Alltite Partner Program Terms and Conditions
Revisioned Version Effective date: November 8, 2012
By executing a service order (“Service Order”) for the purchase of calibration services from Alltite, Inc. (“Alltite”) under the Partner Program Service Plan, the customer (“Customer”) agrees to be bound by these Standard Terms and Conditions. Further, these Standard Terms and Conditions and any service order which refers to these Standard Terms and Conditions are intended to and are agreed to collectively constitute one agreement (“Agreement”).
1. Program Service Plan.
Under Alltite’s Partner Program Service Plan (“Plan”), Alltite will provide certain Calibration Services for Customer’s Equipment as described on the Service Order and more fully defined in Section 4 herein. In consideration for receiving the Calibration Services, Customer will pay Alltite a service fee (“Calibration Fee”) payable in the amounts set forth on the Service Order. The same Service Order will be used for all invoicing purposes throughout the Term and is hereby incorporated by reference into this Agreement.
2. Payment Terms.
(a) In consideration of Alltite rendering the Calibration Services, Customer will pay the Calibration Fee set forth on each Service Order. Except as expressly provided to the contrary on the Service Order, all payments will be due thirty (30) days from the invoice date. Customer will remit all payments to Alltite’s address set forth in the Service Order or as otherwise directed by Alltite.
(b) In addition to the Calibration Fee, Customer will be responsible for the payment of all (i) shipping and freight charges incurred by Alltite while providing the Calibration Services, (ii) Products purchased by Customer under Section 5, and (iii) any other related expenses or additional charges incurred for Repair Services under Section 4(e) or for Additional Calibration Services under Sections 4(a), (c) or (d), as applicable. Such charges and expenses will be invoiced separately and will be payable in accordance with subsection (a) above.
(c) All sales, property, excise and other applicable state and local taxes will be added to the pricing otherwise established under the Service Order and paid by Customer.
(d) All past due amounts will be subject to a service charge accruing at the lesser of one and one-half percent (11⁄2%) per month or the highest interest rate permitted by law.
The term of this Agreement (“Term”) shall commence and be for the time period as stated on the Service Order, unless this Agreement is otherwise terminated earlier in accordance with Section 12.
4. Calibration and Certification Services for Equipment.
Subject to the express terms of the applicable Service Order, Alltite will provide certain calibration and certification services (“Calibration Services”) for certain tools and equipment (collectively, “Equipment”) of Customer which are designated on the applicable Service Order in accordance with the following terms and conditions:
(a) Calibration Services. As to each piece of covered Equipment, Calibration Services will include condition and functionality inspection and adjustment “as found” and “as left” readings and a calibration certificate. Alltite will upload the results and data obtained from all calibrations of Equipment into Alltite’s web-based calibration documentation system commonly known as TorqueWareTM (“TorqueWareTM”). Customer will be granted a non-exclusive limited license to access and use TorqueWareTM subject to the terms and conditions of Alltite’s TorqueWareTM User Agreement, as same may be amended from time to time. In addition, Alltite will provide preventive maintenance and minor repairs for the Equipment (i.e., does not require replacement of any part or component). It is acknowledged and understood by Customer that the Calibration Services will only be provided for (i) Customer’s Equipment owned by Customer on the date when the Service Order is executed; and (ii) Products purchased from Alltite during the Term. Additionally, certain third party calibration services may be available for other types of tools and equipment at an additional cost as provided on the Service Order.
It is specifically understood and agreed by Customer that this Agreement will not cover or include any (i) tools or equipment which are purchased from any third party after the date when the Service Order is executed; and (ii) other types of tools or equipment which are not expressly included in the Calibration Services pursuant to the terms of the applicable Service Order. If Customer requests additional calibration services (“Additional Calibration Services”) which are outside those specified herein (for example, calibration services for tools purchased from third parties after the Service Order execution date, or calibration services for any type of tool that is not included in the Calibration Services under the terms of the Service Order), then the Additional Calibration Services will be subject to additional charges as provided on the Service Order or otherwise agreed to by the parties from time to time. Further, the provision of any Additional Calibration Services will be subject to the sole discretion of Alltite, and will be subject to Alltite’s availability. For purposes of this Agreement, “Additional Calibration Services” shall include all additional calibration services provided under this subsection 4(a), 4(c) and 4(d).
(b) Standard Calibration Services. Alltite will provide Customer with unlimited Calibration Services on Customer’s Equipment when serviced at Alltite’s business facilities (“Alltite Offices”) (to the extent such Equipment is included in the Calibration Services pursuant to the Service Order). Provided, Customer will be responsible for all shipment costs and freight expenses associated with shipping the Equipment to Alltite Offices, as provided in Section 2(b). Alltite will arrange, at Customer’s expense, for return transportation of the re-calibrated Equipment to its original place of shipment via standard ground delivery unless otherwise requested by Customer. Provided, Alltite reserves the right to refuse to provide Calibration Services for any Equipment that Alltite determines in good faith is not serviceable.
(c) On-Site Calibration Services. In addition to the Calibration Services provided at Alltite Offices, Alltite will provide Calibration Services at Customer’s business site(s) (each an “On-Site Location”) according to the number of On-Site Locations and number of visits specified on the applicable Service Order. If Customer requests additional on-site visits in excess of the number of on-site visits granted under the applicable Service Order, then such additional on-site visits will be considered Additional Calibration Services, and will be provided to Customer on an “as available” basis and subject to additional charges as set forth on the Service Order.
(d) On-Site Service. Alltite will provide on-site Calibration Services on weekdays (Monday through Friday), exclusive of Alltite holidays, for a period of eight (8) hours per day. Any On-site Calibration Services performed outside such time or on an expedited basis at the request of Customer will be considered Additional Calibration Services and subject to additional charges based upon Alltite’s then current pricing in effect at the time when such on-site Additional Calibration Services are performed; provided that the provision of such Additional Calibration Services will be at the sole discretion of Alltite and will be subject to Alltite’s availability. Customer shall provide an on-site service environment that allows reasonable workspace and safe working conditions that meets Alltite’s working environment standards. To the extent necessary, Alltite will have the right, at any time during Customer’s normal business hours, to enter the On-Site Locations in order to perform the on-site Calibration Services and Customer will provide reasonable assistance and facilities so as to expedite the performance of the Calibration Services.
(e) Repair Services. To the extent the condition of any Equipment requires services in excess of the Calibration Services, then Alltite will notify Customer of the Equipment’s repair needs. Customer may request that Alltite repair the Equipment (“Repair Services”). If Alltite is able or willing to perform the Repair Services, then the Repair Services will be provided at Alltite’s then current repair rates. Alltite will arrange, at Customer’s expense, for return transportation of any repaired Equipment to its original place of shipment via standard ground delivery.
5. Purchase of Products from Alltite/Trade-Ins.
During the Term, Customer may be entitled to a discount on the standard retail price for all new equipment (“Products”) purchased from Alltite. The discount will be applied and deducted from Alltite’s prices in effect at the time when the Products are purchased. The applicable discount percentage will be as set forth on the Service Order. Alltite will arrange, at Customer’s expense, for transportation of the new Products to any location designated by Customer via standard ground delivery or as may otherwise be requested by Customer. Alltite will pass through to Customer any applicable manufacturer’s warranty related to the Products. In addition, Customer may also be entitled to a certain discount on the purchase of certain Products with corresponding trade-ins as set forth on the Service Order.
6. Exclusive Warranty.
Alltite warrants that all Calibration Services and Repair Services will be performed in a good and workmanlike manner consistent with industry standards. If Alltite receives notice from Customer within 30 days of any unacceptable Calibration Services or Repair Services, as the case may be, Alltite will re-perform the Calibration Services or Repair Services at no additional cost other than freight or shipping. THE FOREGOING SHALL BE THE SOLE REMEDY OF CUSTOMER FOR ANY BREACH OF WARRANTY.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, ALLTITE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE QUALITY OR EFFECTIVENESS OF EITHER THE CALIBRATION SERVICES OR REPAIR SERVICES PROVIDED BY ALLTITE OR THE PRODUCTS PURCHASED BY CUSTOMER UNDER THIS AGREEMENT. ALLTITE DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability.
IN NO EVENT SHALL ALLTITE BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE CALIBRATION SERVICES, REPAIR SERVICES OR PRODUCTS PURCHASED HEREUNDER, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, LOSS OF USE, OR BUSINESS INTERRUPTION. FURTHER, ALLTITE’S ENTIRE LIABILITY FOR DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE CALIBRATION FEES PAID BY CUSTOMER TO ALLTITE DURING THE THEN PREVIOUS TWELVE (12) MONTH PERIOD OCCURRING PRIOR TO THE EVENT OR CONDITION GIVING RISE TO ANY SUCH CLAIM.
8. Independent Contractor.
The relationship of the parties is that of independent contractors and is not one of joint venture, partnership, employment or agency, express or implied. Customer is interested only in the results to be achieved by Alltite in the rendering of the Calibration Services and Repair Services, and the conduct and control of the persons performing the Calibration Services and Repair Services shall remain solely with Alltite as independent contractor.
9. Risk of Loss.
The risk of loss of any Equipment shipped to or from Alltite shall at all times be borne by Customer. In the event Customer purchases any new Products from Alltite according to Section 5, the risk of loss shall be transferred and borne by Customer at the time when the Product leaves Alltite Offices (i.e. FOB shipping point).
10. Indemnification by Customer.
Customer shall indemnify, save and hold harmless Alltite from any and all claims, damages, suits, actions, causes of action, losses, damages, fines, and liabilities, including reasonable attorney fees, arising out of the acts or omissions of Customer (intentional or negligent) occurring during the performance of this Agreement, including any injury to Alltite’s employees or any damage to Alltite’s personal property occurring while present at any On-Site Location.
During the Term and for one (1) year after the expiration or earlier termination of this Agreement, Customer (and any affiliates) shall not knowingly hire or directly solicit for employment any employee of Alltite unless Customer obtains the prior written consent from Alltite.
12. Default and Termination.
(a) Customer will be deemed to be in default under this Agreement if:
(1) subject to the provisions of paragraph 2, Customer fails to pay any amount due under this Agreement within thirty (30) days after the same becomes due and payable or fails to timely remit repayment on three (3) or more occasions during any twelve (12) month period whether or not actually paid; or
(2) In the event Customer commits a material breach of any of its obligations hereunder unless Customer cures such breach within thirty (30) days of written notice thereof or commits a material breach of its obligations hereunder on three (3) or more occasions during any twelve (12) month period regardless of whether the same is cured; or
(3) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Customer or any affiliate of Customer under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Customer of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Customer or the appointment of a receiver for all or substantially all of Customer’s assets or any corporate action taken by Customer in furtherance of any of the above actions.
(b) Alltite will be deemed to be in default of its obligations under this Agreement if:
(1) In the event Alltite commits a material breach of any of its obligations hereunder unless Alltite cures such breach within thirty (30) days of written notice thereof or commits a material breach of its obligations hereunder on three (3) or more occasions during any twelve (12) month period regardless of whether the same is cured; or
(2) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Alltite or any affiliate of Alltite under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Alltite of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Alltite or the appointment of a receiver for all or substantially all of Alltite’s assets or any corporate action taken by Alltite in furtherance of any of the above actions;
(c) In the event of any expiration or termination of this Agreement, any provision of this Agreement that is intended by their context to continue and survive shall so continue and survive.
13. Expenses of Enforcement.
In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys’ fees at trial and upon appeal, in addition to all other sums provided by law.
In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder will be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction.
15. Successor Interests.
Subject to any limitation upon assignment expressly contained herein, this Agreement will be binding upon and inure to the benefit of the successors, subcontractors, and assigns of the parties.
All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally, by email to Customer at the email address listed on the Service Order and to Alltite at firstname.lastname@example.org or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed to Customer or Alltite at the address listed on the then most recent Service Order, or, as to each party, at such other address as shall be designated by such party in a notice in writing to the other party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. Communication may also be transmitted via email provided that the transmitting party retains a record of when and to whom the communication was electronically transmitted.
17. Force Majeure.
Neither party will be liable for any delay or failure to perform its obligations solely due to any cause beyond its reasonable control. Provided, any delay resulting from such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable.
18. Limitations of Actions.
No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the services performed or to be performed may be brought by either party more than two (2) years after the cause of action has first accrued except that an action for nonpayment may still be brought two (2) years after the date of last payment owed by Customer under this Agreement.
Waiver of any breach of this Agreement committed by either party will not constitute a waiver of any other or future breach. Specifically, Alltite may elect to continue performance notwithstanding a breach committed by Customer, but Alltite’s performance will not constitute a waiver of such breach nor otherwise limit the exercise of Alltite’s remedies.
20. Number and Captions.
As used herein, the singular will include the plural, and the plural, the singular. All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.
If any provision of this Agreement is held invalid, such invalidity will not affect any other provisions which can be given effect without the invalid provision.
22. Entire Agreement.
This Agreement and any Service Order will be construed in accordance with the laws of the State of Kansas. This Agreement and any Service Order constitute the entire agreement between the parties and may only be modified by a written instrument executed by the parties. Any term or condition of an offer set forth on any Service Order expressly supersedes any conflicting term or condition of this Agreement.
Should any provision of this Agreement require judicial interpretation, the parties hereto agree that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be more strictly construed against the party who itself or through its agents prepared the same, it being agreed that the Customer, Alltite and their respective agents have participated in the preparation hereof.