Elan Solutions LLC. Sales Terms and Conditions
THE FOLLOWING SALE OF PRODUCTS AND SERVICES (“PRODUCT” OR “PRODUCTS”) PROVIDED BY Elan Solutions LLC. (“Elan”) TO AN ELAN CUSTOMER (“BUYER”) ARE SUBJECT TO ALL OF THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES.
1.) ACCEPTANCE AND CANCELLATION OF ORDERS All purchase orders are subject to acceptance in writing by Elan. Any written acknowledgment or receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by Seller may be cancelled by Buyer only upon written consent of Seller. Elan reserves the right to distribute the sale of Products amongst its customers. All orders are considered non-cancelable and non-returnable (“NCNR”) unless approved in writing by Elan. The Buyer may not cancel or reschedule orders for any Products without Elan’s permission, which permission shall not be unreasonably withheld. However, once orders are shipped, no cancellation or reschedules shall be permitted. Restocking charges will apply on orders cancelled in process on percentage of work completed. Good specifications and availability are subject to change without prior notice.
2.) TERMS OF PAYMENT (a) Buyer shall pay for the goods in full, without offset or deduction, within the time frame and in the manner set forth in the contract. For sales that do not require payment in advance of or upon delivery, if payment is not received by Elan within the period set forth in the contract, Buyer shall pay Elan on demand a late charge of 1% per month of the unpaid balance or the maximum rate of interest allowed by law, whichever is less. Time is of the essence with respect to Buyer’s obligation to pay all invoices, in full in a timely manner.
(b) All checks are accepted subject to collection. Elan may offset against any payment hereunder any amount owed to Elan by Buyer. Whether under this or any other contract between Buyer and Elan. Acceptance of any partial payment shall not constitute waiver of Elan’s right to payment in full of all amounts owed from Buyer to Elan.
(c) Buyer hereby grants to Elan a security interest in the goods-shipped pursuant to this contract including all accessions to and replacements of the goods and the proceeds thereof, to secure the due and punctual payment of the purchase price of the goods and all other amounts owed hereunder. Buyer shall execute and deliver to Elan any additional documents, instructions, financing, statements or amendments that Elan deems necessary or advisable to maintain, continue and perfect the security interest created.
(d) In the event a partial order of Equipment is Delivered to Buyer, Elan may elect to invoice Buyer for the portion of the Equipment actually delivered, and then any Equipment Delivered later, additions, subtractions, taxes and other residual charges will be reconciled and invoiced via a subsequent invoice.
(e) Elan may modify the terms of Buyer’s credit at any time and Elan shall provide at least 10 days’ notice of any such modification.
(f) Elan may apply payments to any of Buyer’s accounts and may apply said payments to the oldest outstanding invoice, plus interest charges, if applicable.
3.) PRICES AND TAXES Orders are billed at the prices in effect at the time of shipment. Elan quoted prices are valid for 24 hours or as otherwise specified in its quote. Notwithstanding this period, Elan may boost prices if Elan’s costs increase or due to other circumstances beyond Elan’s reasonable control. Elan shall provide notice to the customer prior to shipment, giving the Customer the opportunity to revoke the order, which revocation shall be made in writing within 24 hours of such announcement. Prices for Products are exclusive of taxes, impositions and other charges, including sales, use, excise, value-added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent's and broker's fees, bank fees, consular fees, and document fees.
4.) DELIVERY AND TITLE. Unless otherwise specified by Elan in writing, all deliveries by Elan are EXW Elan’s warehouse. Title shall pass to Buyer upon delivery of the Products to Buyer’s carrier or common carrier. Elan’s delivery dates are estimates only and subject to timely receipt of the Products by Elan from our suppliers. Elan is not liable for delays in delivery or for failure to perform due to any causes, including, without limitation, acts of God, acts or omissions of Buyer or civil or military authorities, fires, strikes, epidemics, pandemics, quarantine restriction, flood, earthquakes, riot, war, delays in transportation or inability to obtain necessary labor, materials or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Elan. A delayed delivery of any part of an order does not entitle the Buyer to terminate other deliveries.
Elan reserves the right to make incomplete deliveries and Buyer shall accept delivery and pay for the Products that are delivered.
5.) ACCEPTANCE AND RETURNS OF PRODUCTS Buyer must notify Elan in writing of any damage, shortage, or other discrepancy to Products within 5 days after delivery. After this time period, Buyer is considered to have accepted the Products and may not rescind acceptance. Buyer cannot return Products without a return material authorization (“RMA”) number. Return requests that are not NCNR will only be reviewed if the application is made within 30 days of delivery and acceptance of the product. Returned Products must be in the original manufacturer’s shipping containers or equivalent. (a) Buyer is responsible for all shipping costs for return of the goods to Elan. (b) Any Product approved for return by Elan is subject to a restocking fee. (c) RMA is only valid for 30 days after RMA has been issued to the Buyer.
6.) INTERNATIONAL SHIPMENTS Buyer shall be responsible for all applicable VAT, PST, HST, and/or GST charges along with brokerage fees, which shall be due at the time of delivery.
7.) LIMITED WARRANTY Elan shall transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Such transfer is not a lengthening of any warranty period. Elan warrants the Products will conform to the manufacturer’s specifications. Value-added work performed by Elan on Products will conform to Buyer’s specifications. If Products do not meet manufacturer’s specifications or if value-added work by Elan does not meet Buyer’s specifications, Elan has the option to (1) repair the Products, (2) replace the Products at no cost to Buyer; or (3) refund Buyer’s purchase price. Buyer must return the contended non-conforming Products to Elan, along with acceptable proof of purchase, within 30 days from date of delivery, freight charges prepaid.
The foregoing warranties are Elan’s exclusive warranties, and the goods sold under this agreement are sold “as is” and “with all faults”. Except as otherwise expressly provided herein, seller makes no representation or warranty of any kind, either express or implied, as to any matter whatsoever relating to the goods, including without limitation the design and condition of the goods or their quality, capacity, suitability, construction, performance, merchantability, or fitness for any particular purpose.
8.) LIMITATION OF LIABILITY Within 10 days after receipt of each shipment of goods, Buyer shall have the right to examine and test the goods to determine if there is any damage, defect, or shortage.
Elan IS NOT LIABLE FOR AND BUYER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. BUYER’S RECOVERY FROM Elan FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. BUYER SHALL INDEMNIFY, DEFEND AND HOLD Elan HARMLESS FROM ANY CLAIMS BASED ON; (i) Elan’s COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN Elan, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS.
Products sold by Elan are not designed, intended or authorized for use in life support, life sustaining, human implantable, nuclear facilities, flight control systems, or other
applications in which the failure of such Products could result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (a) Buyer acknowledges that such use or sale is at Buyer's sole risk; (b) Buyer agrees that Elan and the manufacturer of the goods are not liable, in whole or in part, for any claim or damage arising from such use.
9.) IMPORT AND EXPORT CONTROL Certain Products sold by Elan and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Buyer shall not directly or indirectly export or redirect any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or forbidden. Buyer agrees it is their sole responsibility to obtain any license to export, re-export, or import as may be required.
10.) PRODUCT INFORMATION Product information, including information related to a Product’s specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by Elan from its suppliers or other sources. Such information is provided by Elan on an “as is” basis. Elan makes no representation as to the accuracy or completeness of the Product information, and disclaims all representations, warranties and liabilities under any theory with respect to the Product information, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Elan recommends Buyer validate any Product Information before using or proceeding on such information. All Product information is subject to modification without notice. Elan is not responsible for typographical or other errors or omissions in Product information.
11) GENERAL The laws of the State of Florida shall exclusively govern any dispute between Elan and the Buyer without reference to Florida’s conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply. Venue shall be in Broward County, Florida.
Buyer shall not delegate or assign this Agreement without the prior written consent of Elan. Elan or its affiliates may perform the obligations under this Agreement.
This Agreement is binding on successors and assigns. This Agreement can only be altered in writing signed by authorized representatives of both Elan and Buyer.
Elan and Buyer are independent contractors and agree that this Agreement does not establish a joint venture or partnership. Statements or advice (technical or otherwise) if given without charge, are an accommodation to Buyer and Elan has no responsibility or liability for the content or use of such statements or advice. Elan’s failure to object to any document, communication, or act of Buyer will not be deemed a waiver of any of these terms and conditions. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, trademarks and/or user licenses. Buyer and Elan shall comply with all applicable laws and regulations.
