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Terms and Conditions ALE USA Inc.

NOTICE: Unless Customer and ALE USA Inc. otherwise are parties to a master governing agreement then the terms and condition of sale contained herein shall apply to all purchase orders accepted by ALE USA Inc. If these terms and conditions conflict with ALE USA Inc.’s acceptance of Customer’s order is conditioned upon Customer’s acceptance of these terms and conditions irrespective of whether Customer accepts them in writing, by implication or by acceptance of and payment for product and services sold or software licensed hereunder and irrespective of when the purchase order or procurement document is issued or whether it precedes or follows issuance of this acknowledgement form. ALE USA Inc.’s failure to object to provisions contained in any communications from Customer shall not be deemed a waiver of the provision herein. These terms and conditions are deemed accepted by Customer if not objected to in writing within 5 calendar days after the date hereof.

1. PRICES AND TAXES – Unless expressly stated to the contrary, ALE USA Inc.’s prices include standard packing for domestic shipments, but do not include charges for related transportation costs. ALE USA Inc. will prepay transportation costs and invoice them to Customer. Prices for products and software do not include charges for services (e.g. engineering and installation). Except for taxes on ALE USA Inc.’s income, Customer shall pay all applicable taxes and related charges, including any interest and penalties, that any governmental or taxing authority may impose upon the purchase, license, ownership, possession, use, operation or relocation of any product or software that ALE USA Inc. furnishes pursuant to these terms and conditions.

2. INVOICING & TERMS OF PAYMENT – ALE USA Inc. shall invoice Customer all amounts due (including transportation charges and taxes) for products and software upon shipment. ALE USA Inc. will invoice all amounts due for maintenance, management and other recurring services in advance and charges for engineering, installation, and other nonrecurring services as incurred. Upon and subject to credit approval by ALE USA Inc., payment terms shall be net 30 days after the invoice date. Customer shall notify ALE USA Inc. of any billing discrepancies within 10 days after receiving it. Overdue payments shall be subject to a late payment charge of 1½% per month of the overdue amount. Customer will reimburse ALE USA Inc. for reasonable attorneys’ fees and other costs associated with collecting delinquent payments. If at any time Customer is delinquent in the payment of any invoice, or otherwise in breach of these terms and conditions, ALE USA Inc. may, at its discretion, and without prejudice to its other rights, withhold shipment (including partial shipments) and/or suspend performance on any purchase order. Customer hereby grants ALE USA Inc. a security interest in all products and software, and all proceeds of them in any form to secure payment and performance of all obligations of Customer to these terms and conditions.

3. GRANT OF LICENSE – Upon delivery of software, ALE USA Inc. grants Customer a personal, nontransferable and nonexclusive license to use the software on or with the corresponding product(s) (on which the software was loaded or designated by ALE USA Inc. to be loaded) for Customer’s own internal operations in the United States. If the product(s) on which the software was loaded or designated by ALE USA Inc. to be loaded become inoperative, Customer may use the software temporarily on a backup processor until the original processor is restored. Customer shall not reverse engineer, decompile or disassemble software furnished as object code to generate corresponding source code, nor shall Customer sublicense or distribute the software. Customer shall not copy software except for backup and archival purposes. Customer shall reproduce and include ALE USA Inc.’s (or its licensor’s) copyright and proprietary notice on all such necessary copies of software. Customer shall maintain records of the number and location of all copies of software. ALE USA Inc. may, at its discretion, electronically audit software provided hereunder to verify compliance with the license provisions. If Customer’s license is canceled or terminated, or when Customer no longer uses the software, Customer shall return or destroy the software and all copies and certify to ALE USA Inc. that it has done so. If these terms and conditions differ from the terms of any license agreement packaged with software, the terms of the license agreement in the packaged software shall govern. ALE USA Inc.’s licensors shall be third party beneficiaries of this agreement with respect to their software.

4. WARRANTY

  1. A. During the Warranty Period, ALE USA Inc. warrants to Customer only only that (i) products purchased hereunder and manufactured by ALE USA Inc. (including those manufactured for ALE USA Inc. by a contract manufacturer based on a ALE USA Inc. procurement specification) will be free from defects in material and workmanship and will conform to ALE USA Inc.’s specifications for such products; and (ii) software developed by ALE USA Inc. will be free from those defects which materially affect performance in accordance with ALE USA Inc.’s specifications and (iii) at the time of performance, services will be performed in a workmanlike manner and in accordance with good industry practice in the community in which services are provided. With respect to products or software or partially assembled products furnished by ALE USA Inc. but not manufactured by ALE USA Inc., ALE USA Inc. hereby assigns to Customer, to the extent permitted, the warranties given to ALE USA Inc. by its vendors of such items
  2. "Warranty Period" means the applicable period of time that a particular product or software is warranted. The warranty period is 12 months for products and 90 days for software. For a product or software, the Warranty Period begins on the date of shipment unless ALE USA Inc. installs, in which case, the Warranty Period begins on the date ALE USA Inc. completes installation.
  3. C. If, under normal and proper use, a defect or non conformity appears in a product or software during the applicable Warranty Period and Customer promptly notifies ALE USA Inc. in writing during the Warranty Period of such defect or non conformance and follows ALE USA Inc. instructions regarding return of such defective or non conforming product or software, then ALE USA Inc., at its option, will, at no charge to Customer or its end-user customer, (i) repair, replace, or correct the same at its manufacturing or repair facility; or (ii) if ALE USA Inc. determines that it is unable for any reason to repair or correct the product or software, provide a credit on future purchases not to exceed the original purchase price or license fee. If services performed by ALE USA Inc. prove not to have been so performed, and Customer notifies ALE USA Inc. to that effect within 10 business days commencing on the date of the performance of the service giving rise to the claim then ALE USA Inc., at its option, either will correct all confirmed defects and deficiencies in the performance of the services or render a credit for the defective or non-conforming portion of the services based on the original charge for the services.
  4. D. No product or software will be accepted for repair or replacement without the written authorization of and in accordance with instructions from ALE USA Inc. Removal and reinstallation expenses as well as transportation expenses associated with returning such product or software to ALE USA Inc. shall be borne by Customer. ALE USA Inc. shall pay the costs of transportation of the repaired or replaced product or software to any destination within the United States. If ALE USA Inc. determines that any returned product or software is not defective, Customer shall pay ALE USA Inc.’s costs of handling, inspection, testing and transportation and, if applicable, travel and living expenses. In repairing or replacing any product, part of product, or software medium under this warranty, ALE USA Inc. may use new, remanufactured, reconditioned, refurbished or functionally equivalent products, parts or software media. If ALE USA Inc. ascertains that a product is not readily returnable for repair, at its option, ALE USA Inc. may elect to repair or replace the product at Customer's site. Customer, at its expense, shall make the products accessible for repair or replacement and shall restore the site after ALE USA Inc. has completed its repairs or replacement.
  5. E. ALE USA Inc. makes no warranty with respect to defective conditions or non conformities resulting from any of the following: Customer's modifications, misuse, neglect, accident or abuse; improper wiring, repairing, splicing, alteration, installation, storage or maintenance not performed by ALE USA Inc.; use in a manner not in accordance with ALE USA Inc.'s or its contract manufacturer's specifications or operating instructions; failure of Customer to apply previously applicable ALE USA Inc. modifications or corrections; or items not manufactured by ALE USA Inc. or purchased by ALE USA Inc. pursuant to its procurement specifications. In addition, ALE USA Inc. makes no warranty with respect to products that have had their serial numbers or month and year of manufacture removed or altered; with respect to expendable items, including, without limitation, fuses, light bulbs, and motor brushes; or with respect to defects related to Customer's or its end-user customer’s data base errors. No warranty is made that software will run uninterrupted or error free.
  6. F. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GRANTED IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (WHETHER WRITTEN, ORAL, STATUTORY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER’S AND ITS END-USER CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ALE USA Inc.’S SOLE OBLIGATION HEREUNDER, SHALL BE, AT ALE USA Inc.’S OPTION, TO REPAIR, REPLACE, OR CREDIT AS SET FORTH ABOVE.

5. INFRINGEMENT

  1. A. ALE USA Inc. will: (i) defend or settle, at its own expense, any claim against Customer alleging that any products or software furnished hereunder infringes any United States patent or copyright; and (ii) will pay all damages and costs that by final judgment may be assessed against Customer due to such infringement. ALE USA Inc.’s obligation is expressly conditioned upon: (a) Customer’s prompt written notice to ALE USA Inc. of such claim; (b) ALE USA Inc.’s sole control of the defense or settlement of such claim; (c) Customer’s full cooperation with ALE USA Inc. to facilitate the settlement or defense of such claim; and (d) the claim not arising from Customer’s modifications, or from use or combinations of products or software with non-ALE USA Inc. products or software.
  2. B. ALE USA Inc. shall have the right, at its option and expense to: (i) procure for Customer the right to continue using the products or software; (ii) replace or modify the products or software with a non-infringing product or software that is functionally equivalent in all material respects; or (iii) refund the purchase price or one-time software license fee less a reasonable allowance for use.

6. CUSTOMER REMEDIES – Customer's exclusive remedies and the entire liability of ALE USA Inc. and its affiliates and their respective employees, directors, officers, agents, and suppliers for any and all claims, losses, damages and expenses (including attorneys’ fees) (“Losses”) of Customer or any other person arising out of this agreement or the use or performance of any product or software, whether in an action for or arising out of breach of contract, tort, including negligence, indemnity, or strict liability, shall be as follows: (i) for Infringement Claims --the remedy set forth in the "Infringement" Section; (ii) for the non-performance of or defects in products or software - the remedy set forth in the "Warranty" Section; (iii) for tangible property damage and personal injury caused by ALE USA Inc.'s acts or omissions the amount of the proven direct damages; and (iv) for everything other than as set forth above - the amount of the proven direct damages not to exceed the lesser of the price or fee of the applicable product or software or $100,000 for all occurrences. Customer shall give ALE USA Inc. prompt written notice of any claim. Any action or proceeding against ALE USA Inc. must be brought within 24 months after the cause of action accrues. In no event shall ALE USA Inc.’s and its affiliates’ liability for any individual Loss arising out of this agreement or the use or performance of anything furnished hereunder exceed the applicable price, charge or fee for the product or software paid by Customer under this agreement giving rise to such Loss, and in no event shall ALE USA Inc.’s and its affiliates’ cumulative liability for all Losses arising out of this agreement exceed the total amount of prices, charges and fees paid by Customer under this agreement. Notwithstanding any other provision of this agreement, ALE USA Inc. and its affiliates and their respective employees, directors, officers, agents, and suppliers shall not be liable for any incidental, indirect, consequential, or exemplary damages or for any lost profits, revenues, goodwill or savings arising out of this agreement, or resulting from the use or performance of any product or software, whether in an action for breach of contract, tort, including negligence, indemnity or strict liability. This Section shall survive failure of an exclusive or limited remedy.

7. EXPORT CONTROL – Customer acknowledges that products, software, and technical information (including, but not limited to, services and training) provided hereunder are subject to U.S. export laws and regulations and any use or transfer of such products, software, and technical information must be authorized under those laws and regulations. Customer agrees not to use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by ALE USA Inc., Customer will sign written assurances and other export-related documents as may be required for ALE USA Inc. to comply with U.S. export regulations.

GENERAL

  1. All request for returns for other than warranty issues must be submitted within 30 DAYS of the original delivery. No credit will be issued on claims submitted after that time period. Parts that are required to be returned for credit must be received by Alcatel-Lucent Enterprise USA within 15 days of filing claim. If parts have not been received within this 15 day period the request will be closed with no credit issued. No RMA request will be allowed for software that has been opened and used. All boxes should be returned in original packaging unopened if opened then they are subject to a 25% restocking fee. All third party products are bought on a non-return policy.
  2. Title to products only and risk of loss and damage to products and software shall pass to Customer upon shipment. ALE USA Inc. retains title to all software and all copies thereof.
  3. Products and software will be deemed accepted upon shipment to Customer. Products and software for which installation by ALE USA Inc. is required by ALE USA Inc. will deemed accepted upon ALE USA Inc.’s notifications of installation complete and verification that the products and software comply with their ALE USA Inc.’s specifications.
  4. If Customer fails to perform any material term or condition of this agreement (including any payment obligation) and such failure continues for 30 days (except for payment obligations which shall be 10 days) after receipt of written notice, Customer shall be in default and ALE USA Inc. may terminate this agreement and exercise any available rights. Upon such termination, Customer shall be liable for cancellation and/or termination charges and any other applicable charges.
  5. This agreement shall be governed by the laws of the State of New York, exclusive of its choice of law and rules.
  6. Customer certifies that the products and software are intended for its use within the United States in the ordinary course of business and not for the purpose of resale.
  7. Customer may not assign this agreement or any of Customer’s rights or obligations hereunder without ALE USA Inc.’s prior written consent. ALE USA Inc. may assign this agreement to Alcatel Lucent Enterprise USA, Inc. or to any party that acquires all or substantially all of the assets of the Alcatel Lucent Enterprise business division with or without prior written notice to Customer and without first obtaining Customer’s consent, and, at any time, may assign its right to receive payment to any party. ALE USA Inc. may subcontract work to be performed under this agreement but shall remain responsible for the work.
  8. Neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, inability to secure raw material or transportation facilities, act or omission of carriers or any other causes beyond its control whether or not similar to the foregoing.
  9. No course of dealing or failure of either party to strictly enforce any term, right or condition hereof shall be construed as a waiver of such term, right or condition.
  10. At any time prior to delivery, ALE USA Inc. may make changes to the products or software in whole or in part including any electrical or mechanical design refinements that ALE USA Inc. deems appropriate, or as required by law or concerns of safety. ALE USA Inc. shall not be obligated to modify or change any product previously delivered or to supply products in accordance with earlier specifications. Changes to any customer order shall be in accordance with ALE USA Inc.’s change order process.
  11. All technical and business information (including software), in whatever form, marked proprietary or confidential, or, if not in tangible form, described as being proprietary or confidential at the time of disclosure and subsequently summarized in writing so marked and delivered to the receiving party within 30 days of disclosure to the receiving party (“Information”) shall remain the property of the disclosing party. The disclosing party grants the receiving party the right to use such Information only as follows: such Information (i) shall not be reproduced or copied, in whole or part, except for use as authorized herein; and (ii) shall, together with any full or partial copies thereof, be returned or destroyed when no longer needed. The receiving party shall use such Information only for purposes of its performance under this form and shall treat and protect such Information in the same manner as it treats its own information of like character, but in no event less than reasonable care. The receiving party may disclose such Information to other persons solely to enable such third party to perform acts which this section expressly authorizes the receiving party to perform provided such other person agrees in writing (a copy of which writing will be provided to the disclosing party at its request) to the same conditions respecting use of Information.
  12. ALE USA Inc.’S ACCEPTANCE OF CUSTOMER’S PURCHASE ORDER IS CONDITIONED ON THE FOLLOWING: THIS ACKNOWLEDGENT FORM IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR COMMUNICATIONS, AGREEMENTS (OTHER THAN NON-DISCLOSURE AGREEMENTS) OR PROPOSALS, ORAL OR WRITTEN, RELATING TO THIS SUBJECT MATTER. ANY TERMS ON A PURCHASE ORDER, OTHER THAN A DESCRIPTION OF THE PRODUCT AND/OR SOFTWARE AND QUANTITY ORDERED, ARE NULL AND VOID.
Terms and Conditions ALE USA Inc.