, TO THE EXTENT PERMISSIBLE BY LAW, ALL
RIGHTS TO A TRIAL BY A JURY OF ANY CLAIM CONCERNING THIS QUOTE ARE ABSOLUTELY AND FOREVER WAIVED. Except for collection by Elite of the amounts due from Client for the Services and any equitable relief in pursing Elite’s rights hereunder, all other disputes concerning the Services shall be settled by arbitration, before one arbitrator, in accordance with the commercial arbitration rules of the American Arbitration Association or ADR Systems then in effect. The arbitrator shall be selected in accordance with such commercial arbitration rules. A party is entitled to initiate an arbitration proceeding if a dispute cannot be resolved amicably within ten (10) business days after the other party has been notified of the existence of the dispute. The arbitrator is authorized to grant injunctive relief and/or specific performance in addition to monetary relief. The arbitrator hereby is instructed to interpret and enforce this Quote in strict accordance with its terms, and in accordance with Illinois law. All arbitration proceedings shall be held in DuPage County, Illinois. The party requesting arbitration shall pay the upfront cost of the arbitrator, with the final or total costs determined or apportioned by the arbitrator as a part of the award.
c. The award of the arbitrator in any arbitration proceeding shall be final and the Parties hereby CONSENT TO THE PERSONAL JURISDICTION AND VENUE OF THE CIRCUIT COURT OF DUPAGE COUNTY TO ENFORCE ANY ARBITRATION DECISION.
d. In the event that any provision of the Quotation, these T&Cs or its applications is held to be invalid, illegal or unenforceable in any respect: (i) the validity, legality or enforceability of any other provisions and applications herein shall not in any way be affected or impaired, and (ii) the Parties agree and affirm that the arbitrator may modify the provision or application held to be invalid, illegal or unenforceable so as to give it the fullest valid, legal and enforceable protection allowed and that such “blue pencil” modification by the arbitrator will not be construed to be a new contract between the Parties.
11. Miscellaneous
a. Except as may be prohibited by the U.S. bankruptcy laws, in the event of any insolvency or inability to pay debts as they become due by a Party hereto, or voluntary or involuntary bankruptcy proceeding by or against a Party hereto, or appointment of a receiver or assignee for the benefit of creditors, the other Party may elect to cancel any unfulfilled obligations hereunder.
b. Any notices required shall be given in writing, via Certified U.S. Mail, at the address of each party listed on the Quotation, set forth in the attachments hereto, or to such other address as either party may substitute by written notice to the other.
c. Client agrees to pay all of Elite’s costs and expenses, including attorney’s fees, if Elite must bring any legal action, proceeding or pleading to enforce its rights hereunder.
d. Client may not assign any Quotations hereunder without the prior written permission of Elite; any attempt to assign any rights, duties, or obligations, that arise under such Quotations without Elite’s permission will be null and void.
e. Notwithstanding any other provision to the contrary, Client indemnifies and agrees to defend and hold Elite and any of its successors and assignees harmless from and against all claims, costs, expenses (including, but not limited to, reasonable attorney’s fees), damages, losses, and liabilities of any nature whatsoever that may be imposed on, incurred by, or asserted against any such indemnified party with respect to the Services, Property, its delivery, ownership, leasing, possession, maintenance, use, operation, or transportation, whether or not other entities are involved.
f. For the avoidance of doubt, no remedy for Elite referred to herein is intended to be exclusive, but each shall be in addition to any other remedy referred to or otherwise available to Elite at law or in equity. No express or implied waiver by Elite of any action or inaction by Client shall constitute a waiver of any of Elite’s rights, and no delay by Elite in enforcing any right or requiring performance of any provision herein by Client shall be a waiver of such right or otherwise effect the right of Elite to enforce such provisions.