TERMS AND CONDITIONS OF SALE
1. General: The term “System” shall mean the products, equipment, and/or services as provided in the agreement. “Agreement” shall refer to an Alliance Automation quotation or any Customer order form accepted by Alliance Automation that incorporates these Standard Terms and Conditions.
Terms and Conditions of Sale apply to all Alliance Automation quotations and proposals. Unless accepted in writing by an Authorized Alliance Automation Officer, Alliance Automation shall not be bound by any provisions on Customer’s orders which are at variance with or are in addition to the terms, or any modification of this agreement. The quotations and proposals do not constitute a final written offer; Customer’s acceptance of an Alliance Automation proposal or any related Customer order are subject to Alliance Automation’ final approval.
2. Shipment; Additional Charges: Unless specifically agreed otherwise in writing: (i) prices are F.O.B. Alliance Automation’s Grand Blanc, MI Facility; (ii) title to the System and all risk of loss and damage shall pass to Customer upon delivery to a common carrier at the F.O.B. point; and (iii) Alliance Automation shall select the method of shipment and the carrier, and shall handle insurance at Customer’s expense. Customer will reimburse Alliance Automation for all duties, levies, or other government fees or taxes now in force or enacted in the future.
3. Payment Terms; Security Interest:
A. Unless otherwise specifically stated in this quotation, the unpaid balance of the purchase price shall become immediately due and payable at the time the equipment included in this quotation, or any portion of it, is placed in service or used in any way other than in connection with its installation or testing.
B. Payment terms shall be as per a signed Alliance Automation Purchase Agreement. Interest shall accrue on overdue balances at the rate of 2% per month.
C. Alliance Automation shall retain a security interest in the System until the entire System purchase price and all additional charges are fully paid. Customer shall deliver to Alliance Automation, on request, all properly executed documents Alliance Automation deems necessary to evidence this security interest.
4. Part Samples and Specifications: Where this Agreement is based on part samples and/or equipment specifications provided by the Customer, the Customer will be responsible for additional costs and delays incurred by Alliance Automation to accommodate part changes, part revisions or part defects which are not identified in the samples or specifications provided. In addition the same will hold true for delays in receiving actual production parts and/or approved part drawings from the Customer.
5. Installation and Testing:
A. Customer shall promptly notify Alliance Automation of the arrival of the System and take all appropriate action to protect it from damage.
B. Installation by Alliance Automation shall only be provided if specified. Regardless of whether Alliance Automation installation services are included as part of the System, Customer is solely responsible for preparing the System site, maintaining a suitable System environment, providing any required cabling, air conditioning, compressed air, and power in accordance with Alliance Automation’ specifications, and for supplying labor and equipment for the movement of the System to its final location.
C. If installation of the System by Alliance Automation is delayed at the request of or due to acts or omissions of Customer, Alliance Automation’s personnel may leave the site and return at a later agreed upon date. Customer shall pay all additional expenses incurred by Alliance Automation as a result of the delay at Alliance Automation’s then prevailing rates.
D. Following completion of the Alliance Automation installation, Alliance Automation shall demonstrate that the System can successfully perform according to criteria agreed to and documented in the agreement. At that time, the System shall be deemed acceptable by Customer for all purposes. If Customer does not order Alliance Automation installation services, then Customer acceptance shall be deemed to occur at the time of completion by Alliance Automation of its final acceptance factory test at the Alliance Automation facility.
E. If the system is used in regular production by Customer, it shall be deemed to have been accepted by Customer.
6. Training: Training by Alliance Automation shall be included with the System only if specified as part of the System configuration in the Agreement.
7. Ownership of Industrial and Intellectual Property: The System and its documentation has been developed by Alliance Automation and represents an investment in industrial and intellectual property. No ownership of any patent, copyright, trade secret, technical data or other industrial or intellectual property is transferred to Customer hereunder. No System sale is to be construed as the grant by Alliance Automation to the Customer of an implied license to copy or reconstruct anything falling within the scope of patents, copyrights, trade secrets, technical data, or other industrial property of Alliance Automation or third parties.
A. Alliance Automation warrants the System, exclusive of consumable parts, to be free from defects in material and workmanship for the period specified. The System warranty shall become effective upon the earlier of: (i) shipment by Alliance Automation to Customer’s facility where installation is not specified as part of the Agreement; or (ii) the completion of the installation by Alliance Automation at the Customer’s facility with the Customer’s system sign off. Any delay in completion of installation caused by Customer not having the facility ready on the agreed date shall reduce the warranty period by a period equivalent to such delay. Unless otherwise specified in the Agreement, this warranty shall be for a period of one (1) year, which will be supplied with the system.
B. Alliance Automation’s obligation under this warranty shall be limited to the repair or replacement at Alliance Automation’s election of parts determined by Alliance Automation to be defective or nonconforming. All replaced parts become the property of Alliance Automation. Replacements shall be new or refurbished to the equivalent of new parts.
C. The System warranty is expressly conditioned upon and may be voided by Alliance Automation in the event Customer: (i) fails to perform applicable preventative maintenance of the System as recommended by Alliance Automation; or (ii) fails to maintain proper environment for operation of the System in accordance with Alliance Automation’s recommendations; or (iii) performs any modification to the System not authorized by Alliance Automation in writing; or, (iv) improperly installs or damages the System; or (v) connects to the System any other device not approved, in advance, by Alliance Automation; or (vi) uses parts which are defective or not as to original specifications; or (vii) uses or operates the system or components of the system for purposes other than its intended use or application; or (viii) fails to operate system in accordance with operation manuals and instructions; or (ix) has any Past Due Payments owed to Alliance Automation.
D. Where System productivity figures, or payback periods have been stated or implied by Alliance Automation orally or in writing. Customer understands that they are not representations or warranties by Alliance Automation but are only good faith estimates based on field and application data available to Alliance Automation at the time.
E. Alliance Automation warrants that it has the right to sell the System.
F. The foregoing warranties are in lieu of all other warranties and there are no other warranties, expressed or implied, including warranties of merchantability and fitness for a particular purpose. Alliance Automation expressly disclaims any liability of any delay, consequential or incidental damage.
9. Patents and Copyrights – Indemnification:
Alliance Automation shall indemnify and hold Customer harmless from any valid claims and suits for patent or copyright infringement or brought against the Customer wherein the System is alleged to infringe a patent or copyright, or wherein its normal use or its use as recommended by Alliance Automation to the Customer is alleged to constitute the infringement. No indemnity is provided against any claim or suit for patent or copyright infringement wherein any System is only an element in a combination with other products not furnished by Alliance Automation and wherein the combination is alleged to constitute the infringement.
A. If any System, which is subject to this indemnity, is determined to infringe a patent issued to, or a copyright registered by, or either owned by or licensed to any third party, Alliance Automation shall have the option to modify that System to avoid such infringement. If, in Alliance Automation’s sole opinion, such modification cannot practicably be accomplished to avoid such infringement, Alliance Automation shall have the option to terminate the Purchase Agreement without liability on the part of Alliance Automation to Customer. In such event, Alliance Automation will agree to accept return of the System and to refund to Customer the full price paid for the System less an amount for depreciation of the System, such depreciation to be calculated on a straight line basis over five (5) years.
B. Customer shall promptly notify Alliance Automation in writing of any third party claim alleging any patent or copyright infringement. Alliance Automation shall have the right in its sole discretion to defend against or to settle any such claim at Alliance Automation’s expense. If Customer shall also elect to be represented by its chosen counsel, Customer shall pay the fees and expense of such counsel. Nothing herein, express or implied, shall be interpreted or construed to create any obligation on Alliance Automation to pay Customer, or others, any damages, consequential or otherwise other than set forth above.
10. Limitation of Liability/Actions:
A. The remedies set forth in Section 8 (Warranty) and Section 9 (Patents and Copyrights) are in lieu of all other remedies, arising out of or in connection with the use of operation of the System. Alliance Automation’s liability for all damages, including but not limited to liability for patent and copyright infringement, shall not exceed the lesser of the direct damages or the charges paid to Alliance Automation by Customer for the particular system. Alliance Automation shall not be liable for any lost profits, or for any claim or demand against Customer by any third party, except as specified in these Standard Terms and Conditions. In no event shall Alliance Automation be liable for consequential damages even if Alliance Automation has been advised of the possibility of such damages.
B. In no event shall Alliance Automation be liable for damages of any kind or nature resulting from the design or operation of equipment or software not furnished by Alliance Automation, from improper or negligent use or operation of the System, or from a System altered or repaired by personnel other than those in the employ of Alliance Automation or authorized in writing by Alliance Automation to repair the System.
C. Alliance Automation shall not be liable for any loss or injury to persons or property (including the System installed) caused in whole or in part by (i) acts or omissions of Customer, its employees, contractors, or suppliers; or (ii) the failure/malfunction of any tools, equipment, software, facilities or devices not furnished by Alliance Automation.
D. The commencement of any action or proceeding on any claim regarding the System, its design or operation or any defect therein, latent or otherwise, must be brought by Customer within one (1) year of delivery of the System, or any part thereof, to Customer.
11. Premature Termination:
A. Alliance Automation may, at its election, terminate the Agreement immediately and/or cancel any unfilled portion of it by written notice to Customer if:
1) Customer becomes bankrupt or insolvent, or make a proposal, or avails itself of the provisions of any bankruptcy act, or if a receiver is appointed to direct the business of Customer, or if Customer sells or assigns a majority of its assets or merges with another firm, or entity so that the resulting entity designated to purchase the System has a lesser net worth or diminished credit worthiness.
2) Customer has committed a material breach of any of the Terms and Conditions and fails to cure such breach to Alliance Automation’s satisfaction.
B. If Alliance Automation terminates the Agreement, Alliance Automation may, without limiting or waiving any other remedies available to it, offset in whole or in part its resulting damages by retaining Customer’s initial payment or deposit.
12. Force Major; Delays: Alliance Automation shall not be liable for delay, non-delivery, or the performance of any Term of Condition of the Agreement due to causes beyond Alliance Automation’ reasonable control, including but not limited to acts of God, natural or human-caused disasters such as flood, fire, war (declared or undeclared), civil disturbance, actions of or failures by third parties including suppliers, labor disputes, compliance with government regulations or other authority, transit interruptions, or the inability of freight forwarders or carriers to complete shipments in accordance with Alliance Automation instructions. Any delay in delivery may cause extra expense to Alliance Automation which, at Alliance Automation’ option, may result in additional charges or an increase in the System purchase price.
13. Customer Indemnification of Alliance Automation: Customer shall indemnify and hold Alliance Automation harmless from and against any and all losses, claims, costs, expenses, damages and liabilities, including reasonable attorney’s fees, which Alliance Automation may suffer or be required to pay, arising out of injury (or death) to persons, or damage to property, resulting from or pertaining to the use or operation of the System whether or not occasioned by the negligence or misconduct of Customer, employees independent contractors or invitees.
A. The Agreement shall be governed and construed in accordance with the Laws of the State of Michigan. The parties agree that the courts of the State of Michigan will have exclusive jurisdiction to determine all disputes and claims arising between the parties.
B. Sole jurisdiction and venue of any and all claims and lawsuits relating to the Agreement or these Terms and Conditions of Sale shall reside in Michigan.
C. This Agreement, including all attachments, shall constitute the entire understanding between the parties with respect to the subject matter and shall supersede all previous proposals of sale, representations, and agreements, either oral or written, between the parties with respect to the subject matter.
D. If any of the provisions of the Agreement are deemed or adjudged invalid under any applicable statute or rule of law, those provisions shall be deemed omitted and all other terms and provisions of the Agreement shall continue in full force and effect.
E. The Agreement shall not be assigned by Customer. Any attempt by Customer to assign this Agreement shall be deemed void.
F. The waiver on any one occasion by either party of any breach by the other party shall not be deemed a waiver of any subsequent breach of the Agreement.
G. Should the Customer and Alliance Automation arrive at a point of irreconcilable difference, both parties agree to binding arbitration according to Michigan arbitration rules, with the arbitrator able to award the cost of arbitration. Such arbitration shall be conducted in the City of Grand Blanc, Michigan in accordance with the applicable provisions of the Arbitration Act. The arbitrator is not empowered to change the terms of the Agreement.
H. The parties hereto have requested and agreed that this agreement shall be expressed in the English language only. Cette convention a ete redigee en anglais a la demande specifique des parties.