Polaris Automation General Terms and Conditions
These General Terms and Conditions (these “Terms”), along with the applicable Polaris Automation,
Inc. or its affiliates (collectively, “Polaris”) written proposal (the “Proposal” and collectively with the
Terms, the “Agreement”), supersede all prior understandings, transactions and communications, oral
or written, with respect to the matters referred to herein, including without limitation the sale of
hardware, parts, firmware, software products and other goods by Polaris and the provision of training,
programming, maintenance, engineering, parts repair, remanufacturing, and other services by Polaris,
and forms the complete agreement between you the purchaser of goods or services (“you”, “your”, or
“Customer”) and Polaris. As referred to in these Terms and elsewhere in the Agreement, “Services”
means and includes only the services, if any, expressly set forth on the applicable Proposal, and
“Products” means and includes only the products, if any, expressly set forth on the applicable Proposal.
Each Proposal expires automatically, unless Polaris receives Customer’s written purchase order within
30 days after the date of the applicable Proposal, unless otherwise agreed to in writing by the parties.
2. Changes and Substitutions.
Customer-requested changes, including without limitation those affecting the Specifications, identity,
scope and delivery of the Products or Services, must be documented in writing and are subject to
Polaris’ prior approval and adjustments in price, scheduling and other affected terms and conditions.
In no event shall Polaris be bound by a proposed change unless agreed to in writing by an authorized
representative of Polaris on the then applicable Polaris change order form. Notwithstanding the
forgoing, except to the extent otherwise expressly set forth on the applicable Proposal, Polaris reserves
the right to substitute using the latest superseding revision or series or equivalent Products or Services
having comparable form, fit and function.
3. Freight and Delivery.
a) Customer acknowledges that even if Polaris assists with the coordination of shipping, freight and
risk of loss remain Customer’s responsibility. Prepaid freight and related amounts will be the
responsibility of Customer, and will be added to the applicable invoice. Except as expressly set
forth in the applicable Proposal, freight shall be Ex Works INCOTERMS 2020 (“EXW”) Polaris’ facility
in origin or such other facility as may be designated by Polaris in the Proposal (the “Delivery Point”).
Delivery shall occur, risk of loss or damage shall transfer to Customer, when Products are made
available at the Delivery Point (“Delivery”). All shipping and delivery dates are approximate and
delivery is subject to unavoidable delays.
b) Product and Service acceptance shall occur as expressly set forth in the testing and acceptance
criteria set forth in the applicable Proposal. If the applicable Proposal does not contain express
testing and acceptance criteria, acceptance will be deemed to occur upon Delivery of Products or
performance Services, as applicable.
4. Fees, Taxes, and Expenses.
a) Fees. Fees and costs shall be as set forth in the applicable Proposal. All fees and costs charged by
Polaris shall be exclusive of any taxes, however designated, levied or based upon the sale or
provision of the Products or Services, including but not limited to sales, use, excise, customs, value-
added or similar taxes (collectively “Taxes”), and Customer shall make all payments to Polaris
required hereunder without deduction for any taxes or other amounts. Customer shall be
responsible for the payment of all Taxes incurred in connection with the Products or Services,
excepting Taxes on Polaris income.
b) Expenses. Customer shall reimburse Polaris for all reasonable out-of-pocket expenses, including
travel and living expenses, incurred by Polaris in the performance of any Services, as set forth on
the applicable Polaris invoice. Polaris will use commercially reasonable efforts to estimate
anticipated expenses on the applicable Proposal. Prior to incurring additional expenses beyond
those set forth on the applicable Proposal, Polaris will obtain Customer’s approval.
c) Types of Engagements.
(i) A “Fixed Fee Engagement” shall mean that Polaris will deliver and complete the project for
the fixed amount and by the date specified in the applicable Proposal, which may include
certain milestones, subject to these Terms. As part of this responsibility, Polaris shall use
commercially reasonable efforts to ensure that it meets its project obligations specified in
the applicable Proposal. In the event of a Fixed Fee Engagement, should Polaris anticipate
that the Polaris resources currently assigned to the applicable project are not sufficient to
ensure its timely completion, Polaris will supplement them as necessary at no additional
cost to Customer. Notwithstanding the foregoing, Polaris shall have no liability for delays
caused directly or indirectly by Customer or its representatives, and upon any such delay
that is unreasonable, Polaris may cancel the order or terminate this Agreement in whole
or in part.
(ii) A “Time And Materials Engagement” shall mean that Polaris will estimate the number of
hours required to complete Polaris’ tasks identified in the applicable Proposal. Polaris will
invoice Customer for Hours Worked. If fewer than the estimated person-hours of effort are
required, then Customer’s cost will be less than the estimated charges. If more than the
estimated person-hours are required, Polaris shall notify Customer as soon as Polaris
becomes aware of the need. At that time, solely with respect to the applicable Time and
Materials Engagement, Customer may terminate the applicable Time and Materials
Engagement and pay for the hours expended to date and other amounts owed pursuant
to the Agreement, continue with the work up to the estimated person-hours of work
contracted, or exercise the formal change order process to amend the terms to authorize
additional work. “Hours Worked” shall mean hours spent by Polaris’ representatives at
Polaris’ office or remote locations, including without limitation Customer’s offices or
facilities, or elsewhere at Customer’s direction, and engaged in providing the services
identified in the Proposal. Commuting and/or travel time is included in “Hours Worked.”
d) Invoices. Polaris shall invoice Customer for engineering services and equipment at the end of each
calendar month (i) for Fixed Fee Engagements, based on the estimated percentage of the project
that is complete, and (ii) for Time and Materials Engagements, based on the number of actual
Hours Worked in accordance with the rates set forth in the applicable Proposal, and otherwise in
accordance with the milestones set forth in the applicable Proposal.
e) Terms of Payment. Except as expressly set forth in the Proposal and this subsection, subject to on-
going credit approval by Polaris, the terms of payment shall be net thirty (30) days from date of
the applicable invoice, and Customer’s payment shall be cash in United States funds payable
pursuant to Polaris’ instructions. Polaris reserves the right to suspend any further performance
hereunder or otherwise upon Customer’s: (a) late payment; (b) non-payment; or (c) failure to
provide assurances of payment upon reasonable request by Polaris. Customer shall be responsible
for Polaris’ collection costs and attorneys’ fees in collecting any past due amounts.
f) Customer Delay. Notwithstanding anything to the contrary and irrespective of when any invoice is
submitted, all applicable amounts owed shall be due prior to any obligation of Polaris to Deliver the
applicable Products or perform the applicable Services. In the event any amount owed by Customer
is delayed, or Customer fails to authorize or otherwise delays shipment or performance, all
applicable amounts shall be due immediately. In the event Customer continues to fail to authorize
or otherwise delays shipment or performance for a period of sixty days following of Polaris’
notification that Product is ready for shipment or Services are ready for performance, all amounts
set forth in the applicable Proposal shall be due immediately.
5. Confidential Information.
a) Polaris and Customer acknowledge that the terms of this Agreement as well as any non-public
information of either party, including but not limited to all specifications, methods, processes and
the like, customers, strategies, budgets, financial information, marketing plans, and other
information that constitutes proprietary or trade secret information of the disclosing party, and all
non-public data, drawings, notes, instructions, materials, products, technology, computer
programs, specifications, schedules, manuals, business plans, software, marketing plans, financial
information, technical data, and other information disclosed or submitted, orally, in writing, or by
any other media by Polaris or its representatives, and all information that that the receiving party
knew or reasonably should have known was confidential or proprietary, or that derives independent
value from not being generally known to the public (all such information, collectively, the
“Confidential Information”), is proprietary or confidential to the disclosing party.
b) Each party shall maintain the confidentiality of, and not disclose to third parties, or use, the other
party’s Confidential Information, except for the purpose of carrying out the intent of this
Agreement, and shall disclose Confidential Information only to those of its employees or other
authorized representatives as will be directly concerned with performance under this Agreement.
Confidential Information does not include information that is or becomes publicly known through
no fault of the disclosing party. Notwithstanding anything to the contrary, the confidentiality
obligations imposed hereunder on either party shall not apply to Confidential Information to the
extent that disclosure of such Confidential Information is required under applicable law or by a
valid subpoena or other valid order of any governmental authority; provided, however, that, if such
disclosure is required under the circumstances contemplated under this sentence, the party making
such disclosure shall advise the other party of such requirement to disclose the Confidential
Information as soon as reasonably practicable, after the party obligated to make such disclosure
becomes aware of such requirement to disclose; and further provided that, upon the request of
the other party, the party obligated to make such disclosure shall undertake reasonable lawful
efforts to resist and limit such disclosure.
c) Each party agrees that it will protect the confidentiality of Confidential Information of the other
party with the same degree of care with which it protects its own confidential information, but in
no event with less than with a commercially reasonable degree of care, and will return all copies
(in any medium recorded) of Confidential information of the other party, immediately upon written
request. The foregoing obligations will survive termination of this Agreement and will remain
binding on each party and its respective affiliates, successors and assigns. Each party acknowledges
and agrees that a breach of this Section 5 would result in immediate and irreparable harm to the
other party for which there is no adequate remedy at law and entitling such party to an injunction
compelling the other party to immediately cease and desist all unauthorized use and/or disclosure
of Confidential Information.
d) Each party shall have and adhere to commercially reasonable information security guidelines, and
each party shall notify the other party promptly under the circumstances, however no later than
as required by law after discovering such event, of any violation of such guidelines or applicable
law with respect to the processing of the other party’s Confidential Information, and each party
shall take actions reasonable under the circumstances necessary to promptly prevent continued
risk to the other party’s Confidential Information.
e) Prior to the development of any jointly developed intellectual property, the parties will enter into a
mutually agreeable joint development agreement (when executed by each party, a “JDA”). In no
event shall any works, services, Products, or other goods or services, or the related results or
deliverables, or other intellectual property be deemed or otherwise considered jointly developed
intellectual property, unless expressly defined as such in a JDA. Except as otherwise expressly set
forth in a JDA or this Agreement, in no event shall Polaris obtain any right, title, or interest in
Customer Confidential Information or shall Customer obtain any right, title, or interest in Polaris
Confidential Information. Except to the extent including Customer Confidential Information, Polaris
retains all right, title, and interest in and to intellectual property developed by Polaris. Each party
shall use commercially reasonable efforts to execute such documents, render such assistance, and
take such other actions as the other party may reasonably request to apply for, register, perfect,
confirm, and protect the rights under this Section 5. Notwithstanding anything to the contrary,
Polaris may use for any purpose, any information which may be retained in the unaided memories
of Polaris employees and representatives, such as ideas, concepts, know- how, lessons learned,
negative know how, experience and techniques which do not contain any Customer Confidential
Information. An employee’s memory is unaided if the employee has not intentionally memorized
the information for the purpose of retaining and subsequently using or disclosing it.
f) Upon receipt of all amounts owed pursuant to the applicable Proposal, Polaris grants to Customer,
a limited, fully-paid up, non-exclusive right and royalty-free license to Polaris intellectual property
embedded in or otherwise provided by Polaris with any Products or Services, to the extent required
to use and enjoy the applicable Products and Services for the authorized use expressly set forth in
the applicable Proposal for Customer’s internal business purposes; provided that Customer does
not and does not allow any third party to copy, modify, create a derivative work of, reverse
engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign or
sublicense any Polaris intellectual property or other Confidential Information of Polaris. Polaris
retains all right, title and interest in and to its intellectual property, and except as set forth in this
subsection nothing in this Agreement transfers or licenses any rights in or ownership of any
intellectual property rights of Polaris.
g) Customer represents to Polaris that: (i) all content, materials, and other information provided or
made available by Customer or its representatives to Polaris for Polaris’ use in the Products,
performance of the Services, or otherwise pursuant to the Agreement is accurate and complete
and does not, and Polaris’ use thereof in the Products, performance of the Services or otherwise
pursuant to the Agreement will not infringe any third party rights; and (ii) Customer has the full
right, power and authority to provide and make available such content, materials, and other
information to Polaris for such purposes, and Customer hereby grants Polaris all rights necessary
in such content, materials, and other information to use in the applicable Products, perform the
applicable Services, and otherwise perform pursuant to the Agreement.
a) Orders accepted by Polaris may be cancelled by Customer only upon the written consent of Polaris.
Where Polaris consents to a cancellation, Customer shall pay Polaris, at Polaris’ discretion, a
reasonable cancellation charge in an amount not less than 15 percent (15%) of the cancelled order.
Customer further agrees to pay all costs associated with the cancellation, including but not limited
to, setup charges, reprogramming charges, restocking fees, and costs of material inventoried by
Polaris in support of Customer’s order that is not immediately reusable by Polaris or returnable to
the supplier (“Cancellation Costs”). Where Polaris does not consent to a cancellation in writing,
Customer shall pay to Polaris the full amount set forth in any Proposal in accordance with the
payments terms set forth therein.
b) Polaris may cancel any order for Cause (as defined below) at any time immediately upon written
notice to Customer, and Customer shall pay Polaris for all work performed, all approved expenses
incurred prior to the effective date of such cancellation, and Cancellation Costs. “Cause” means
any of the following:
(i) Customer materially breaches any provision of this Agreement, and fails to cure such
breach within the applicable cure period, if any;
(ii) Customer makes an assignment for the benefit of creditors, or is subject to any voluntary
or involuntary provincial or federal receivership, insolvency or bankruptcy proceedings, or
becomes unable, or admits in writing its inability, to meet its obligations as they mature,
or otherwise takes steps to dissolve or liquidate its business;
(iii) the licenses, permits or authorizations necessary for Polaris to conduct its business in
accordance with this Agreement are canceled, suspended, or revoked;
(iv) Customer makes any materially false or misleading statement, representation or claim;
(v) Customer fails to pay any amounts due and payable hereunder.
Polaris warrants to Customer that commencing on the date of Delivery and continuing for a period of
six months thereafter, under normal use and service, the Products manufactured by Polaris will conform
to the applicable technical specifications expressly set forth in the applicable Proposal (the
“Specifications”), and will be free from defects in material or workmanship. Polaris warrants to
Customer that at the time the applicable Services, if any, are performed by Polaris and for a period of
ninety days thereafter, such Services will be performed in a professional and workmanlike manner in
accordance with the degree of skill and care ordinarily exercised by reputable members of Polaris’
industry at the time the applicable Services are performed.
Any claim of nonconformity or defect in the Products or otherwise made under these warranties must
be presented promptly in writing setting forth in detail the nature of the nonconformity or defect to
Polaris at its address above. Polaris shall have a commercially reasonable length of time, after notice
and recognition of a claim of nonconformity or defect to remedy the nonconformity or defect by repair,
replacement, or re-performance in accordance with the terms of this warranty. Polaris’ obligation is
exclusively limited to replacement parts, replacement equipment, or re-performance, as applicable,
each at Polaris’ option. These remedies are Customer’s exclusive remedies for breach of warranty.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY OTHER
DOCUMENT OR AGREEMENT BETWEEN THE PARTIES, THE WARRANTIES SET FORTH IN THIS
SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES OF POLARIS; THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, USAGE, PERFORMANCE, OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Polaris shall use commercially reasonable efforts to pass through the original manufacturer warranties
related to any Products sold by Polaris to Customer pursuant to this Agreement.
8. Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY
LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS AND SERVICES, WHETHER
ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, EXCEED THE AMOUNTS PAID TO POLARIS DURING THE 12 MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. General Provisions.
a) No Partnership or Agency. The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint
venture, or other form of joint enterprise, employment, or fiduciary relationship between the
parties, and neither party shall have authority to contract for or bind the other party in any manner
b) Signatures in Counterparts. The Proposal and this Agreement, as applicable, may be executed in
any number of counterparts, including counterparts executed or delivered by electronic means,
each of which will be deemed an original, but all of which taken together shall constitute one and
the same instrument. Each party shall be permitted to rely upon the signatures so transmitted to
the same extent and effect as if they were original signatures.
c) Binding Effect. This Agreement will be binding upon and be for the benefit of the parties and their
respective successors and permitted assigns. This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person any legal or equitable right, benefit,
or remedy of any nature whatsoever, under or by reason of this Agreement. Customer may not
assign this Agreement or any right or obligation hereunder to any other party without the prior
written consent of Polaris.
d) Headings. The headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement. Should any provision of this Agreement be found by any court of
competent jurisdiction or any other competent governmental authority to be invalid, illegal, or
unenforceable, the validity, legality and enforceability of the remaining provisions contained in this
Agreement will not be affected or impaired.
e) Waiver. The decision by either party not to enforce any right or provision within this Agreement or
the failure not to require performance shall not constitute a general waiver of that right or provision
or any other right or provision under this Agreement.
f) Entire Agreement. The Agreement contains the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior arrangements, agreements or understandings
with respect to and shall exclusively govern such matters, including without limitation the sale of
Products and provision of Services. No click-wrap or other terms or conditions provided with any
Customer materials will constitute a part of or amendment to the Agreement or are or will be
binding on either party for any purpose. The Agreement may not be altered or modified except in
writing, duly executed by an authorized representative of each party. Your signature on any
Proposal, or your submission of any email or other electronic correspondence or other writing
referencing any Proposal, or your payment of any amount owed hereunder, or your receipt and
acceptance of any Products or Services, in whole or in part, or any other manifestation of your
assent to the Agreement, shall constitute acceptance by you of the Agreement. Without limiting
the forgoing, Polaris objects to and expressly rejects other terms and conditions that may be
proposed by Customer or that appear on or are referenced in Customer’s purchase order or other
documents, or materials, or correspondence submitted or otherwise made available by Customer
at any time. Any sale of Products or provision of Services by Polaris is expressly conditioned on
your acceptance of the Agreement. In the event of any inconsistency between these Terms and
any Proposal, these Terms shall control. Polaris reserves the right at any time before delivery and
payment to correct clerical, stenographic, or other errors in Proposals, purchase orders,
acknowledgments, and other documents and materials.
g) Survival. The provisions of this Agreement which by their nature are intended to survive
termination, cancellation, completion, or expiration of the Agreement shall continue as valid and
enforceable provisions of the Agreement notwithstanding any such termination, cancellation,
completion, or expiration.
h) Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a
trial by jury in respect of any legal action arising out of or relating to this Agreement or the
transactions contemplated hereby.
i) Governing Law. This Agreement shall be governed by and construed in accordance with the internal
laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule
(whether of the State of Ohio or any other jurisdiction) that would cause the application of Laws
of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising
out of or related to this Agreement or the Products Services provided hereunder shall be instituted
exclusively in the federal courts of the United States or the courts of the State of Ohio in each case
located in the city of Columbus and County of Franklin, and each party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process,
summons, notice, or other document by mail to such party’s address set forth herein shall be
effective service of process for any suit, action, or other proceeding brought in any such court.
j) Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to
have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing
any obligation (except for any obligations to make payments to the other party hereunder) when
and to the extent such failure or delay is caused by or results from events of force majeure,
including without limitation: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war,
invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil
unrest; (iv) government order or law; (v) actions, embargoes, or blockades in effect on or after
the date of this Agreement; (vi) action by any governmental authority; (vii) national or regional
emergency, epidemic, or pandemic; (viii) strikes, labor stoppages or slowdowns, or other industrial
disturbances; (ix) shortage of adequate power or transportation facilities; or (x) other events
beyond the reasonable control of the party affected by the Force Majeure Event. Upon a Force
Majeure Event, the affected party shall give notice to the other party stating the period of time the
occurrence is expected to continue.