ALLISON TRANSMISSION, INC.
TERMS AND CONDITIONS OF SALE
ALLISON TRANSMISSION, INC ’s ACCEPTANCE OF BUYER'S PURCHASE ORDER IS EXPRESSLYCONDITIONED ON THE BUYER'S ASSENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS AND
CONDITIONS
The terms "purchase order" or "order" for the purposes of these Terms and Conditions of Sale (hereinafter"Agreement") include the term "request for quotation," as appropriate The following are terms and conditions bywhich Allison Transmission, Inc ("Seller") will sell its products to Buyer Receipt of this Agreement by Buyerwithout prompt written objection thereto shall constitute an acceptance of this Agreement by Buyer This
Agreement shall supersede all written or printed terms set forth in any purchase order issued by Buyer This
Agreement supersedes all prior written understandings, assurances, and offers No reference herein to Buyer'spurchase order shall in any way incorporate different or additional terms or conditions which are hereby objectedto No terms or conditions other than those stated herein, and no agreement or understanding, oral or written, in
any way purporting to modify the terms and conditions of this Agreement shall be binding on Seller unlessexpressly accepted in writing by a duly authorized representative of Seller
1 PRICES AND PAYMENT:(a) The prices specified herein or otherwise stated, in writing, by Seller are subject to change, without notice, toprices in effect at the time of each shipment Seller shall submit invoices to Buyer stating amounts due Payment
terms are "Net 30 Days", unless otherwise agreed to, in writing, by Seller Payment shall be made in United States
dollar and received by the Seller on or before the due dates(b) The prices of products are exclusive of all applicable taxes (including without limitation, value added tax(VAT), local and central sales tax and service tax and other taxes, octroi, entry tax, charges, if any) which shall be
additional Any tax imposed by any governmental authority on the sale of products referred to in this Agreement
shall be paid by Buyer, in addition to the selling price specified by Seller Any and all additional charges, such as,
but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, as well
as for certifications, shall be the responsibility of Buyer and shall be borne by Buyer(c) Seller reserves the right to assess, at its discretion, a late payment charge equal to eighteen percent (18%) perannum on past due balances owed Seller upon failure of Buyer to comply with this Agreement Provided however,that in the event that applicable governmental law sets a maximum rate for late payment fees which is less thaneighteen percent (18%) per annum, then the late payment charge assessed hereunder shall be set at the maximum
rate permitted by law(d) All prices as set out in Seller’s price list are subject to change without notice and are not guaranteed againstchange Printing and clerical errors made by Seller on a quotation, an acknowledgement or an invoice shall be
subject to correction In the event of a price change, orders on hand will be invoiced at prices effective at date oforder receipt All prices quoted for specific supplies, in writing, by Seller are only valid for acceptance andplacement of order within a fixed period as stated on the quotation Upon request, Seller will re-quote when theacceptance period has lapsed
2 INSPECTION, DELIVERY, SHIPPING, AND PACKING:(a) Inspection of products shall be done by Buyer or its assigned representative at Buyer's facility Inspection ofproducts, including final inspection of completed products or in-process inspection of products, at Seller's facility
is not permitted unless approved by Seller in advance in writing(b) Delivery schedules are based upon current production capacities, material or component availability, andinventory, and may be changed by Seller as conditions require Seller shall not be liable for any consequences ofany delay in meeting those estimated delivery dates/ schedules(c) Where the Buyer is located in the United States, all products shall be sold “F O B Origin, Seller's factory,
Indianapolis, Indiana ” Where the Buyer is located outside of the United States, all products shall be sold“Incoterms 2000, Ex-works, Seller's factory, Indianapolis, Indiana ” In either instance, title and risk of loss shallpass to Buyer upon delivery to the carrier at Seller's factory(d) All claims for loss or damage to products while in the care, custody, and/or control of a carrier shall be theresponsibility of Buyer, who shall submit any claims to that carrier(e) Shipments hereunder shall be at all times subject to the approval of Seller's Credit Department When deemednecessary, Seller may require Buyer to provide pre-payment or documentary credit before shipment of the products
will take place(f) Seller shall pack, mark, and ship the products according to its standard commercial procedures for shipment,
unless the parties agree, in writing, that Seller shall comply with any special instructions provided by BuyerCompliance with special instructions or other special services requested by Buyer and accepted by Seller may
result in an increased price and will be separately charged to Buyer
3 RETENTION OF TITLE: Seller expressly retains title and ownership of the products until Buyer has fulfilled
all its obligations arising out of the Agreement and any other agreements entered into with Seller or any othermonetary obligations Buyer has towards Seller Until full payment has been received by Seller, Buyer in notentitled to give third parties a security interest in the products
4 PRODUCT CHANGES:(a) All orders are subject to approval and acceptance in writing by a duly authorized representative of Seller The
Agreement between the parties is deemed to be effective only when Seller confirms its acceptance to an order inwriting Seller reserves the right to change without notice the design of, the quality system, or the process ofmanufacturing, the products covered by this Agreement; provided that the foregoing shall not be construed asrelieving Seller from its obligation to deliver products which conform to any statutory regulations or previously
agreed to specifications, drawings, and prints which Seller has furnished to Buyer Seller will design, manufacture,assemble and test all product in accordance with Seller’s quality system unless otherwise agreed to in writing with
the Buyer(b) If Buyer desires product process or quality system changes, Buyer shall submit a written request to Seller forconsideration Within a reasonable period thereafter, Seller shall notify Buyer of its acceptance or rejection of theproposal Seller's failure to notify Buyer of Buyer's proposed changes means Seller has rejected Buyer's proposal
If Buyer's request for changes is accepted by Seller, and the changes cause an increase or decrease in the cost ofthe product or the delivery schedule, Buyer shall make, in writing, an equitable adjustment in the price or delivery
schedule, or both that is acceptable to Seller
5 TECHNICAL INFORMATION:(a) All engineering designs, specifications processes and quality system data provided by Seller are proprietaryand shall not be disclosed or reused by Buyer without the prior written consent of Seller(b) Seller makes available to Buyer "Tech Data" via the Seller extranet The "Tech Data" provides applicationand installation guidelines for Seller's products These guidelines provide the minimum acceptable
standards/requirements for product operation and durability under normal vocational usage It is the responsibilityof the Buyer to follow and comply with Seller's Tech Data and otherwise properly integrate the products into theoverall vehicle design and performance It is also the Buyer's responsibility to ensure that the vehicle meets all
applicable government regulations and customer requirements in all operating environments to which the vehicle
will be subjected(c) Seller also publishes Operator's Manuals and warning placards for many of its products The Operator's Manualand placards contain important information concerning the safe and proper operation and maintenance of theproducts It is the Buyer's responsibility to properly communicate this important information to the vehicle'soperator or end user While many Buyer's choose to incorporate this information into their own vehicle manuals
and warnings, the Operator's Manual and placards are available from Seller upon request
6 WARRANTY:(a) Seller's Standard Commercial Warranty relating to products is applicable to this Agreement(b) NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE
PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE(c) The provisions of this warranty shall not apply to products (1) used for the purposes for which they are notdesigned or intended; (2) which have been repaired or altered without Seller's prior written consent; (3) which havebeen subjected to misuse, negligence, accident, or improper installation; or (4) which, based on Seller'sexamination, do not disclose to Seller's satisfaction nonconformance to the warranty
7 BUYER'S REMEDIES: The Buyer's exclusive and sole remedy on account of or in respect of the furnishingof products that do not conform to this Agreement shall be to secure replacement or repair of the products, atSeller's option, thereof In no event shall the Seller's maximum liability exceed the selling price for the products
claimed to be nonconforming
8 LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL,INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OFPROFITS, LOSS OF REVENUE, LOSS OF USE OF THE PRODUCTS OR OTHER EQUIPMENT,DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS, WHETHER BASED ON CONTRACT, TORT(INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES
9 DEFENSE, INDEMNIFICATION AND HOLD HARMLESS: Buyer SHALL DEFEND, INDEMNIFY,AND HOLD HARMLESS Seller and Seller's parent(s), subsidiaries, divisions, affiliated companies and theirrespective directors, officers, agents, insurers, employees and representatives (collectively referred to as the "SellerGroup"), from and against any and all claims, suits, causes of action, liabilities, losses (including death, personal
injury and property damage), judgments, obligations, fines, damages, penalties, expenses, attorneys fees,settlement funds, and consequential and incidental damages, of any kind or character regardless of theory(including, but not limited to, breach of contract, breach of warranty, tort (including negligence), strict liability,
environmental laws, intellectual property rights or otherwise), arising out of or in any manner relating to orattributable to or allegedly arising out of or in any manner relating to or attributable to the Products This agreement
to indemnify, hold harmless and defend applies if the act(s) or omission(s) complained of were caused or allegedly
caused only in part by the negligence of the Seller Group, but this agreement to indemnify, hold harmless anddefend does not apply where the act(s) or omission(s) complained of were caused or allegedly caused solely by thenegligence of the Seller GroupBUYER MAY NOT BRING ANY ACTION ARISING OUT OF ANY
CLAIMED BREACH BY SELLER OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE
CAUSE OF ACTION HAS ARISEN
10 PATENT INFRINGEMENT DISCLAIMER: Seller does not represent that the products may be used, sold,or transferred without infringing patents or other proprietary rights of third parties Seller does not assume anyresponsibility nor shall Seller have any liability whatsoever for the infringement by Buyer, its suppliers or its
customers of any patent or other proprietary right owned or controlled by any third party
11 FORCE MAJEURE: Any delay or failure of Seller to perform its obligations hereunder shall be excused tothe extent that it is caused by an event or occurrence beyond its control such as, by way of example and not by wayof limitation, acts of God, actions by any governmental authority (whether valid or invalid), governmental laws
and regulations not presently in effect, any governmental action or inaction (whether valid or invalid), fires, floods,
windstorms, explosions, civil commotion, riots, terrorist act, natural disasters, wars, sabotage, accidents, labor
problems (including lockouts, strikes and slowdowns) at Seller’s facility, its source plant or their suppliers, inability
to obtain power, material, labor, equipment, or transportation, shortage of fuel or raw materials, late or deficientdelivery by subcontractors of raw materials, semi-finished or finished goods or court injunction or order Seller
reserves the right in its sole discretion to determine the assignment of materials and the order of priority in fillingorders12 GOVERNING LAW: This Agreement and any disputes or controversies arising hereunder shall be governedby and construed according to the internal laws of the State of Indiana, United States of America, without regard
to its conflict of law principles, and not including the United Nations Convention on Contracts for the International
Sale of Goods
13 ENTIRE AGREEMENT: This Agreement, together with any attachments, exhibits, or supplements
specifically referenced in this Agreement, shall constitute the entire agreement between the parties hereto and shallsupersede all previous communications, representations, or agreements, either oral or written, between the parties
hereto with respect to the subject matter hereof
14 AMENDMENT: No agreement or understanding varying or expanding this Agreement shall be binding uponeither party hereto unless it is in writing and signed by a duly authorized representative thereof
15 SEVERABILITY: If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable
under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed
severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule In the event suchprovision is deemed severed, the parties shall negotiate in good faith to arrive at an alternative arrangement
approximating the original business objective of the parties The remaining terms and conditions of this Agreement
shall remain in effect
16 ASSIGNMENT: This Agreement is not assignable by Buyer without Seller's prior written approval
17 NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party ofany provision of this Agreement shall in no way affect the right to require such performance at any time thereafter,
nor shall the waiver of either party of a breach of any provision of this Agreement constitute a waiver of any
succeeding breach of the same or any other provision
18. NO AGENCY: Neither party shall be deemed to be an agent or legal representative of the other party, nor isany joint venture or partnership relationship hereby created and neither party is authorized to create any obligation
on behalf of the other party
19 TERMINATION: This Agreement may be terminated by either party by giving ninety (90) days' written
notice to the other party in the event of failure by such other party to fulfill any of its obligations hereunder
However, if during the period of such notice, such other party remedies such failure, this Agreement shall continue
with the same force and effect as if such notice had not been given Seller may immediately terminate thisAgreement, in whole or in part, at its sole discretion, upon giving written notice to Buyer
20 INSOLVENCY: In the event of the insolvency or bankruptcy of Buyer, or upon the appointment of a receiverfor Buyer or its reorganization for the benefit of creditors, Seller may terminate this Agreement In the event oftermination in accordance with this paragraph, Seller shall not be obligated to deliver any products under thisAgreement
21 ATTORNEY'S FEES: In the event Seller should bring an action for enforcement of this Agreement, Buyer
agrees that Seller shall be entitled to award of its reasonable attorney's fees and court costs associated with suchenforcement proceedings
22 CUMULATIVE REMEDIES: The rights and remedies herein reserved to Seller shall be cumulative andadditional to any other or further rights and remedies provided at law or equity
23 EXPORT LAWS: This Agreement shall be subject to, and Seller and Buyer shall comply with, all export
control laws, regulations, rules, orders, licenses, requirements, and governmental requests now or hereafter in effectin the United States of America To the extent any sale of products pursuant to this Agreement may requireapproval of the United States Government, Seller’s obligations under this Agreement are conditioned upon thegrant of such approval and upon compliance by Buyer with any restrictions imposed by the United States
Government in connection with such approval
24 NO INDUCEMENTS: The parties hereto represent to each other and each agrees that, neither it nor any
person acting on its behalf has, in contravention of any applicable law, given or offered to give, or will give oroffer to give, any sum of money or other material consideration to any person, directly or indirectly, as aninducement to obtain business hereunder or to influence the granting of licenses or other governmental permissions
to enter into this Agreement or perform obligations hereunder25 RETURNABLE CONTAINERS: If Seller provides product to Buyer in a shipping container that is to be
returned to Seller (each, a “Container”), Buyer shall be solely responsible for returning the Container to Seller andpaying any and all freight costs and expenses to return the Container to Seller Buyer shall promptly return any
Container to Seller, but in the event that Buyer does not return a Container to Seller within thirty (30) days ofBuyer’s receipt of such Container, then Buyer will be charged for the cost of such Container
26 OFFICIAL TEXT: The official text of this Agreement is in the English language If this Agreement istranslated into another language, the English text shall govern any question with respect to interpretation