THE TERMS AND CONDITIONS BELOW CONSTITUTE THE AGREEMENT BETWEEN THE PARTIES
1. Offer and Acceptance
a) This document (“Alltech's Terms”) constitutes Alltech's acknowledgement of the purchase order or other form of offer (“Order”) issued by you (“Buyer”) for the purchase of Alltech Transmission products described in the Order (“Product”). By placing an Order, Buyer makes an offer to purchase the Product pursuant to Alltech's Terms, and no other terms. Alltech's acceptance of, and commencement of performance pursuant to an Order is expressly conditioned on, and constitutes, Buyer’s assent to all of the terms and conditions in Alltech’s Terms. The terms and conditions set forth in Alltech’s Terms will constitute the entire agreement relating to the purchase of the Products with respect to such Order, Buyer shall be deemed to have accepted all of Alltech’s Terms, and any different or additional terms in the Order are rejected. Unless otherwise specified in this or some other document signed by Alltech, the terms and conditions of sale set forth in the Alltech’s Terms apply to all Product sold or provided to Buyer by Alltech.
b) Any terms in the Order which purport to reject, amend or alter some or all of Alltech’s Terms, by virtue of standard form language or otherwise, shall not be sufficient objection. Buyer shall be required to set forth each objection to Alltech's Terms in a separate writing signed and dated by Buyer and delivered to Alltech prior to Alltech's shipment of the Products. Alltech’s failure to object to provisions in the Order or any purchase order or other communication from Buyer (including, without limitation, penalty clauses or warranties of any kind), shall not constitute a waiver by Alltech of Alltech’s Terms, nor an acceptance by Alltech of any such provisions. Any terms in the Order or any other documents which are different from or in addition to Alltech’s Terms are rejected unless specifically accepted by Alltech in a separate document signed by both Buyer and Alltech, regardless of whether such other terms would materially alter these terms. No course of dealing, custom or usage, which is contrary to Alltech’s Terms shall apply.
c) Each Order shall specify (i) the amount of the purchased Products and the location to which the ordered Products are to be shipped and (ii) the requested ship date. Alltech reserves the right to correct any typographical or clerical errors in prices, specifications, quotations, or acknowledgments.
d) The Agreement constitutes the entire agreement of the parties, and supersedes all prior written or oral representations made by the parties with respect to the subjects addressed in this Agreement. The parties do not intend that their Agreement shall create a right of enforcement in any third party and, in fact, the parties expressly intend that there be no third parties with standing to enforce any provision of the parties’ Agreement. In the event Buyer obtains funding from a third party, Buyer agrees that Buyer shall have no rights as a third-party beneficiary in any contract between Alltech and that third-party.
2. Prices, Shipment, Delivery, and Inspection
a) Prices are based on U.S. dollars and are F.O.B. point of shipment. If no price is included in the Order, the Price shall be the price set out in Alltech's published price list in force as of the date of the Order, as may be amended from time to time. Prices do not include applicable freight or delivery charges, fuel surcharges, insurance, customs, duties, fees or taxes (such as present or future sales, excise, use, ad valorem) or any export or import duties. Those charges may be prepaid by Alltech and added to Buyer’s invoice. If Buyer provides no carrier, routing or packaging instructions, Alltech shall have sole discretion as to mode, routing and/or packaging of shipment.
b) The Products subject to this sale shall be limited to those described in the Alltech Invoice accompanying the Product and/or shipment.
c) Sales Tax will be charged on all shipments unless a current exemption certificate is on file with Alltech.
d) Risk of loss or damage to the Product shall pass from Alltech to Buyer upon delivery to a carrier at point of shipment.
e) Any shipment, delivery, or performance date stated in the Order, Alltech Invoice or other contract document is approximate only and does not constitute any guarantee of shipment, delivery, or performance on any particular date.
f) Buyer shall inspect and accept conforming Product or reject nonconforming Product delivered by or for Alltech upon delivery to Buyer’s facility. All Product delivered shall be conclusively deemed accepted and to conform to contract requirements unless rejection is made or specific objection or notice of nonconformity is given in writing to Alltech upon delivery.
g) On receipt of notification of rejection, Alltech will arrange to receive back the Product for shipment and return. Alltech may have an agent inspect the Product for nonconformity, including inspection made on return to Alltech’s point of shipment. If confirmed as nonconforming, Alltech may thereafter ship conforming Product following the notice of rejection, unless Buyer earlier notifies Alltech to forego this shipment.
h) The Product subject to this sale, and any related technology or software, which is exported from the United States, is done in accordance with the Export Administration Regulations. Buyer diversion, export or re-export or other transfer is at Buyer’s own expense; and if contrary to applicable United States’ laws, is expressly prohibited and at Buyer’s own risk.
i) Buyer shall ensure that Products are not resold to members of the general public if Products are for Professional and/or Commercial Use Only.
3. Payments, Title and Security Interests
a) Payment shall be due as stated on the Alltech Invoice for the Product. All payments shall be made in U.S dollars. All payments by Buyer shall be without deductions for back charges, set-offs, other accounts between Alltech and Buyer and the like, which shall be settled independently of the payment of the Invoice, unless expressly allowed under an applicable Alltech Credit Memo or alternate written approval; provided, however, that Alltech reserves the right of set-off against Buyer and any affiliated entities thereof. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made upon receipt of the applicable shipment by Buyer.
b) Should Buyer delay payment beyond the date it is due, interest and/or service charges may be charged on the unpaid balance at the highest rate allowable by law. All dishonored checks will be assessed a service charge at the highest rate allowed by law. Alltech expressly reserves the right to modify payment terms, credit terms and/or limits, restrict delivery and/or place accounts on C.O.D. or cash-only status at any time.
c) Notwithstanding that risk of loss passes to Buyer upon shipment, Alltech shall retain and Buyer hereby grants to Alltech a security interest in the Product and any proceeds therein until payment in full is received by Alltech. At the request of Alltech, Buyer shall sign all financing statements and other documents required to attach, perfect, or otherwise protect such security interest.
d) Upon default by Buyer of the payment terms, or any other violation of the Alltech Terms, Alltech may exercise any or all of the following remedies with respect to the Product and/or purchases: (i) replevin or seizure by judicial process or otherwise; (ii) acceleration of remaining payments so that they are immediately due; (iii) cancellation, refusal to enter into or perform any Order; (iv) damages for any unpaid portions of the sales price, loss or for consequential or incidental damages; (v) indemnification from Buyer from and against loss, damages and expenses; and (v) interest, attorneys’ fees and costs. This list of remedies is not exclusive or exhaustive and shall be cumulative and in addition to any other remedies available at law.
Cancellation or suspension of the Order after acceptance by Alltech may be made only on terms which will compensate Alltech for loss due to the cancellation. Prior to shipment, Buyer may cancel by giving written notice of cancellation to Alltech. Buyer may cancel after shipment only if Buyer pays restocking, shipping and handling charges as reasonably determined by Alltech, including but not limited to those described in the Alltech’s Product Return Policy herein. b)Notwithstanding anything contained herein to the contrary, Alltech may reject in writing any Order submitted by Buyer if Alltech, in its sole discretion, determines that it cannot meet the quantity of purchased Products to be delivered or the requested shipment date specified in such Order.
5. Product Return Policy Only applies to Shipped Custom Built Units. a) Product returned by Buyer to Alltech within 30 days of Invoice date will be accepted for full credit to the Buyer, subject to these Alltech Terms, including Section 8 herein; however, a 35% restocking fee may be charged by Alltech to Buyer. Product may not be returned by Buyer to Alltech after 30 days of Invoice date.
b) Product must be returned in original packaging, and Buyer must include a copy of the Invoice with any return.
c) Buyer is responsible for all freight associated with returning Products to Alltech. Risk of loss or damage to Product shall pass from Buyer to Alltech upon physical receipt by Alltech.
d) Unused “Kit Components”, electrical components and special order items are not eligible for return.
e) Any and all Product claimed defective must include a written explanation of how the Product was stored, maintained, installed and/or operated, as further described in Section 8 herein.
f) If, in Alltech’s judgment, a returned Product is not defective or not shipped in error, and a Alltech credit is issued, Alltech may apply a service charge of 35% of the purchase price. If credit is not in order or issued, Buyer will be so notified.
6. Product Design
a) Buyer acknowledges that changes and improvements in the design and specifications of Product may be made from time to time by the original manufacturers of the Product, and Alltech (i) may substitute such Product for the Order and (ii) has no obligation to provide notice thereof to Buyer.
b) The supply of Product hereunder shall not cause, vest or establish any right or license in Buyer under any patent or patent application, trademark, copyright or other intellectual property or trade secret now or hereafter owned or controlled by Alltech. Irrespective of whether the Product manufactured or supplied hereunder is made to Buyer's drawings or designs, Alltech shall be under no liability whatsoever for patent infringement.
a)Alltech shall not be liable for loss, damages, or nonperformance resulting from force majeure, including but not limited to strikes, labor disturbances, material shortages, non-manufacturing conditions, delays or failures of carriers or communications, epidemics, fire, flood, storms, accident, riot, war and invasion, governmental requisition or priorities, acts of God, or other causes beyond Alltech’s reasonable control.
b) Time is not of the essence with respect to any times or dates. However, any dates for payments from Buyer to Alltech and Product Returns noted herein are of the essence.
8. Warranty and Remedies
a) Alltech is primarily a distributor of products manufactured by other companies, and generally does not design, manufacturer, alter, modify, test or inspect the Products hereunder. Alltech shall endeavor to provide the full manufacturer warranty for the Products available to Buyer, as applicable. All express or implied warranties are limited to those expressly provided by such original manufacturer, remanufacturer, customer, dealer, or jobber of the Product supplied hereunder (“Third Party”); and Alltech makes no warranty or other duty of its own on any Product, including those warranted by the Third Party, unless it delivers to Buyer a separate written certificate specifically warranting the Product. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED WARRANTIES AND ALLTECH EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCT, EXCEPT FOR WARRANTY OF TITLE.
b) Alltech and the Third Parties do not warrant or make any representations concerning Product when the Product is not installed and/or used in strict accordance with good installation and maintenance practices in the automotive industry. Alltech and the Third Parties do not warrant Product that has been altered; improperly installed, maintained or repaired; combined with non-Alltech products; contaminated with oil or grease; damaged as a result of normal cosmetic or mechanical wear and tear, accident or lack of reasonable and proper protection during storage, overheating, or damaged by accident, negligence, misuse, race or off-road use or any other unauthorized use. Alltech shall have no liability for breach of warranty claims based on allegations of defective design or negligent manufacture or testing, patent or infringement claims, liability for any special, punitive, incidental, liquidated or consequential damages, including but not limited to loss of profits, damages to other parts or equipment, cost of capital or interest, any claim for labor charges incurred in diagnosing or replacing a defective Product, towing charges, telephone calls, unauthorized repairs, or injury to person or property. If Alltech, without separate compensation therefore, furnishes Buyer with advice or other assistance concerning any Product or equipment in which the Product may be installed, the furnishing of such advice or assistance will not subject Alltech to any liability whether in contract, tort (including negligence and strict liability) or otherwise.
c) As the exclusive remedy, in accordance with the Alltech Terms and provided such Product is deemed by Alltech to be defective, Alltech shall, at its sole option (i) repair or replace the defective Product or component(s) thereof; (ii) provide Buyer with a credit on its account in an amount equal to the original purchase Price of the defective Product; and/or (iii) require that Buyer tender any such claims to the Third Party of the Product, upon which Alltech may endeavor to assist Buyer in resolution. Alltech will accept warranty claims only from the Buyer that purchased the Product directly from Alltech, and this is non-transferable or assignable to any resale of Product thereafter. All warranty claims must include a return to Alltech of the allegedly defective Product, and shipped F.O.B. Alltech’s receiving dock, unless otherwise instructed. Alltech reserves the right to examine all returned Product to determine whether or not the return qualifies for the exclusive remedy set forth in these Alltech Terms. No benefits or remedies are available under this limited warranty while the Invoice for the Product remains outstanding.
d) In any action brought by Buyer against Alltech, regardless of the form or forum, Alltech shall not be liable to Buyer, end user, customer or any third party for special, consequential, incidental, liquidated or punitive damages and, under no circumstances shall any award against Alltech in favor of Buyer, end user, customer or any third party exceed the amount paid to Alltech by Buyer during the twelve month period immediately preceding the date on which notice is first given to Alltech of the claim. Alltech shall not indemnify Buyer, end user, customer or any third party from potential claims against the Product manufacturer or Third Party. The parties agree that the foregoing remedy is reasonable and does not cause the Agreement to fail of its essential purpose.
e) In the event of Buyer’s resale, redistribution, installation or other similar action of any of the Products sold hereunder, in whatever form, Buyer shall make no warranty on its own binding Alltech, Third Party or any others, and shall notify such purchaser of these Alltech Terms and disclaimer of any Alltech warranty, in writing or otherwise.
f) Buyer shall defend, indemnify and hold harmless Alltech (and Alltech's parent company, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees, individually and collectively, "Indemnitees") against any and all claims, demands, judgments, loss, injury, death, damage, liability, deficiency, actions, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or occurring in connection with the Products purchased from Alltech and involving Buyer's acts, omissions, negligence, misconduct or breach of Alltech’s Terms.
No failure by Alltech to exercise any right accruing to it by virtue of the Alltech/Buyer relationship, failure to enforce strict performance under Alltech’s Terms or under any contract of sale entered into with the Buyer shall operate as a waiver thereof or preclude the exercise of any other right or privilege by Alltech. The rights and remedies reserved herein shall be cumulative and additional to all other rights and remedies available to Alltech in law, equity or otherwise.
10. Confidential Information
All non-public, confidential or proprietary information of Alltech, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Alltech to Buyer, whether disclosed orally, visually, or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed, copied or disseminated unless authorized by Alltech in writing. Alltech shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
Any notice required or contemplated hereunder by Buyer to Alltech shall be in writing and shall be delivered personally or sent by facsimile or by prepaid registered mail to Alltech.
12. Limitation of Actions
Any action by Buyer arising out of Alltech’s acceptance of the Order or arising out of Buyer’s acceptance of the Product supplied must be commenced within one year after the cause of action has accrued. Buyer expressly waives and foregoes any right to trial by jury.
13. No Third-Party Beneficiaries
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of Alltech's Terms.
14. Governing Law
The rights and obligations of the Buyer and Alltech, and the construction and effect of any contract formed between them shall be governed by the laws of the State of Ohio, exclusive of choice of law provisions. Buyer consents to the personal jurisdiction of any state or federal court located within the State of Ohio and waives any objection to and agrees not to assert any defense based on jurisdiction or venue.
15. Entire Agreement and Amendments
For purposes of this Agreement, “Alltech Industries, Inc.” or “Alltech” may include its subsidiaries, affiliates, parents and affiliated entities and subsidiaries thereof, in Alltech’s sole discretion. There are no other terms and conditions applicable to the purchase and sale of Alltech’s Product other than those contained herein. No modification, amendment, waiver or other change of any provision of Alltech’s Terms shall be binding on Alltech without Alltech’s written consent. Invalidity of any provision of Alltech’s Terms shall not affect the validity of any other provision of this document and any invalid provision shall be severed from the valid provisions. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Alltech. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder. Alltech may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Buyer's prior written consent. Alltech reserves the right to change, modify and/or discontinue these Terms at any time, with or without notice.
Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order