Last Updated: July 25, 2022
1. General
This Contract (“Contract”) constitutes the entire agreement between Sisu LLC and its customers and/or buyers (collectively, “Customers” and each a “Customer”) relating to the provision of Deliverables or services, including parts (each a “Deliverable” and, collectively, the “Deliverables”) supplied by SISU and/or SISU’s parent or related companies (collectively, “SISU”). This Contract supersedes all other correspondence, quotations, and agreements relating to the subject matter hereof, and shall govern and apply to the supply of Deliverables to Customer, regardless of any terms and conditions appearing on any purchase order or other forms submitted by Customer or the inconsistency of any terms therein and herein (which additional or inconsistent terms and conditions are expressly rejected). Signature or other authorization by Customer to furnish any Deliverables will constitute acceptance of these terms and conditions.
2. Price and Payments
Prices are those in effect at the time of order. Unless otherwise specified on the front page, all prices are F.O.B. SISU’s Round Rock, Texas facility. Prices exclude freight, insurance, duties, handling charges, and taxes. All additional charges will be invoiced as a separate charge to be paid for by Customer. Unless otherwise specified in writing by SISU, payment terms are net thirty (30) days from the date of SISU’s invoice unless the Customer is on a COD basis. In the event of late payment, Customer shall be responsible for late charges calculated at the lower of 1.5% per month or the highest rate permitted by law. SISU may, at its option, refuse to provide any Deliverables to Customer if the financial condition of Customer becomes impaired or is unsatisfactory in the discretion of SISU, or if Customer is delinquent in the payment of any account to SISU. All published prices are subject to change without notice. Written quotations shall expire thirty (30) calendar days from the date of quotation unless withdrawn in writing sooner. Oral quotations are provided for budgetary guidance only. Unless otherwise specifically stated, prices are in U.S. Dollars. All orders must be paid in full prior to shipment. Unless otherwise and expressly specified in writing, prices exclude rights to any knowledge or any intellectual property that SISU develops.***TRAINING PRICING, PAYMENTS, AND CANCELLATIONS. Customer must provide SISU seven (7) days’ advanced written notice of training cancellation or full fee will be charged for all registered students. If less than 7 days’ cancellation notice is provided to SISU, including on-site cancellation, then Customer will be charged in full and attendance may be rescheduled within six (6) months of the originally scheduled date. Additionally, any on-site expenses incurred by SISU due to cancellation will be charged to Customer. SISU reserves the right to cancel any class at any time, but will provide at least one week’s notice of cancellation except in case of emergencies, which may necessitate a shorter notice period. SISU is not responsible for non-refundable travel arrangements.
3. Delays and Force Majeure
SISU’s obligations are subject to, and SISU shall not be held responsible for, any delay or failure to perform due to circumstances beyond the reasonable control of SISU, including, but not limited to, acts of Customer, prerequisite work by others, natural disasters or acts of God, acts of war or terror, labor disturbances, delays in transportation, or inability or delay in obtaining suitable Deliverables. In the event of any such occurrence, SISU, at its option, shall be excused from performance hereunder or the performance of SISU shall be correspondingly extended. In the event SISU is delayed by acts or omissions of Customer or by prerequisite work by contractors or suppliers of Customer, SISU shall be entitled to an equitable price adjustment in addition to extension of the time of performance.
4. Termination
SISU may, in its sole discretion, terminate at any time all or any portion of this Contract upon written notice to Customer, with or without cause, in the event Customer shall (i) fail to pay any sums due to SISU under this Contract or otherwise; or (ii) otherwise breach this Contract or any other obligation owing to SISU. Customer may not terminate this Contract, except for cause, without the prior written consent of SISU. Within ten (10) days after the effective date of the termination of this Contract for any reason, Customer shall pay SISU the entire amount of any unpaid balance, which is due for this Contract or in connection with any and all Deliverables provided by SISU hereunder. All Deliverables provided after termination shall be billed at the regular rates of SISU.
5. Choice of Law and Arbitration
(a) This Contract and the relationship of the parties hereto shall be deemed to have been made in and governed by the laws of the State of Texas, without regard to its choice-of-law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Contract. All rights and remedies available to SISU herein or under law or equity are reserved to SISU as cumulative. Except as provided in subparagraph (b), all controversies or claims arising out of this Contract and/or the relationship of the parties shall be resolved exclusively by arbitration in Austin, Texas, such arbitration to be conducted in accordance with the Commercial Rules of the American Arbitration Association before a panel of three (3) arbitrators. The arbitration award is final and binding upon the parties to the arbitration and judgment thereon may be entered in any court having jurisdiction. (b) Notwithstanding the foregoing, SISU reserves the right to seek equitable, including injunctive, relief or to sue to collect any unpaid account balance, in any court of competent jurisdiction.(c) Customer and SISU irrevocably submit to the jurisdiction and venue of the federal and state courts located in Travis County, Texas.
6. Delivery/Schedule
All delivery and service dates are estimates only and are based upon the prompt receipt of all necessary information from Customer. Unless otherwise instructed, SISU will ship goods to Customer via BTX Global (BTX) or similar carrier. When the products are transferred to the carrier, the title and the risk of loss or damage shall pass to Customer. Customer shall be the importer of record for all purchased products, if applicable. Licensing requirements for importation to non-U.S. countries is the sole obligation of Customer. In the absence of specific shipping instructions from the Customer, SISU will ship by the method it deems, in its sole discretion, most advantageous. Transportation charges will be collected prior to shipment. When special packaging or export instructions are requested by the Customer, any additional costs will be the responsibility of Customer. SISU reserves the right to reject certain shipping or packing methods. Unless otherwise agreed in writing by SISU in a service contract or warranty, Customer is responsible for payment of delivery costs, including any costs for expedited delivery. Other portions of the Deliverables may be created or provided at Customer’s facility. In no event shall SISU be responsible or liable for any delays, including any special, incidental, or consequential damages or “down time”.
7. Export Control
If Customer intends to, or shall, export (or re-export), directly or indirectly, any portion of the Deliverables or technical information relating thereto, it is the responsibility of Customer to assure compliance with United States and other export-control laws and regulations and, if appropriate, to secure any required export licenses or approvals in its own name.
8. Use Restrictions
The Deliverables to be provided hereunder must be used in compliance with the directions set forth in safety and operation instructions, manuals, drawings, safety notices and warnings, and other instructions furnished by SISU. The Deliverables are not intended for use in any weapons of mass destruction (nuclear weapon, chemical weapon, biological weapon, or missiles) or other activity where failure or use of the Deliverables could lead directly to death, personal injury, or significant physical, property, or environmental damage. If so used, SISU (and its parent and affiliated companies) disclaim all liability for any damages arising as a result of the risky or hazardous nature of the activity in question, including but not limited to death, personal injury, property damage, or nuclear, chemical, or environmental damage, injury, or contamination. Customer will not cause or permit the modification or reverse engineering of sensor technology, controllers, pendants, cases, or any other products without express written consent from SISU. Customer will not develop tools from SISU products or use non-SISU-approved tools, products, or software with SISU products without express written consent from SISU. Customer will not cause or permit any reverse engineering of any SISU products, whether in whole or in part. Customer will not provide repair services for SISU products without the express written consent from SISU. Customer will not use SISU’s trademarks, including as part of a domain or company name or in keywords or online search optimizations, without express written consent from SISU. Customer represents that it is purchasing goods for purposes falling within Customer’s trade, business, craft, or profession. SISU reserves the right to refuse sale or service to any person or business for any reason that is not exempted by law. Customer further covenants and warrants that it will not claim any right to any knowledge or any intellectual property developed by SISU, even if Customer pays for the development of custom features or systems, submits feedback, or presents ideas that are at any point implemented or used by SISU, unless the information was expressly labeled or expressly identified (at the time it was delivered to or shared with SISU) as knowledge or intellectual property to which Customer had previous ownership rights.
9. Laws and Safety Standards
The Deliverables to be provided hereunder conform to the following compliances and standards: CE Certification, Industrial EMC Standards, Electrical Safety, Emergency Stop Buttons, and Standards Applied to Design. Further information on these standards is available in Appendix A of the SISU LAB Instruction Manual. Even so, the Customer is responsible for ensuring that the Deliverables meet the requirements of all applicable federal, state, local, and regional laws applicable to the Deliverables and their use—including the Occupational Health and Safety Act of 1970 (the Act) and the industrial safety laws applicable where the Deliverables are used. SISU hereby disclaims any liability for any violations of the Act or other applicable regulation or law for safe and healthy operation. Customer shall be responsible for training, requiring, and causing its employees to (i) comply with the directions set forth in safety and operation instructions, manuals, drawings, safety notices and warnings, and other instructions furnished by SISU; (ii) comply with directions set forth in any documented inspections of the Deliverables and their use; (iii) use reasonable care, safety equipment, and all applicable safe guards and safety systems in the set-up, adjustment, operation, maintenance, and repair of the Deliverables; (iv) not remove, disable, or permit anyone to remove or disable safety equipment, safety features, warning placards, labels, or warning signs from the Deliverables; (v) assure that the Deliverables are used in accordance with all applicable laws, regulations, customs, permits, and standards in force.
10. Installation
Customer is responsible for the installation of the Deliverables including, without limitation, all civil engineering work; unloading, unpacking, and proper positioning of the Deliverables; pre-aligning and anchoring the Deliverables; providing and connecting all electrical wiring and electrical connections; and covering the cost of the foregoing. Upon written request, SISU can make a service technician available for consultation to assist Customer with Customer’s installation responsibilities, but Customer is solely responsible for installation and operation of the Deliverables.
11. Sales Tax, Similar Taxes, Tariffs, Duties, and Other Import Charges
In addition to any price specified herein, Customer shall pay, or reimburse SISU for, the gross amount of any present or future sales, use, excise, income, value-added, or other similar tax applicable to the price, sale, furnishing, or use of any Deliverables hereunder, or Customer shall provide SISU with sufficient evidence of tax exemption acceptable to the applicable taxing authorities. Customer is also responsible for all costs of importation, including without limitation tariffs, duties, and the like.
12. Acceptance, Returns, and Exchange Credits
All orders for Deliverables are subject to acceptance by SISU at their Round Rock, Texas facility. Customer shall not return any Deliverables actually delivered to Customer without the consent of and receipt of a Return Authorization Number from SISU. Items returned for credit (other than exchanges) are subject to a 20% restocking fee based on List Price. SISU will provide an exchange credit to Customers who return an exchangeable part that is replaced with a part purchased from SISU. Customers must return the exchangeable part within 30 days of receipt of the new part. Exchangeable parts include, but are not limited, to industrial robots and the following SISU LAB Deliverables: cases, pendants, controllers, control boxes, FIZ motors, welding accessories, and interface modules and are identified by Return Authorizations forms included within the shipment of the new part. Acceptance of these parts and the amount of the exchange credit will be determined after each part is inspected and determined to be repairable by SISU. Any part that is not repairable will be returned/discarded at the Customer’s expense. All parts must be completely assembled and include all parts for exchange credit. These exchange credits will be only applied as directed by Customer and will be valid for 12 months following issuance of the applicable Credit Memo.
13. Express Warranties Created by this Agreement and Disclaimers of all Other Warranties.
(a) For Services, SISU warrants that the Services will be of workmanlike quality and will be performed by qualified personnel.(b) EXCEPT AS OTHERWISE AGREED TO BY SISU IN WRITING, SISU WARRANTS THAT FOR TWELVE (12) MONTHS AFTER DELIVERY (THE “WARRANTY PERIOD”), ALL NEW DELIVERABLES—OTHER THAN THE ROBOT AND ITS CONTROLLER—WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND WILL MEET THEIR PUBLISHED SPECIFICATIONS. THE WARRANTY PERIOD FOR THE ROBOT AND ITS CONTROLLER IS 12 MONTHS AFTER DELIVERY OR REMAINDER OF MANUFACTURER WARRANTY, WHICHEVER IS GREATER. CUSTOMER MUST PAY TRAVEL EXPENSES FOR ANY WARRANTY CLAIM. SISU DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE DELIVERABLES OR SERVICES. FOR ANY AND ALL DELIVERABLES, SISU ALSO SPECIFICALLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS AS TO THEIR (1) MERCHANTABILITY, (2) FITNESS FOR A PARTICULAR PURPOSE, AND (3) NONINFRINGEMENT OF INTELLECTUAL_PROPERTY RIGHTS OF ANY THIRD PARTY. THE SOFTWARE WARRANTY DOES NOT APPLY TO SISU SOFTWARE DEFECTS THAT OCCURRED: (1) FROM INCORRECT SPECIFICATIONS OR INFORMATION SUPPLIED BY CUSTOMER; OR (2) BY ANY MODIFICATION TO THE SOFTWARE PERFORMED BY CUSTOMER OR ANY THIRD PARTY UNLESS SPECIFICALLY AUTHORIZED BY SISU IN ADVANCE.(c) TO THE EXTENT THAT THE DELIVERABLES INCORPORATE THIRD-PARTY HARDWARE OR SOFTWARE, SUCH THIRD-PARTY HARDWARE OR SOFTWARE SHALL BE COVERED ONLY BY THE HARDWARE OR SOFTWARE PROVIDER’S END-USER LICENSE AGREEMENT WARRANTY, AND CUSTOMER’S REMEDIES ARE LIMITED SOLELY TO THOSE SPECIFICALLY CONTAINED THEREIN.(d) Software updates shall be available at no cost to Customer for a period of one (1) year from date of purchase. Updates will include bug fixes, stability improvements, and limited feature additions. Some additional software features may be priced separately and are not included as part of a standard software update. Extended software and maintenance contracts are available for purchase separately. (e) Except as otherwise expressly provided herein, SISU warrants that, to the best of its current knowledge, information, and belief, the Deliverables, their sale, possession, and intended use do not infringe on any patent in the country where the Deliverables are sold. This warranty extends only to infringement claims that pertain to the Deliverables and to methods performed by the Deliverables. This warranty does not extend to any charge of infringement that pertains to an article of manufacture, does not extend to any charge of infringement that arises by reason of use of the Deliverables in conjunction with other machinery not manufactured by SISU, and does not extend to any charge of infringement that arises from use of the Deliverables in the practice of any process involving more than the inherent mode of operation of the Deliverables. SISU reserves the right to discontinue the delivery of any Deliverable, the manufacture, sale or use of which, in its opinion, would or may infringe upon any letters patent now or hereafter issued and under which SISU is not licensed.(f) SISU’s Deliverable Warranty shall be void if: (i) the Deliverable is not stored or handled appropriately; (ii) a defect resulted from damages occurring after delivery of the Deliverable; (iii) a defect was caused by the acts, omissions, or negligence of Customer or a third party; (iv) the Deliverable was incorrectly installed, misused, or altered or was not maintained properly; or (v) the Deliverable is used or exported outside of the country in which they were delivered without notice to and written consent from SISU.(g) Preventive maintenance performed at documented intervals is required to perfect all Deliverable warranties. Preventive maintenance must be provided by SISU-authorized service personnel and, if performed by SISU, will be billed to Customer (or the end-user, as the case may be) at prevailing SISU standard parts, field-service, and travel rates.(h) Replacement parts provided, and Deliverables repaired, under warranty shall be warranted for the greater of: (a) the warranty provided by the third-party manufacturer of the replacement part; or (b) the remainder of the original Warranty Period for the Deliverable.
14. Defective Deliverables and Services: Remedies
(a) Deliverables: If a Deliverable does not conform to the Deliverable Warranty and the warranty is not otherwise excluded as provided herein, then Customer must, as soon as possible, notify SISU in writing of such nonconformance. Upon receipt of such a report, SISU will schedule an inspection of the alleged defective Deliverable. If SISU determines that the Deliverable does not comply with the Deliverable Warranty, then SISU will repair or replace the defective Deliverable at no cost to Customer. SUCH REPAIR OR REPLACEMENT REMEDY IS THE ONLY REMEDY AVAILABLE TO CUSTOMER FOR ANY BREACH OF THE DELIVERABLE WARRANTY AND SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OTHERWISE AVAILABLE TO CUSTOMER AT LAW OR IN EQUITY.(b) Services: If any failure to meet the Service warranty appears within thirty (30) days after the Services are completed, SISU shall again perform, or cure, those Services directly affected by such failure, at SISU’s sole expense. CUSTOMER’S SOLE REMEDY FOR DEFECTIVE SERVICES SHALL BE LIMITED TO THE COST OF REPERFORMING OR CURING SUCH SERVICES. IN ORDER TO RECEIVE THIS REMEDY, CUSTOMER MUST NOTIFY SISU, IN WRITING, OF ANY CLAIMED DEFICIENCY WITHIN THIRTY (30) DAYS OF COMPLETION OF THE SERVICES. THE REMEDY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OTHERWISE AVAILABLE TO CUSTOMER AT LAW OR IN EQUITY.
15. Returns: Cancellation by Customer
(a) No Deliverable may be returned to SISU without SISU’s prior written consent. (b) Returned Deliverables must be securely packed by Buyer to reach SISU without damage. Buyer must obtain a Return Authorization Number from SISU prior to returning any Deliverable. Buyer is solely responsible for the costs and risks of returning the Deliverable to SISU. Risk of loss for the returned Deliverable will transfer to SISU when the Deliverable has been unloaded onto SISU’s factory floor. Reimbursement for returned Deliverables shall not in any case exceed the full credit of the purchase price less all application specific engineering expenses, raw materials, and/or supplies used, plus a twenty percent (20%) restocking fee. (c) Buyer’s purchase order shall not, for any reason, be cancelled by Buyer without SISU’s prior written consent, which consent SISU may withhold in its sole discretion. If SISU consents to such a cancellation, Buyer shall pay SISU as follows: all engineering expenses, work in process, and any raw materials or supplies used, or for which commitments have been made by SISU in connection with such cancelled order (paid for on the basis of SISU’s full cost), plus a cancellation premium of fifteen (15%) percent of the full price of the order. No software may be returned. (d) SISU SHALL AT ITS OWN CHOICE REPAIR OR DELIVER AGAIN ANY GOODS DELIVERED IN A FAULTY OR DEFICIENT CONDITION OR REPEAT THE PROVISION OF SERVICE. IN CASE OF GOODS THAT MAY BE RETURNED TO SISU WITHOUT ANY UNREASONABLY HIGH COSTS, DEFECTS SHALL BE REMEDIED AT SISU’S PREMISES. CUSTOMER SHALL PROPERLY PACKAGE GOODS AND RETURN THEM TOGETHER WITH THE APPROPRIATE FITTINGS. IF THE OBJECT IS NOT IN THE PLACE OF PROPER USE, ANY EXTRA COSTS OF REPAIR SHALL BE BORNE BY CUSTOMER, INCLUDING BUT NOT LIMITED TO ANY INCREASED TRANSPORTATION AND TRAVEL COSTS. IN THE COURSE OF REMEDYING OF DEFECTS, CUSTOMER SHALL PROVIDE SISU WITH THE TIME AND OPPORTUNITY FOR FAIR ASSESSMENT. SHOULD CUSTOMER REFUSE TO DO SO, SISU SHALL NOT BE CONSIDERED IN DELAY IN REMEDYING THE DEFECT.
16. Limitation of Liability; Exclusive Remedies
IN NO EVENT SHALL SISU BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOSS OF REVENUE OR PROFITS, LOSS OF GOODWILL, “DOWN TIME” OR BUSINESS INTERRUPTION, DAMAGE TO COMPUTERS, DAMAGE TO SYSTEMS, DAMAGE TO NETWORKS, INCREASED COST OF OPERATION, DAMAGE TO EQUIPMENT OR PROPERTY, COST OF CAPITAL, COST TO SUBSTITUTE EQUIPMENT, COST TO FACILITIES, COST OF SERVICES, CLAIMS OF CUSTOMER’S CUSTOMERS, INTANGIBLE LOSSES, OR DAMAGES OR PENALTIES RESULTING FROM CUSTOMER’S CONTRACTS WITH ITS CUSTOMERS (COLLECTIVELY, “LIMITED LOSSES”), WHETHER SUCH LIMITED LOSSES ARISE OUT OF WARRANTY, CONTRACT, INDEMNITY, EQUITY, STRICT LIABILITY, OR TORT, AND WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR FAULT OF SISU, AND REGARDLESS OF ANY OTHER LEGAL THEORY UPON WHICH THE CLAIM IS BASED AND REGARDLESS OF WHETHER SISU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIMITED LOSSES OR OTHER DAMAGE. IN NO EVENT MAY CUSTOMER SEEK, BE ENTITLED TO, OR RECOVER PUNITIVE OR EXEMPLARY DAMAGES, NOR SHALL SISU BE LIABLE FOR SUCH DAMAGES. NO CLAIM ARISING OUT OF ANY CLAIMED BREACH OR RELATING TO THE DELIVERABLES MAY BE BROUGHT BY CUSTOMER MORE THAN 365 DAYS (366 DAY IN A LEAP YEAR) AFTER THE DATE ON WHICH THE EVENTS GIVING RISE TO SUCH CLAIM OCCURS.INDEPENDENTLY, SISU SHALL NOT BE LIABLE FOR ANY ALLEGED OR ACTUAL NEGLIGENT, RECKLESS, OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, NOR SHALL IT BE LIABLE FOR ANY NONCOMPLIANCE WITH ANY OF THE TERMS OF THIS CONTRACT OR INSTRUCTION MANUALS, INCLUDING WITHOUT LIMITATION THE SISU LAB MANUAL (WHETHER VERSION 1.0 OR ANY SUBSEQUENT VERSION MADE AVAILABLE TO CUSTOMER) OR SISU LAB INSTRUCTION MANUAL (WHETHER VERSION 1.0 OR ANY SUBSEQUENT VERSION MADE AVAILABLE TO CUSTOMER).THE MAXIMUM LIABILITY OF SISU, AND CUSTOMER’S SOLE REMEDY, WITH RESPECT TO ANY ASSERTION THAT ANY DELIVERABLES ARE DEFECTIVE OR NONCONFORMING SHALL BE, AT SISU’S SOLE ELECTION: (1) REPAIR OR REPLACEMENT OF ANY PARTICULAR DELIVERABLE OR PROVISION OF SUPPORT SERVICES WITHIN NINETY (90) DAYS FOLLOWING SISU’S INITIAL PROVISION OF THE DELIVERABLES TO CUSTOMER, OR (2) RETURN OF THE CONTRACT PRICE PAID FOR THE PARTICULAR DELIVERABLES PROVIDED UNDER THIS CONTRACT. SISU SHALL NOT BE RESPONSIBLE FOR ANY DELIVERABLES THAT HAVE BEEN SUBJECT TO ABUSE, MISUSE, IMPROPER INSTALLATION, OR MAINTENANCE OR FOR DELIVERABLES THAT HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, REPAIRED, OR SERVICED BY ANY PARTY OTHER THAN SISU. IN NO EVENT MAY CUSTOMER ASSERT THAT THE REMEDIES PROVIDED HEREIN ARE INADEQUATE OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. CUSTOMER DISCLAIMS ANY RELIANCE UPON ANY WRITTEN OR ORAL STATEMENT EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT.EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, THE MAXIMUM TOTAL LIABILITY OF SISU (AND OUR AFFILIATES, LICENSORS, SUPPLIERS, DISTRIBUTORS, AND AGENTS) TO CUSTOMER—AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM RELATED TO THE DELIVERABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE—IS THE GREATER OF THE AMOUNT CUSTOMER PAID FOR THE DELIVERABLES OR $100.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.FURTHER, CUSTOMER AGREES TO BIND ITS CUSTOMERS TO THIS LIMITATION OF LIABILITY AS PART OF OFFERING OR PROVIDING TO ITS CUSTOMERS ANY GOODS OR SERVICES RELATED TO OR INVOLVING THE DELIVERABLES.
17. Indemnity; Advancement of Defense Expenses
CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SISU AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, THE “SISU INDEMNITEES” AND EACH A “SISU INDEMNITEE”) FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION, LAWSUITS, ARBITRATIONS AND OTHER LEGAL PROCEEDINGS, LOSSES, DAMAGES, PENALTIES, INJURIES, AND COSTS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS, (COLLECTIVELY, “DAMAGES”) TO THE EXTENT ARISING FROM OR RELATED TO (1) THE ACTS OR OMMISSIONS OF CUSTOMER OR ITS EMPLOYEES OR AGENTS, INCLUDING ANY ALLEGED OR ACTUAL NEGLIGENT, RECKLESS, OR INTENTIONAL ACTS OR OMISSIONS OR NONCOMPLIANCE WITH ANY OF THE TERMS OF THIS CONTRACT OR INSTRUCTION MANUALS (INCLUDING WITHOUT LIMITATION THE SISU LAB MANUAL, VERSION 1.0, OR SISU LAB INSTRUCTION MANUAL, VERSION 1.0), AND ALSO INCLUDING ANY ALLEGED OR ACTUAL INJURIES TO PERSON OR PROPERTY OR (2) ALL CLAIMS FOR DAMAGES EXCLUDED IN THE LIMITATION OF LIABILITY CONTAINED IN PARAGRAPH 14 ABOVE, INCLUDING CLAIMS OF CUSTOMER’S CUSTOMERS, REGARDLESS OF WHETHER SISU WAS CONTRIBUTORILY NEGLIGENT OR HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES. FURTHER, UPON WRITTEN REQUEST FROM SISU, CUSTOMER SHALL ADVANCE, ON A CURRENT BASIS, SUCH SISU INDEMNITEE’S DEFENSE EXPENSES RELATED TO ANY CLAIMS OR DAMAGES FOR WHICH THE INDEMNITY OBLIGATIONS OF THIS PARAGRAPH ARE INVOKED BY SISU. IN THIS PARAGRAPH, THE PHRASE “DEFENSE EXPENSES” INCLUDES REASONABLE LEGAL FEES, EXPENSES, AND COSTS INCURRED IN THE DEFENSE OF ANY CLAIM, CAUSE OF ACTION, LAWSUIT, ARBITRATION OR OTHER LEGAL PROCEEDING, LOSSES, DAMAGES, PENALTIES, INJURIES, AND COSTS.FURTHER, CUSTOMER AGREES TO BIND ITS CUSTOMERS TO THE INDEMNITY AND ADVANCEMENT OBLIGATIONS CONTAINED IN PARAGRAPH 15 AS PART OF OFFERING OR PROVIDING TO ITS CUSTOMERS ANY GOODS OR SERVICES RELATED TO OR INVOLVING THE DELIVERABLES.
18. Testing and Support
The conditions of any tests, including specification or acceptance testing, shall be mutually agreed upon in writing, and SISU shall be notified of, and reserves the right to be present or represented at, all tests that may be conducted. In no case does any remedy or warranty, if any, apply to any failure or nonconformance with a specification caused by or attributable to any associated or complementary products or service not supplied by SISU under this Contract, nor shall any such remedy or warranty in any case apply to the quality of Customer’s own products or Customer’s process of manufacture on which any Deliverables are used.
19. Warranty Services
Subject to the terms and conditions of the Warranty, when requested by Customer during the Warranty Period and subject to SISU’s acceptance, SISU agrees to provide service by factory-trained technicians to the Covered Equipment and to provide replacement parts where necessary, which may be new and/or refurbished, to bring the Covered Equipment back to operational condition, excluding consumable parts and except as otherwise excluded under this Contract. A list of consumable and excluded parts is available upon request. Service including telephonic troubleshooting coverage shall be provided during SISU’s regular business hours, from 8:30 a.m. to 5:00 p.m. (CST), Monday through Friday. Warranty service may, at the discretion of SISU, be performed after regular business hours, or on Saturday, Sunday, or SISU-observed holidays. SISU cannot guarantee the time of or time to provide any Deliverables including the provision of parts. Customer will be charged for reasonable travel and lodging expenses when warranty service is provided at Equipment Location. Customer is responsible for any shipping or transportation costs to send Equipment to SISU’s location for repair. Reasonable shipping charges for parts replaced under warranty shall be the responsibility of SISU, subject to the terms hereof. At SISU’s request and expense, within 30 days Customer shall return to SISU any failed part replaced. SISU’s obligation to pay for shipping expenses for any part return shall apply only during the Warranty Period. In the event that a failed part is not returned to SISU within such 30-day period, Customer agrees to pay SISU the current selling price and shipping charges for the replacement part. Upon request, SISU will use reasonable efforts to expedite delivery of in-stock replacement parts, subject to a $250.00 non-refundable handling fee for parts ordered during non-SISU regular business hours. Customer is responsible for payment of all delivery charges, including expedited charges. Service is limited to covered Deliverables. Due to the inherent limitations of telephone troubleshooting, SISU makes no warranty or guaranty concerning the accuracy of any diagnostics or other telephone support. The Warranty Period shall take effect upon delivery of Equipment to Customer by SISU and shall continue in full force and effect for the Warranty Period specified on the front page hereof. Customer responsibilities: Prior to requesting that SISU provide any services, hereunder, Customer shall ensure that the relevant control system and/or other equipment has been properly installed, located and interconnected. Customer shall allocate sufficient time for the provision of Deliverables by SISU, and provide SISU personnel with prompt and safe access to the Covered Equipment and other equipment. Customer shall be invoiced at SISU’s regular rates for any delays caused by Customer’s failure to provide SISU proper access to the Covered Equipment and other equipment. Customer shall provide, at its sole expense, standard utilities, machine tool operators and other craft labor and equipment necessary for SISU’s performance hereunder. Excluded services: Notwithstanding the foregoing, for all warranty service, SISU shall not be responsible to provide Deliverables under this Warranty, and SISU will bill Customer for Deliverables provided to Customer at SISU’s regular rates and Customer agrees to pay at such rates, where there is a malfunction or shutdown of machinery caused by one or more of the following: (1) a failure or malfunction of other than the Covered Equipment; (2) Customer’s failure to perform appropriate preventative maintenance; (3) improper operating procedures or misuse or abuse of the Covered Equipment or related machinery; or (4) unauthorized modifications, alterations, or service of the Covered Equipment. Additionally, if replacement parts for the Covered Equipment are no longer manufactured or otherwise reasonably available, SISU may offer to repair the part at SISU’s facility. In such event, Customer shall be responsible for all shipping and transportation charges (including return) of the part. SISU makes no warranty that the Covered Equipment or part can be repaired.
20. Additional Terms
This Contract shall not be assigned by Customer without SISU’s express written consent. This Contract shall be binding upon the successors and legal representatives of Customer. Any information transmitted by Customer to SISU is not to be regarded as proprietary or confidential except as may be otherwise agreed in writing signed by an authorized representative of SISU. The representative of Customer accepting this Contract represents and warrants that he or she has full authority on behalf of Customer to do so. Any information transmitted by SISU to Customer—including information that can be or could have been gleaned by inspection of deliverables at SISU’s facility, at any point in time before or after delivery to Customer’s facility—shall not constitute a transfer or ownership of such information. Unless expressly granted to Customer in a written statement of work, all rights and privileges to the knowledge and intellectual property regarding, relating to, or contained in deliverables shall belong to SISU.