Appliance Delivery Expectations
ALL, Inc. is dedicated to providing our customers with a best-in-class service and delivery experience. To do so, ALL, Inc. is committed to communicating our expectations to ensure clarity on the requirements for an efficient and safe delivery while minimizing the opportunity for product and site damage. Failing to comply with the below expectation may result in a delayed delivery, additional charges, increased damage, or non-warranty/chargeable damage claims.
Scheduling
– Any customer delivery date adjustments greater than 14 days need to be communicated 45 days prior to initial delivery date.
– Any changes to requested delivery date must be communicated via phone & e-mail no later than 3 days prior to scheduled delivery date.
– ALL, Inc. will confirm with customer the day prior to the delivery, customer’s failure to respond to this confirmation or any other scheduling inquiry may result in cancellation or delay of delivery.
– Customer’s failure to comply with the above requirements will result in an additional delivery fee.
Job Site Readiness Requirements
– Clear and clean access must be provided to unload truck…free from debris and impediments.
– A path from delivery truck to home must be deemed safe to move major appliances.
- ALL, Inc. may determine that minor appliances can still be safely delivered but major appliances will need to be rescheduled.
– All Cabinets, Countertops, Kitchen/Laundry Floor and Trim must be installed and ready to accept appliances.
– All Electrical and Plumbing must be complete at location with shutoffs in place, if applicable to installation.
– All Drywall and Paint should be complete and ready to accept appliances in delivery areas.
– ALL, Inc. requires a safe job site to ensure delivery is complete as scheduled. In the absence of permanent stairs…
- Any ramps must be at a minimum of 2 ft. wide and maximum of 4 ft. high and must be secured to the elevated surface.
- If it is determined that a ramp is not safe, the delivery will be rescheduled, and our delivery team will bring ramp with them for an additional fee.
– Customer’s failure to comply with the above requirements will result in additional delivery fee(s).
Damage / Warranty / Returns
– ALL, Inc. will document damages at the time of delivery.
– Customer will inspect product within 48 hours of delivery and report damage to ALL, Inc.
– Damage reported outside of 48 hours or incurred by other trades will be chargeable to Customer.
– Stock Products ordered in error will incur restock fee; 20% if fully created, 40% if uncrated.
– Custom order products return request will be denied.
– Products Delivered prior to complete site readiness will need to be inspected and documented within 48 hours of delivery. Damage noted after 48 hours will not be covered under warranty.
Multi Family Site Readiness Expectations
ALL, Inc is committed to providing our Customers with the best-in-class service and delivery experience. To do so, ALL, Inc is committed to communicating our expectations to ensure clarity on the requirements for an efficient and safe delivery while minimizing the opportunity for product and site damage. Failing to comply with the below expectation may result in delayed deliveries, additional charges, increased damage, or non-warranty/chargeable damage claims.
Scheduling
– Customer to provide ALL, Inc with complete schedule at time of issuing contract.
– Updated schedules will be provided to ALL, Inc. on a monthly basis leading up to initial delivery.
– Schedule changes within 1 month of initial delivery need to be communicated with both phone call and email.
– ALL, Inc will confirm with Customer four days prior to each delivery, failure to respond to this confirmation or any other scheduling inquiry may result in cancellation of delivery.
Job Site Requirements
– Clear and clean access must be provided to unload truck.
– Lift/lift operator must be provided above 1st floor unless otherwise discussed.
– All Cabinets, Countertops, Kitchen/Laundry Floor and Trim must be installed and ready to accept appliances in delivery areas.
– All Electrical and Plumbing must be complete at location with proper shutoffs in place, if appliable to installation.
– All Drywall and Paint should be complete and ready to accept appliances in delivery areas.
Damage / Warranty / Returns
– ALL, Inc will document damages at time of delivery.
– Customer will inspect product within 48 hours of delivery and report damage to ALL, Inc.
– Damage reported outside of 48 hours or incurred by other trades will be chargeable to Customer.
– Stock Products ordered in error will incur restock fee; 20% if fully created, 40% if uncrated.
– Custom order products return request will be denied.
– Products Delivered prior to complete site readiness will need to be inspected and documented within 48 hours of delivery. Damage noted after 48 hours will not be covered under warranty.
APPLIANCE INSTALLATION EXPECTATIONS
ALL, Inc. is committed to providing our customers with the best-in-class service and installation experience. To do so, ALL, Inc. is committed to communicating our expectations to ensure clarity on the requirements for an efficient and safe installation while minimizing the opportunity for product and site damage. Failing to comply with the below expectation may result in delayed installations, additional charges, increased damage, or non-warranty/chargeable damage claims.
SCHEDULING
– Installation date adjustments greater than 14 days need to be communicated 45 days prior to initial installation date.
– Any changes to requested installation date to be communicated via phone & e-mail no later than 3 days prior to scheduled installation date.
– ALL, Inc. will confirm with customer the day prior to the installation, customer’s failure to respond to this confirmation or any other scheduling inquiry may result in cancellation of installation.
– Customer’s failure to comply with the above requirements will result in an additional installation fee.
ACCESS REQUIREMENTS
– An adult 18+ will be present.
– Builders will ensure a lock box, code, or key is provided and that the area is clear of other trades and ready to accept appliances for work to be completed.
GENERAL REQUIREMENTS
– Verify all cabinet, counter, & applicable openings are correct per manufacturer specs.
– Some appliances require additional filler strip for installation, check manufacturer specs to ensure proper placement and fillers are “finished” on visible sides. This is particularly important on built-in appliances and flush installation settings.
– Ensure all cabinet panels are onsite and made to manufacturers specifications.
– Ensure all hardware/handles are onsite and specific mounting location is noted on the panel.
ELECTRICAL REQUIREMENTS
– Ensure all electrical connections are provided per code and service is active per individual appliance requirement.
– Confirm per specifications which appliances require plugs vs hardwire.
– Junction box need to be in place for hardwire appliances.
– Outlets need to be in place for “plug in” appliances.
PLUMBING REQUIREMENTS
– Water shut off valves in place and accessible. Service is on to the property to ensure testing of all connections.
– Drain connections need to be in place at discharge.
– Some Appliances require plumbing connections be placed in specific locations to allow for proper installation. Please reference the manufacturers spec guide to ensure proper placement.
EXHAUST HOODS REQUIREMENTS
– Ensure cabinet openings and ductworks are appropriate per specifications.
– Proper ductworks is onsite to connect between rough in and hood discharge. Not provided by ALL, Inc.
– Access panel is removable in order to connect ductwork on hood liners.
GAS REQUIREMENTS
– Natural gas/LP service is accessible and shut off valves are in place.
– Service must be active to test.
– Some appliances require gas connections be placed in specific locations to allow for proper installation. Please reference the manufacturers specification guide to ensure proper placement.
– Some materials provided not including supplementary gas lines, water lines, fittings and power cords will be additional charges.
*The requirements listed are to ensure your project is ready for your appliance delivery/installation service. If all requirements are not met ALL, Inc. reserves the right to reschedule your service and additional charges may apply.
**ALL, Inc. does not modify or correct the services necessary to facilitate the installation. These include but are not limited to electrical supply, water supply, gas supply, or ventilation provided to connect the appliances. It is the responsibility of the customer to ensure the systems required meet building codes and are available to facilitate installation using standard materials associated with the installation of the specific appliance.
1. OFFER, CONFIRMATION, AGREEMENT
(a) These terms and conditions (“Terms”) apply to the sale or supply of all products or systems (“Products”) by All, Inc. (“Seller”) to you (“Customer”) and are a necessary part of any Offer or Agreement related thereto. Customer’s ordering of Products from Seller constitutes acceptance of these Terms, as the same may have been updated through the date of such acceptance. As used herein, “Agreement” means any written agreement for supply, distribution, sale, or license of any Products entered into between Seller and Customer, or any purchase order that is issued by Customer and accepted by Seller; and “Offer” means any quotation, proposal or offer provided to Customer by Seller. Seller and Customer are individually referred to herein as a “Party”, and collectively as the “Parties”.
(b) In the event of any conflict or inconsistency between these Terms and the terms of any Agreement or Offer from Seller, the terms of such Agreement or Offer will prevail, but only with respect to the specific conflict or inconsistency.
(c) The terms “agreed”, “consent”, “confirmed”, “accepted”, "informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where "in writing" means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The terms “include”, "includes" or "including" will be construed without limitation to the generality of preceding words.
(d) Any different or additional terms in any purchase order, blanket instructions, terms of purchase or other writing from Customer will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force or effect. Commencement of performance or shipment will not be construed as acceptance of any of Customer's terms or conditions. Course of performance or usage of trade will not be applied to modify these Terms.
(e) These Terms may be amended by Seller by posting an updated version on its website, provided that in respect of an Agreement and an Offer the version of the Terms applicable as of the effective date of the Agreement will apply.
(f) Offers by Seller are open for acceptance within the period stated in such Offer or, in the event that no period is stated, within thirty (30) days from the date of the Offer, provided that Seller may amend, withdraw or revoke any Offer at any time prior to the receipt by Seller of the acceptance of an Offer. No order submitted by Customer will be deemed final or accepted by Seller unless and until confirmed by Seller.
(g) Customer is solely responsible for the accuracy of any order, including with respect to the specification, configuration or other requirements of Products and services, and functionality, compatibility and interoperability with other products (not authorized by Seller), as well as fitness for particular use. Customer warrants that the information provided to Seller under an Agreement is complete, accurate and true, and Customer acknowledges that a failure to provide complete, accurate and true information or instructions to Seller may detrimentally affect Seller's ability to discharge its obligations or exercise its rights under an Agreement.
(h) Any catalog, specification, price sheet or other similar documentation prepared by Seller is strictly for convenience only and will not be deemed as an Offer. Seller believes such documentation is complete and accurate at time of printing, but Seller does not warrant that such documentation is error free. Seller will not accept responsibility for any damages in connection with errors of measurements, descriptions, application recommendations and the like.
(i) Products will be supplied in accordance with the standard functionalities, styles and sizes as described in Seller’s catalogs, if any, or, for special or made-to-order Products, in accordance with Seller’s drawings and specifications sheets. In the event of a conflict between an order of Customer and a drawing or specification sheet from Seller approved by Customer, the latter will prevail.
(j) Assumptions, exclusions and qualifications stated by Seller in Offers, Agreements or otherwise will direct the Agreement and will be construed as part thereof and guide its execution and interpretation.
(k) Where the performance under the Agreement relies on the approval, confirmation or acceptance by Customer of a (draft) proposal, design, deliverable, planning or any other action by Seller, Customer shall do so within the period stated in the Agreement, or, in the event that no period is stated, within seven (7) days after receipt of a request from Seller, in the absence of a response within such time period Customer will be deemed to have approved, confirmed or accepted as submitted by Seller.
(l) In the event that Customer resells Products or incorporates Products in offerings to its customer, Customer shall ensure that all its customers and/or end users of Products comply with all relevant Customer’s obligations under the Agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the Agreement and these Terms, failing which Customer shall indemnify, defend and hold harmless Seller and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses, liabilities, costs (including legal costs) and expenses arising out of or in connection with any non-compliance.
2. PRICES AND TERMS OF PAYMENT
In consideration of the sale of Products and/or performance of services by Seller, Customer shall pay all prices and fees (“Prices”) in accordance with the Agreement and this section 2. Prices are in U.S. Dollars. Prices at the Sellers discretion may or may not include all applicable taxes, duties or other governmental fees, now or hereafter enacted, including value-added or similar taxes levied by any government, and Seller may add these to the Price or invoice separately, and Customer will reimburse Seller promptly on first request.
(a) Subject to notice to Customer. Seller reserves the right to adjust Prices for Products and/or services not yet delivered or performed to reflect variations in individual costs of more than five percent (5%) including any foreign exchange rate fluctuations, raw materials and other costs of manufacturing and distribution, and labor costs, that take effect between the date of the Agreement and delivery of Products and/or service. In addition, if an Agreement has a term longer than twelve (12) months, Seller may adjust Prices.
(b) In the event that product ordered by Customer is not carried in Seller’s stock, (“Non-stock”) any cancellation, delay or other change by Customer of a purchase order previously accepted by Seller will require the prior approval of Seller and the approval will be without prejudice to any rights or remedies Seller may have under the Agreement or at law. If, on request of Customer, Seller agrees to any such change in purchase order or a change in an Agreement, including an (partial) cancellation, delay or suspension, the addition, omission, alteration, substitution or modification of the design, quality, standard, quantity, manufacturing site or performance (including sequence, quantities, or timing) of Products and/or services (each, a “Variation”), or a Variation is required due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) incorrect or incomplete information provided by Customer, or (iv) non-compliance by Customer of any of its obligations under an Agreement, Customer shall reimburse Seller for all costs and expenses incurred in respect of such Variation promptly on first request.
(c) All sales are final.
(d) Any cancellation, delay or other change by Customer of a purchase order previously accepted by Seller will require the prior approval of Seller and the approval will be without prejudice to any rights or remedies Seller may have under the Agreement or at law. If, on request of Customer, Seller agrees to any such change in purchase order or a change in an Agreement, including an (partial) cancellation, delay or suspension, the addition, omission, alteration, substitution or modification of the design, quality, standard, quantity, manufacturing site or performance (including sequence, quantities or timing) of Products and/or Services (each, a “Variation”), or a Variation is required due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) incorrect or incomplete information provided by Customer, or (iv) non-compliance by Customer of any of its obligations under an Agreement, Customer shall reimburse Seller for all costs and expenses incurred in respect of such Variation promptly on first request.
(e) Seller may invoice Customer upon shipment of Products or when services have been performed. Seller may require: (i) Customer to pay on fixed payment days; (ii) an advance payment of (part of) the Price; and/or (iii) invoice per separate specified phase, time period or milestone of performance. Customer shall make net payment within thirty (30) days of date of invoice to the designated bank account of Seller. Customer shall pay all amounts due to Seller in full without any set-off, counterclaim, deduction or (tax) withholding.
(f) In the event Customer fails to make any payment due under an Agreement on the due date, then, whether or not Seller has made a formal demand for payment and in addition to any other rights and remedies available to Seller, to the extent permitted by applicable law: (i) all amounts due from Customer will be considered payable and non-disputed, admitted debt; (ii) Customer shall pay Seller interest on all due amounts from the due date until Seller has received full payment thereof, at the rate of eighteen percent (18%) per annum or the maximum statutory rate, whichever is less, and shall pay Seller all costs of payment collection, including attorneys’ fees; and (iii)Seller may cancel any credit issued to Customer and require, to its satisfaction, that Customer provides (additional) security, pre-payments or deposits, and may implement additional conditional payment terms or accelerate payments schedules for any outstanding performance.
(g) Seller may set off against and deduct from any amount that Seller (or any of its affiliates) owes to Customer under any agreement any amount that Customer owes to Seller or against any advance payments or deposits made by Customer.
3. DELIVERY OF PRODUCTS AND/OR SERVICES
(a) Unless agreed otherwise, Products will be delivered Ex Works –Seller facility (INCOTERMS latest version). Seller shall perform Services at the location(s) agreed in the Agreement. Dates communicated or acknowledged by Seller are approximate only, and Seller will not be liable for, nor will Seller be in breach of its obligations to Customer, for any delay in delivery or performance, provided that Seller shall use commercially reasonable efforts to meet such dates In the event of delay, Seller shall use commercially reasonable efforts to deliver Products (where applicable) within a period that is reasonably needed given the cause of the delay, failing which Customer's sole and exclusive remedy will be to cancel the purchase order for undelivered Products and/or services..
(b) Customer shall note any damage to Products caused in transit, or shortages thereto, on transport documentation immediately upon receipt of Products, with due regard to applicable instructions by Seller or the carrier. All Products delivered under the Agreement will be deemed accepted by Customer as conforming to the Agreement, and Customer will have no right to revoke any acceptance, unless Customer provides Seller notice of a claimed nonconformity within seven (7) days of the date of delivery. Notwithstanding the foregoing, any use of a Product by Customer or its agents, employees, or customers after delivery will constitute acceptance of that Product by Customer. Seller shall at its option and within a reasonable time, exchange nonconformities by either replacing Products returned in new condition and original packaging or reimbursing Customer. Special and/ or Custom Orders are not returnable.
(c) Minor Nonconformities will not prevent or suspend acceptance by Customer of the Products, and Seller shall correct these within a reasonable time. “Minor Nonconformities” are nonconformities or anomalies that do not hinder the overall operation and intended use of Products in accordance with the specifications.
(d) Seller may make changes to the design, materials, fit and finish of Products, and Documentation provided that such changes do not materially affect the functionality of the Product. Unless specifically agreed otherwise, Seller does not warrant the availability, accuracy, completeness, reliability, timeliness or output from Products. Customer shall not use or rely on Products for any other applications or purposes than agreed in the Agreement.
(e) Customer explicitly acknowledges that certain features or functionality of Products may rely on the availability and correct functioning of third-party service providers, as may be indicated by Seller, including supply of energy, data storage, connectivity and communication services. These are outside of the control of Seller, and Seller will have no responsibility or liability in this respect.
(f) Customer is responsible for all information, orders, instructions, materials, and actions provided or performed by Customer directly or by third parties engaged by Customer (excluding subcontractor’s of Seller) in connection with the delivery or performance by Seller of any Products and/or services. Seller will be entitled to rely on the accuracy and completeness of all information furnished by Customer, to include but not limited to, designs, specifications, required materials and directions. Upon request of Seller, Customer shall promptly provide any other information, under Customer's control and relevant to the product and/or services of Seller under the Agreement.
(g) In the event of delay or interruption in delivery of Products and/or services for reasons not attributable to Seller or due to a Variation, the timelines for performance and/or services by Seller will be amended accordingly. Seller will be entitled (in addition to the increased costs referred to in section 2(c)) to a reasonable compensation by Customer for any damages and/or costs incurred by such delay.
(h) In the event Product is ordered at the request of the Customer and Customer requests Seller to retrieve Product Customer wishes to return, a 25% minimum restocking fee will be charged to Customer, excluding any Non-stock products.
4. USE OF PRODUCTS AND SERVICES
(a) Customer shall use Products and services only for their intended purposes and in accordance with all instructions contained in the manuals, guidelines, warranty terms and any other terms and conditions applicable to such Products and services or provided by any personnel of Seller, deployed or subcontracted by Seller in the performance of an Agreement (“Personnel”). Customer shall maintain the site, site conditions and equipment supplied and/or used by Seller in the performance of services in good condition, repair, and working order, and shall protect same against damage and external influences.
(b) Customer shall not perform (or permit) any activity on any equipment supplied and/or used by Seller in the performance of Services, except normal use in accordance with the specifications or otherwise with the prior approval by Seller. In the event of any unauthorized actions, Seller may suspend the Services until the equipment has been restored to its original compliant state and charge Customer on the basis of a Variation, and until confirmed any warranty obligations of Seller with respect to such Services will be null and void.
(c) Seller shall not be responsible for the failure of any of its Products and/or services to provide the expected performance, benefits, effects or outcome arising from: (i) Customer’s failure to comply with the terms under the Agreement; (ii) Force Majeure and other unusual external influences; or (iii) Variations.
5. INSTALLATION; SERVICES ON-SITE
This section applies where Seller (or its subcontractor) will perform appliance installation activities (“Installation” or “Install”) at a site owned or controlled by Customer.
(a) Customer is responsible for the timely completion of preparatory works and site preparations in conformity with Site Readiness requirements as provided by Seller on its website and incorporated herein by reference. Customer shall prior to the agreed start of Install on site, and in such a manner that Seller can perform in the most efficient manner and within agreed time schedules: (i) provide and maintain the site conditions (including infrastructure); (ii) provide all necessary information, instructions, inspections, authorizations, approvals, permits and notify Seller about the location of any utilities, physical characteristics, legal limitations; (iii) provide site access, including traffic management, where applicable; and (iv) put at the disposal of Seller all materials, tools, constructions, other facilities, and all reasonable assistance in an accurate and timely manner at no additional costs to Seller, all in compliance with applicable laws, including but not limited to all applicable health and safety, electrical, and building codes.
(b) Customer shall not call Seller upon site before the obligations under section 5(a) have been satisfactorily completed. In the event of waiting times of more than four (4) hours on a day, Seller may reschedule and charge Customer a full working day for that day for the resources concerned. Customer shall: (i) provide a fully qualified representative to support Seller as and when required while working on site; (ii) provide utilities (including gas, water, electricity, and connectivity), heating, and lighting as necessary for the performance on site; (iii) provide adequate and lockable rooms for Personnel (equipped with sanitary installations) on or near the site; (iv) decommission and collect the materials that are replaced by Products and remove these from the site; and (v) assist Seller during (performance) tests. Upon request of Seller, Customer shall arrange for the temporary shutdown of facilities at the site if required for any installation of Product (including water systems).
(c) Upon finalization of Install on-site, Seller shall notify Customer in accordance with the acceptance protocol agreed between the Parties. In the event that no such protocol has been agreed, within five (5) days after notice to Customer of finalization of installation on-site, Customer shall check the Products supplied and/or Installed by Seller and, subject to sections 3(b) and 3(c), notify Seller of any Defect (as defined in section 8(a)), in the absence of which Customer will be deemed to have accepted the Products supplied and/or Installed five (5) days after notice. Seller shall resolve Defects so notified within a reasonable period in accordance with section 8.
6. RISK AND TITLE
(a) Risk of damage to or loss of Products will pass to Customer (i) upon delivery by Seller to Customer in accordance with the applicable INCOTERM, or (ii) in the event that Seller Installs Products on-site, unless agreed otherwise, upon Customer receipt and acceptance of Product and/or acceptance of Install.
(b) Legal title to Products will pass to Customer only when Seller (or its financers) has received payment for such Products in full and, to the extent permitted by applicable law, Seller received payment in full of all other amounts due by Customer under any other agreement with Seller (or any of its affiliates). Until legal title to Products has passed to Customer, Customer shall: (i) not assimilate; transfer or pledge any of the Products or grant any right or title in the Products to any third party, except in the normal course of business and against payment or subject to retention of title; and (ii) ensure that the Products remain identifiable as Products owned by Seller. In the event of breach by Customer, Seller may require that Customer return to Seller, at Customer’s cost (including costs for de-Installation), all Products in which the title has not yet passed, and Customer shall fully cooperate to enable Seller to collect such Products and grant Seller (or its representative) free access to the location of the Products, and other equipment supplied and/or used by Seller in the performance of services
7. FORCE MAJEURE
Seller will not be liable for any delay or damages resulting from or related to a Force Majeure event. If a Force Majeure event occurs, Seller’s performance will be suspended for the duration of such Force Majeure event. “Force Majeure” means any circumstances or occurrences beyond the reasonable control of Seller, whether or not foreseeable at the time of an Agreement, as a result of which Seller cannot reasonably perform or execute its obligations, including, without limitation, acts of God, natural catastrophes (including earthquake, lightning, hurricane, typhoon, flooding or volcanic activities or extreme weather conditions), pandemics or epidemics, labor disputes, strikes, lock-outs, war, terrorism, political situation, civil unrest, riots, sabotage, vandalism, industry-wide shortages, breakdown of plant or machinery, actions or inactions of governmental entities (including permitting authorities), fault or loss of electricity supply, cyber-attacks and hacking or non-performance by suppliers of Seller or by other third parties on which Services rely (including connectivity and communication services). In the event that Force Majeure event extends (or is reasonably expected by Seller to extend) for a period of three (3) consecutive months, Seller will be entitled to cancel all or any part of an Agreement without any liability towards Customer.
8. LIMITED WARRANTY AND DISCLAIMER
(a) In most instances, Seller Products are sold subject to an applicable standard limited warranty either accompanying the product or as published on Seller’s website as the standard warranty applicable for a particular Product (the “Standard Product Warranty”). For any Product that is sold by Seller that is not subject to an applicable Standard Product Warranty, Seller warrants only that for one (1) year from delivery to Customer the Products will be free from Defects. For any Services performed by the Seller, Seller warrants the Service will be free from defects for one (1) year from the date Seller completes performance. The warranty period will commence upon acceptance as set forth in section 5(c). A "Defect" (or “Defective”) means, in relation to a Product, that a Product has any defect in material or workmanship which causes the Product to fail to operate in accordance with the specifications provided by Seller, with consideration given to the overall performance of the Product and in relation to Services, means that the Service has not been performed in a competent, diligent manner.
(b) Unless otherwise agreed by the Parties, Seller does not provide any warranty for third party products, such warranties are provided by the Product’s manufacturer, or for third party software and/or applications services, or customized Products.
(c) In order to be entitled to make a valid claim under warranty, Customer shall promptly notify Seller of alleged Defective Products or Defective Services in writing prior to expiration of the warranty period. In the event that Seller decides, in its sole discretion, that a claim under warranty is valid, Seller shall, within a reasonable time, at its own option, repair or offer replacement products for Defective Products. If despite reasonable efforts of Seller, a Defective Product cannot be repaired, no replacement product can be supplied, Seller, at its discretion, shall make an appropriate refund or credit of monies paid by Customer for those Defective Products. Repairs, replacements or remedies will not extend or renew the applicable warranty period. Customer shall obtain consent from Seller on the specifications of any tests it plans to conduct to determine whether a Defect exists. Replacement products supplied by Seller may have minor deviations in design and/or specifications which do not affect the functionality of replaced Product. In respect of any replaced or credited Products, Seller may, in its sole discretion, claim the property of replaced Products and require Customer to return these to Seller.
(d) Customer shall bear the costs of access for remedial warranty efforts by Seller, including removal and replacement of systems, structures or other parts of Customer’s facility, the de-installation of Defective Products, and the re-installation of replacement products. Customer shall not return Products to Seller without consent of Seller and unless in accordance with applicable Seller’s return policies. In the event that Seller decides that a claim under warranty is not valid, Customer will bear the costs incurred by Seller in handling and testing, and the transport of Products returned.
(e) Any indemnification and warranty obligations of Seller under an Agreement are conditional upon:
(i) proper storage, installation, use, operation, and maintenance of Products, all in accordance with user manuals, warranty policies and other instructions or terms communicated by Seller to Customer; (ii) Customer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records; and (iii) modification or repair of Products only as authorized by Seller. Failure to meet these conditions renders the warranty null and void. Seller will not be responsible for normal wear and tear, or environmental or stress testing. The warranty provided in this section 8 does not apply to damage or failure to perform arising as a result of any Force Majeure or from any abuse, misuse, abnormal use, improper power supply, powers surges or fluctuations, corrosive environments, neglect, exposure or any use or installation in violation of the instructions or restrictions prescribed by Seller or any applicable standard or code.
(f) Any indemnification and warranty obligation of Seller under an Agreement will not establish, by themselves, any liability to third parties or the public. Nothing in an Agreement will be construed to create any obligation, standard of care or liability to persons or third parties.
(g) If a recall, retrofit, update, withdrawal or any other remedial action related to any Product is required, Customer shall fully cooperate and shall provide such assistance as Seller may require. Customer shall keep accurate books and records to assure traceability of the Products in the event of a Product recall or any other remedial actions.
(h) SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET OUT IN THE AGREEMENT, AND SUBJECT TO APPLICABLE LAW, SECTION 8 AND 9 STATE THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES IN CONNECTION WITH DEFECTIVE PRODUCTS OR DEFECTIVE SERVICES, REGARDLESS OF WHEN THE DEFECT ARISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT OR EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WILL EXTEND DIRECTLY TO CUSTOMER ONLY AND NOT TO ANY THIRD PARTY, INCLUDING CUSTOMER’S CUSTOMERS, AGENTS OR REPRESENTATIVES. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AN ESSENTIAL PURPOSE OF THE LIMITED EXCLUSIVE LIABILITIES AND REMEDIES UNDER THE WARRANTY IS ALLOCATION OF RISKS BETWEEN SELLER AND CUSTOMER, WHICH ALLOCATION OF RISKS IS REFLECTED IN THE PRICES.
9. LIMITATION OF LIABILITY
(a) THE LIABILITY OF SELLER AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THE PROVISION OF PRODUCTS OR SERVICES TO CUSTOMER, OR OTHERWISE UNDER AN AGREEMENT, INCLUDING ANY INDEMNITIES, PENALTIES OR LIQUIDATED DAMAGE (“CLAIMS”), WILL BE LIMITED TO A MAXIMUM, AGGREGATE TOTAL (“LIABILITY CAP”) OF (I) TWENTY PERCENT (20%) OF THE TOTAL PRICE PAID BY THE CUSTOMER TO WHICH SUCH CLAIMS RELATES OR; (II) TWO MILLION U.S. DOLLARS ($2,000,000), WHICHEVER IS LOWER. FOR PRODUCTS AND/OR SERVICES THAT ARE PERFORMED.
(b) Seller will not under any circumstances be liable for any lost profits, lost savings, loss of data, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages, whether or not such damages are based on tort, warranty, contract or otherwise – even if Seller has been advised, or is aware, of the possibility of such damages.
(c) In order to be entitled to make a valid Claim, Customer shall notify Seller of any such Claim within seven (7) days of the date of the event giving rise to the Claim. Claims that are not brought or filed in accordance with the preceding sentence will be null and void.
(d) The limitations and exclusions of liability will apply only to the extent permitted by applicable mandatory law.
10. CONFIDENTIALITY
Customer shall maintain any technical, commercial and financial information, including any Offer and (pricing) terms, other data disclosed to Customer by Seller, and any Feedback, confidential and shall not disclose such information to any third party and shall not use any such information for any purpose other than as agreed by the Parties and in relation to the Offer and/or the Agreement.
11. EXPORT/IMPORT CONTROLS
(a) Certain transactions of Seller may be subject to export or import controls laws and regulations that prohibit or restrict the (re)export or transfer of certain items to certain countries, entities, or individuals, such as the laws and regulations of the UN, EU and US (“Export Regulations”). The (re)export or transfer of Products and/or Services, as well as technical assistance, training, investments, financing, financial assistance, brokering and licensing of technology, are subject in all respects to the applicable Export Regulations and to the jurisdiction of the relevant authorities responsible for Export Regulations. If any such (re-)export or transfer requires an export or import license, or is otherwise prohibited or restricted under Export Regulations, Seller may, in its sole discretion, suspend its obligations to Customer until such license is granted or for the duration of any restrictions or prohibitions or terminate (the relevant part of) the Agreement without incurring any liability.
(b) Customer shall impose all export control restrictions to any third party if the Products and/or Services are (re)exported or transferred to third parties. At the request of Seller and if required by applicable Export Regulations, Customer shall inform Seller on any (re)export or transfer of the Products in order to comply with Export Regulations and any other regulatory responsibilities governing the sale of the Products, including requirements on the traceability of Products that may apply to Seller. Customer shall not provide any statement or certification in support of restrictive trade practices or boycotts.
12. ASSIGNMENT
(a) Customer may not assign an Agreement, or any of its rights or obligations thereunder, without the prior consent of Seller.
(b) Seller may delegate, assign, sell, novate, or subcontract in part or in whole its obligations and rights (including receivables) under any Agreement to any of its affiliates or any third party without the prior consent of Customer – and if such consent would be required under applicable law, such consent is herewith provided –, in which event Customer shall cooperate with Seller’s efforts, including providing relevant information, executing documents and making payments to accounts or third parties as notified by Seller
13. COMPLIANCE WITH LAWS; ANTI-BRIBERY
(a) Customer shall at all times comply and shall take all actions reasonably necessary to ensure that its business partners shall comply, with all applicable local and international laws and regulations, including on anti-bribery and anti-corruption and the Export Regulations. Accordingly, Customer shall conduct its business honestly and not engage in any act of bribery or corruption.
(b) Should Seller receive any indications about a breach of the obligation under (a) Customer shall cooperate and provide Seller with all information required to allow Seller to verify such indications, and if founded, section 15 will apply.
14. HEALTH AND SAFETY
(a) The Parties shall comply with all applicable legislation, rules and/or regulations on the health and safety of workers and/or employees, as well as the health and safety of the public in the vicinity. Customer shall provide and shall procure that its employees, agents, contractors or subcontractors provide safe work surroundings for Personnel and other representatives and shall take those measures prescribed by law and any other measures necessary for the prevention of accidents at the site and to ensure the health and safety of Personnel at the site. Customer shall timely inform Personnel of required safety precautions and advise Seller of all applicable site-specific health, safety, security and environmental requirements and procedures. Seller has the right, but not the obligation, to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the site.
(b) Customer shall ensure that no hazardous materials are present at the site. If hazardous materials are present, Customer shall and shall procure that its employees, agents, contractors or subcontractors handle these properly and if applicable, arrange for the appropriate removal and disposal thereof at the expense of Customer. If, in the reasonable opinion of Seller, the health, safety, or security of Personnel or the site is, or may be, imperiled by security risks, terrorist acts or threats, the presence of or threat of exposure to hazardous materials, or unsafe working conditions, Seller may, in addition to other rights or remedies available to it, evacuate some or all Personnel from the site (with the reasonable assistance of Customer), suspend performance of all or any part of an Agreement, and/or remotely perform or supervise Services (if possible) with no further liability to Customer. Conditions at a site that differ materially from those disclosed by Customer, or previously unknown physical conditions at site that differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Agreement, will be deemed a Variation.
15. BREACH; SUSPENSION; TERMINATION
(a) In the event of: (i) a breach by Customer of any of the provisions of the Agreement or these Terms, including any failure to pay any amount as and when due; or (ii) ) in the reasonable opinion of Seller, the financial position of the Customer (or a material change thereof) is likely to affect Customer’s ability to perform its obligations under the Agreement; or (iii) any proceedings in insolvency, bankruptcy (including reorganization), liquidation or winding up are instituted by or against Customer, whether filed or instituted by Customer (voluntarily or involuntarily), a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer; or (iv) Customer ceases, or threatens to cease, to carry on business; or (v) the control over or ownership of Customer changes, then Seller may declare all amounts outstanding by Customer immediately due and payable and may set off any amount that Seller (or any of its affiliates) owes to Customer under any agreement including any advance payments or deposits made by Customer, against amounts due pursuant to section 15(b). In addition, Seller may in its sole discretion by notice to Customer with immediate effect suspend or cancel any performance due from Seller (including production, delivery, installation and commissioning of Products, obligations under warranty and performance of services) or terminate the Agreement or any part thereof, without any liability, and/or suspend or cancel any credit terms offered to Customer. Seller may only use the right to terminate an Agreement pursuant to this section if, in respect of an event under (i) above that is capable of being remedied, Customer fails to remedy the breach within fourteen (14) days, or in respect of an event under (ii), Customer fails to provide Seller with a bank guarantee or other security to the satisfaction of Seller within fourteen (14) days.
(b) Customer shall indemnify, defend and hold harmless Seller and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses (including loss of profits or turnover), liabilities, costs (including legal costs and costs incurred in relation to unfinished products) and expenses arising out of or in connection with any of the following events: (i) a breach by Customer of any of the provisions or obligations of the Agreement or these Terms, or the occurrence of any of the other events set out in section 15(a); (ii) any claim by third parties for any loss, damage or injury or death caused or alleged to be caused by the negligent use, application, or installation of Products, caused by any modification of Product or integration of Product into other products not authorized by Seller, by Customer or its contractors, agents, affiliates or customers to whom it sold Product; or (iii) non-compliance by Customer with section 6(b), in which event costs will include the full replacement costs of products, systems or other equipment.
(c) Upon (early) termination or expiration of an Agreement, (i) all rights and licenses granted to Customer under that Agreement will immediately cease; (ii) return to Seller, at the costs of Customer, any Products of which (legal) title has not passed to Customer (in accordance with section 6), any other products, systems, or equipment supplied and/or used by Seller in the performance of the Services; and (iii) all reasonable costs and expenses incurred by Seller(including a reasonable profit) for any activities related to work performed by Seller prior to such termination will be considered due, payable and non-refundable.
(d) In the event of a suspension that lasts for more than two (2) months, the provisions of section 15(c )(iv) will also be applicable to any activities related to services performed by or for Seller prior to such suspension.
(e) The rights of Seller pursuant to this section 15 will be in addition to any other rights and remedies Seller may have at law or in equity. In the event of termination of an Agreement, the terms and conditions destined to survive such termination or expiration will so survive. Termination will not affect the rights of the Parties accrued up to the date of termination.
16. GOVERNING LAW AND FORUM
(a) The laws of the State of Minnesota govern all Agreements, Offers and these Terms, without regard to conflict of law principles. Any legal action or proceeding arising out of or in connection with an Agreement, an Offer or these Terms that cannot be settled through consultation in good faith within thirty (30) days after notice from either Party that a dispute exists, will be brought exclusively in the courts of the State of California.
(b) Nothing in this section 16 will be construed or interpreted as a limitation on either Party’s right under applicable law to seek injunctive or other equitable relief, to take any action to safeguard its possibility to have recourse on the other Party or to bring action or proceedings in relation to any failure to pay any amount as and when due.
17. MISCELLANEOUS
(a) The invalidity or unenforceability of any provision of these Terms or an Agreement will not affect the validity or enforceability of any other provision thereof, all of which will remain in full force and effect. In the event of such finding of invalidity or unenforceability, the Parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided. At reasonable notice, Customer shall assist Seller in verifying Customer's compliance with the Agreement.
(b) Any right of Seller set out in these Terms will be without prejudice to any rights or remedies Seller may have under the Agreement or at law or in equity. Customer acknowledges that Seller and any of its affiliates are intended to be third-party beneficiaries for purposes of all benefits under, and may enforce the provisions of the Agreement, including these Terms, where applicable. The failure or the delay of either Party to enforce any provision of these Terms or an Agreement will not constitute a waiver of such provision or a waiver to enforce it.
(c) The terms of an Agreement (including these Terms and any other terms and conditions forming part thereof) state the entire understanding and agreement between the Parties as to the sale of Products and performance of services under that Agreement and will supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between Seller and Customer with respect to the subject thereof. The Parties expressly acknowledge that, in entering into an Agreement, no reliance has been placed on any representations which have not been incorporated as part of that Agreement. No variation to an Agreement will be binding upon either Party unless made in writing and signed by an authorized representative of each of the Parties.
(d) Prices and terms are subject to correction for typographical or clerical errors.
