ELIO TERMS AND CONDITIONS (Quotation/Confirmation)
1. Expiration of Quotation. Any quotation by ITC Incorporated under its corporate name or the elio trade name (collectively hereafter referred to as the “Company”) will be held open for acceptance for a period of 60 days from the date of the quotation; however, the Company reserves the right to correct clerical and typographical errors, including price and quantity numbers, within 15 days after acceptance of an order based on the quotation.
2. Acceptance. This order is subject to the following terms and conditions. Terms stated by the Buyer in any other communication, prior or subsequent hereto, shall NOT be binding on the Company if different from or in addition to any of the provisions hereof or the quotation, unless expressly agreed to in writing by the Company. Acceptance by the Buyer of this order, orally or in writing, or of any goods provided hereunder or payment therefore, shall constitute acceptance of these terms and conditions.
3. Payment. Payment in cash is due upon delivery unless otherwise agreed in writing. All payments not made by the due date shall bear interest at a rate of 1½% per month. If the Buyer fails to fulfill the terms of payment, or the Company has any doubt at any time as to the Buyer’s financial responsibility, the Company may either decline to make further deliveries except upon receipt of cash or other satisfactory security, or may terminate the entire agreement. The Buyer shall reimburse the Company for any costs of collection incurred in collecting any past due sums, including attorneys’ fees. To secure the Buyer’s obligation to pay the Company the purchase price of the goods, the Buyer grants to the Company a security interest in the goods and any proceeds thereof, with full rights as a secured party under the Uniform Commercial Code, and the Buyer appoints the Company as its attorney in fact to sign any financing statements evidencing such security interest on behalf of the Buyer. In the event that any additional costs are incurred by ITC as result of actions or information supplied by the customer including without limitation providing the wrong address information or insufficient funds being available upon presentment and demand, the additional costs incurred by ITC plus a surcharge of $40.00 will be charged the customer.
4. Shipment and Risk of Loss. The Buyer shall take delivery of the goods F.O.B. the Company’s facility, unless otherwise agreed in writing. Method and route of shipment are at the Company’s discretion, unless the Buyer supplies instructions otherwise. All expenses and risks of loss or any damages incurred in the transportation of the goods, including any risks of loss in loading or unloading, shall be borne solely by the Buyer, unless otherwise specified. All claims for loss, damage or delay against the carrier must be made by the Buyer. The Buyer shall accept partial delivery of any order and any defect related to said partial delivery or failure to make any subsequent partial delivery shall be severable and not constitute a breach of the entire agreement. Freight shall be shipped on the Company’s shipper account unless otherwise agreed to between the Company and Buyer. To qualify for shipping collect (against Buyer’s account number), the customer must be in good standing and have reached a minimum of US$10,000 in annual sales with the Company. If freight for a collect account is invoiced back to the Company for any reason, the Company reserves the right to charge Buyer all the associated freight along with a fee of $50 for processing. For Buyers with credit card payment terms, freight collect shipments from the Company will not be allowed. If there is any discrepancy in count or item number of received goods as compared to the packing list, the Buyer shall notify ITC within 30 days of the date of the shipment, or the goods are assumed to be included as stated, and the invoice is payable as sent.
5. Delays and Damages. The Company shall attempt to make deliveries in accordance with its quotation or production order, but if for any reason the Company fails to make such deliveries or to make them within the time stated, or cancels any order, ITC shall not be liable for any loss or damage resulting from any such failure or delay in delivery, or from any such cancellation or for loss of use or loss of profits, or for any other consequential, incidental or special damages on account of delay in delivery.
6. Rejection of Non-Conforming Goods. The Buyer must notify the Company in writing of any rejection of goods deemed non-conforming within 30 days of delivery. The notification shall identify each alleged non-conforming of the goods and describe that portion of the shipment being rejected. If the Buyer shall fail to give such notice or if the Buyer uses the goods in any manner inconsistent with the rights of the Company, the goods shall be deemed to conform to the terms hereof in all respects and the Buyer shall be bound to accept and pay for the goods in accordance with these terms.
7. Cancellation or Modification. Any order accepted by the Company may be canceled or modified by the Buyer only upon the written approval of the Company. The Buyer shall reimburse the Company for all expenses incurred by the Company in connection with such order, including without limitation for engineering drawings and materials. Custom parts specifically designed and/or manufactured for the Buyer are subject to notification in writing to the Company by the Buyer in the event of any one of the following occurrences: 1) the termination of any program that would affect the custom part purchases, 2) any engineering change pertaining to the custom part, and 3) any decision that would cause the Buyer to cease purchases of the custom part. In any one of these occurrences, other than non-performance by the Company, the Buyer agrees to pay the Company for inventory held by the Company.
8. Limited Warranty and Limitation of Remedy and Damages. The Company warrants the goods to be free from defects in material or workmanship under normal operating conditions from the date of delivery, regardless of the date of installation or first use. Any claim under this warranty shall be deemed waived unless the Company is notified within 30 days of the discovery of the defect and given the opportunity to inspect such defect, and, if necessary, the goods are returned to the Company. Any claim with regards to the LOOK backlit mirrors must be reported within five days of receiving the shipment. Photos must be submitted with all backlit mirror claims and no claims will be accepted for mirrors broken during installation. The Company’s obligation under this warranty shall be LIMITED, at its option, to the modification, repair or replacement of the goods by the Company. In no event shall the Company be liable for consequential, incidental or special damages, loss of profit or production, or for transportation, installation or other costs associated with the goods.
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This warranty shall not apply to any goods which have been subject to abuse, accident, alteration or misuse.
9. Limitation of Liability. The Company’s liability on any claim of any kind, including negligence, strict or product liability, or breach of warranty or contract, for any loss or damage arising out of or connected with this contract, or the performance or breach thereof, or the manufacture, sale or use of the goods furnished hereunder shall in no case exceed the price allocable to such goods which gives rise to the claim, and shall not include any liability for any consequential, incidental or special damages.
10. Reliance Upon Buyer’s Information. In the preparation of the quotation and the goods, the Company has relied on information supplied by the Buyer. In the event such information is inaccurate, the Company shall not be liable for any claim resulting from such inaccurate information, including negligence, strict or product liability, or breach of warranty or contract, with respect to the goods, the performance of breach of this contract, or any defects of design, material or workmanship. Product built to Buyer’s specifications that is determined subsequently not to fit an application will be Buyer’s responsibility.
11. Indemnification. Buyer shall defend, indemnify and hold harmless the Company and its agents from any claims, damages or expenses including attorneys’ fees, arising or alleged to arise from any asserted deficiencies or defects in the goods caused by any alteration thereof with or without the Company’s consent made by the Buyer, the improper handling, storage or installation by the Buyer, or any action taken by the Buyer which voids the ETL and/or UL certification.
12. Non-Performance. Neither party shall be liable to the other for failure to perform its obligation in whole or in part when performance is prevented by flood, drought, fire or any other casualty, war, riot, insurrection, acts of God, restrictions or interference by any government or governmental agency, strike, labor action, or any similar cause beyond the control of the party failing to perform, for the period during which such cause of failure exists.
13. Limitation Period for Bringing Action. No action may be commenced to enforce this contract or for any breach hereof, or for any defect or deficiency of the goods to be delivered hereunder, whether on warranty, contract, negligence, or strict products liability, unless such action is brought within 12 months after accrual of such cause of action.
14. Choice of Law and Forum. This contract shall be governed by the laws of the State of Michigan, notwithstanding any state’s choice of law rules to the contrary. The Buyer consents and agrees that any action brought to enforce this contract, or for any breach hereof, or for any defect or deficiency of the goods to be delivered hereunder, whether on warranty, contract, negligence, or strict products liability, shall be brought solely in a state or federal court sitting in the State of Michigan, and the Buyer consents and submits to the jurisdiction of such court.
GENERAL PRODUCT LIMITED WARRANTY
ITC Incorporated under its corporate name or the elio trade name (collectively hereafter referred to as the “Company”) warrants, to the original purchaser, that the product will be free of defects in materials and/or workmanship for the period of time set forth herein. This warranty period will begin from the original date of purchase of the product. Except as set forth below, this general product limited warranty will extend for three years. All assist handles will have a three year warranty period, provided that crazing caused by chemical attack from a contaminant is not covered by any warranty. Power supplies also have a 3 year warranty. All LOOK backlit mirrors will carry a three year warranty which includes the mirror, light engine and power supply. LED replacement bulbs including but not limited to MR16 & MR11 fixtures are warranted for one year when used without an ITC power supply. All products within the Compel series will have a five year warranty.
MAXIMUM LIABILITY The Company’s liability to repair or replace a damaged item shall be limited to the original purchaser of the item, or in the event product is purchased by an authorized distributor, limited warranty may be transferred to subsequent purchasers as long as parts are resold in new condition, at the original invoice price of the damaged unit. Labor and freight will not be included in
INSPECTION. The Company reserves the right to review the damaged product and the site where the damage occurred. The Company may require the purchaser to ship the item to the Company for inspection. The damaged item must remain available for inspection until the claim is finalized. In the event the Company requests to inspect the product, it agrees to dispatch its findings pertaining to the alleged defective product within 45 days of receiving the product. Whenever claims are settled, the Company reserves the right to be subrogated under any existing insurance policies the purchaser may have.
EVENTS THAT VOID WARRANTY All above warranties are null and void if any one or more of the following events occurs: (a) the item is not provided to ITC for inspection upon the Company’s request; (b) the Company determines that the item has been improperly installed, altered in any way or tampered with; (c) the Company determines that the item was not used under normal operating conditions or in accordance with labels or instructions for the item including, (d) the Company determines the product was not properly maintained, and/or; e) the Company determines that an unauthorized repair, modification, disassembly, or other changes to the product created the alleged defect. In addition to the foregoing, this Warranty does not protect against damage to the product when the Company determines, in its sole discretion, that the damage resulted from acts of God such as lightning, flood, earthquake, war, vandalism, theft, normal-use wear and tear, terrorism, strikes, and labor stoppages. This warranty specifically excludes damage, deterioration or discoloration caused by sunlight or similar ultraviolet rays and/or wavelengths and/or dents, holes or scratches to the unit caused by stones, rocks and/or debris.
EXCLUSIVE REMEDY This Warranty contains the sole warranty of the Company with respect to the product and is given in lieu of all other warranties. There are no other warranties, express or implied, including implied warranties of merchantability or fitness for a particular purpose and any implied warranties that cannot be waived and/or excluded are hereby limited in duration to the terms of this Warranty.
LIMITATION ON LIABILITY In no event shall the Company or any affiliate of the Company be liable for direct, indirect, special, incidental, consequential, or multiple damages arising out of the use of the item, regardless of the legal theory on which such claim is based, even if the Company has been advised of the possibility of such damage. Consequential damages shall include, but are not limited to loss of profits, loss of savings or revenue.
1 Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not be applicable.
ITC RETURN POLICY
1) The Company will accept absolutely no returns for product found defective at the distributor or returned by a dealer or customer as a warranty claim without a Return Materials Authorization (RMA). Customers should contact our Warranty Department (Phone 616-396-1355 or Fax 616-394-5881 or Email: firstname.lastname@example.org) to obtain a Return Materials Authorization (RMA) prior to sending product back to the Company
2) All correspondence and credits pertaining to the alleged non-conforming product will reference the RMA number. If your company uses its own return goods numbering system, the Company will make every effort to include both reference numbers on the Company ‘s RMA. All returns must be accommodated by our RMA number or they will not be processed. If product is received without our RMA number written on the outside of the carton, it will be refused upon receipt. All customers have 90 days to return product or the RMA will be voided.
3) The Company will reimburse a customer for credit on returned parts that are determined defective by the Company. Credit is entered based on the current Distributor quoted price for said part. The Company will not credit customers for unauthorized Dealer mark-ups or customer mark-up fees.
4) The Company will not issue credit for parts that were damaged or inappropriately handled by customer. Alterations to the Company’s part will invalidate the warranty.
5) To preserve your claim, please securely package all parts before shipping to the Company. All claims are reviewed by the Company’s Quality Department to determine the validity of the claim. Poorly packaged returns may limit or void your claim.
6) Invalid returned parts (non-Company parts) shall be held for 15 days maximum, then destroyed or returned at customer’s expense, the Company will notify customer accordingly. Repeated submission of invalid parts will warrant the Company charging the offending customer a handling fee. If a part is damaged or lost during transit, customer is responsible for directing a claim to the courier service, not the Company.
7) The Company is not responsible for freight charges of parts that the customer has ordered in error or for parts that are found not defective.
8)A 25% or $25.00 (whichever is greater) restocking fee will be invoiced or deducted from the return credit for parts that are not defective or parts ordered in error.
9) A 50% restocking fee of the purchased price will be issued on LOOK backlit mirrors or any part being returned that was approved for alternation by ITC/elio LED Lighting on a purchase order that needs to be reworked for the given part to reenter inventory for resale. All custom parts approved for alteration at time of sale must be returned within 15 days after order is received to qualify for a return. After this time period has expired, parts are non-returnable.
10) If a scrap credit is authorized by the Company, we will issue an RGA number and apply the credit to the customer’s account without inspecting the product or having it returned to the Company.
For replacement parts, please contact your dealer or elio representative. Elio is a trademark of ITC Incorporated.