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Shibaura Machine Company, America General Terms and Conditions for Services Effective October 1, 2024

Capitalized words in these Shibaura Machine Company, America General Terms and Conditions for Services (these “General Terms”) that are not otherwise defined herein shall have the same meaning given in the Master Services Agreement (“MSA”) and/or applicable Statement(s) of Work (“SOW”). These General Terms, together with the MSA and applicable SOWs (collectively, the “Agreement”) are the only terms that govern Shibaura Machine’s provision to Customer of the Services (as defined in the applicable SOW). Any additional, different or contrary terms included in Customer’s purchase order or other documentation are hereby rejected and shall be of no effect. Shibaura Machine’s provision of Services hereunder is expressly conditioned upon Customer’s assent to the terms of this Agreement. Shibaura Machine and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

  1. Definitions.
    • “Machine(s)” means the applicable Customer machine(s) identified in the applicable SOW.
    • “Service Package” means the service package(s) selected by Customer in the applicable SOW.
  2. Basis for Service Coverage. During the Term of this Agreement, Shibaura Machine shall provide the Services as set forth in Section 4 herein and the applicable SOW. Shibaura Machine shall shall send a Shibaura Machine service technician to evaluate and/or repair the Machines listed as covered on the applicable SOW under the Service Package if any such Machines become inoperable. This Agreement does not cover any known or unknown pre-existing conditions. This Agreement only covers Shibaura Machine products bought through Shibaura Machine sales channels and installed by Shibaura Machine service technicians. Customer may at any time upgrade its Service Package under an applicable SOW by executing a change order document and paying any increased Fees (as defined below), prorated for the remaining Service term set forth in the SOW. Customer may not downgrade its Service Package during a Service term in an applicable SOW.
  3. Requesting Service.
    • Customer must notify Shibaura Machine as soon as the malfunction is discovered. Customer may request Service by calling 1-888-593-1616 or emailing im-svc@shibaura-machine.com. Shibaura Machine will not provide Service if the Customer is currently on a credit hold status.
    • Upon request for Service under normal circumstances, Shibaura Machine will contract an authorized service technician within one (1) day during normal business hours and two (2) days on weekends and holidays after Customer requests Services. The authorized service technician or a service representative will contact Customer to schedule a mutually convenient appointment during normal business hours. Shibaura Machine will, in its sole discretion, decide what repairs constitute an emergency and will make reasonable efforts to hasten emergency Services. Shibaura Machine will accept Customer requests to hasten scheduling of non-emergency Services only when a service technician is available. Shibaura Machine reserves the right to charge added expedite fees for priority scheduling of a non-emergency Service request.
    • Shibaura Machine will not reimburse Customer for any services performed by an outside third party without Shibaura Machine’s prior written approval.
    • If a Shibaura Machine service technician determines and informs Customer that a particular Machine malfunction is not covered under the applicable Service Package, Customer has the right to request a Shibaura Machine service manager review the applicable malfunction. If the determination of the Shibaura Machine service manager is different from the determination of the Shibaura Machine service technician, then Shibaura Machine may, at its discretion, decide to provide coverage for the subject Machine malfunction only.
    • Circumstances beyond Shibaura Machine’s reasonable control may prevent Shibaura Machine from providing a service technician to evaluate or repair a covered Machine as requested by Customer. In these instances, Shibaura Machine reserves the right to provide Customer a suitable time for a Shibaura Machine technician to arrive onsite. Shibaura Machine is not responsible for expenses incurred by Customer without Shibaura Machine’s express written consent. Shibaura Machine is under no obligation to reimburse Customer for any costs associated with unauthorized repairs or work performed by unauthorized contractors.
    • Unless coverage for emergency Service visits or standard Service visits are included in Customer’s applicable Service Package, all Service requests are charged on a per-request basis.
    • Except as set forth in Customer’s applicable Service Package, Service technician Fees (as defined below) apply to each Service call dispatched and scheduled, including but not limited to, those Service calls where coverage is approved or denied, included or excluded, covered or not covered. Service technician Fees also apply in the event Customer fails to be present at Customer’s facility at the scheduled Service time, or  Customer cancels a Service request when a Service technician is enroute to Customer’s facility.
  4. Description/Scope of Service Coverage.

4.1.       Machine Inspection (as applicable).

  • COVERED:
    1. Additional labor which, as determined by a Shibaura Machine technician or engineer, is needed for installation of additional parts to remedy any issues regarding any Machine location, size, or intended functionality.
  • NOT COVERED:
    1. Additional labor needed to install additional parts due to:
      1. Machine location changes after the location determination has been completed and agreed upon by Shibaura Machine and Customer;
      2. Additional barriers that may affect the installation that were not present nor presented. These barriers are (but not limited to) Machine placement, incorrect measurements taken by third parties, or insufficient power requirements; or
      3. Additional parts needed due to the conditions a. and b. set forth above.

4.2.      Installation.

  • COVERED:
    1. Installation of the Machine by a Shibaura Machine service technician, including any additional site visits necessary to successfully complete such work.
  • NOT COVERED:
    1. Additional labor needed to install additional parts due to added barriers that may affect the installation that were not present or presented to Shibaura Machine during the sale of the Machine. These barriers include (but are not limited to) Machine placement, incorrect measurements taken by third parties, or insufficient power requirements;
    2. Additional labor needed due to the Machine not able to be started upon the Shibaura Machine service technician’s first visit due to incorrect information provided by Customer, or faulty parts covered under the applicable parts warranty; or
    3. Additional labor needed due to unavailability of Customer resources (i.e., early shop shut down, lack of qualified resources in restricted areas).

4.3.      Commissioning.

  • COVERED:
    1. Commissioning of the Machine by a Shibaura Machine service technician, including any additional site visits necessary to successfully complete such work.
  • NOT COVERED:
    1. Additional labor needed due to the Machine not able to be started upon the Shibaura Machine service technician’s first visit due to incorrect information provided by Customer, or faulty parts covered under the applicable parts warranty.

4.4.      Preventative Maintenance.

  • COVERED:
    1. Preventative maintenance of the Machine by a Shibaura Machine service technician, including any additional site visits necessary to successfully complete such work.
  • NOT COVERED:
    1. Service work required to correct other deficiencies discovered by the Shibaura Machine service technician while performing preventative maintenance Services.
  1. Additional Terms for Services.
    • Shibaura Machine shall have no obligation to perform Services for issues arising out of or relating to (i) malfunctions or improper operation due to rust or corrosion of a Machine or system, or (ii) known or unknown pre-existing conditions, deficiencies, and/or defects.
    • Shibaura Machine is not responsible for the repair of any cosmetic defects or performance of routine maintenance unless set forth in an applicable SOW.
    • All areas of Customer’s facility where Service repair or maintenance must be performed must be accessible to the Shibaura Machine technician upon his/her arrival at Customer’s site. Shibaura Machine is not responsible for restoration of any damage to wall coverings, floor coverings, plaster, tiling, paint, or the like.
    • This Agreement does not cover failures to Machines which may result from the following causes: abuse; misuse and/or neglect; secondary failures; lack of maintenance; rust and/or corrosion; noise without a related Service action; chemicals; lightning strikes; missing parts; animal, pet and/or pest damage; power failure; power surge; fire; casualty; water damage; acts of God; structural and/or property damage; flood; smoke; earthquake; water/freeze damage; accidents; war; acts of terrorism; nuclear explosion, reaction, radiation or radioactive contamination; insurrection; riots; vandalism; or intentional destruction of property. This Agreement does not cover mechanical failures resulting directly or indirectly from or caused by mold, mildew, mycotoxins, fungus, bacteria, virus, condensation, and any other cause or event contributing concurrently or in any sequence to the mechanical failure.
    • This Agreement shall not cover any Machines: (i) if they are modified from the original manufacturer design or application; (ii) if such Machine uses improper materials or manufacturing processes; or (iii) if the failure in the Machine is due to a manufacturing defect.
    • This Agreement does not cover upgrading or making modifications to Machines due to reasons including, but not limited to: capacity (over or undersized); dimensional or design change; conditions of insufficient or excessive water pressure; conditions of inadequate wiring capacity; circuit overload; power failure and/or surge; failure to meet building code(s); zoning requirements; utility regulations; or failure to comply with local, state or federal laws or regulations.
    • This Agreement does not cover any costs associated with construction, carpentry, or other modifications made necessary by the repair or replacement of existing Machines or installing different equipment. This Agreement does not cover any costs associated with any upgrades or modifications to follow federal, state, and/or local law, code, regulation, or ordinance. All such costs are the sole responsibility of Customer.
    • This Agreement does not cover costs or other expenses or fees associated with the removal and/or disposal of old Machines or components.
    • This Agreement does not cover fees associated with use of cranes or other lifting equipment needed to service any Machine or system.
    • This Agreement does not cover any costs incurred to gain and/or close access to a covered Machine or part thereof in situations where there is not adequate capacity or space for serviceability, caused by circumstances including, but not limited to, walls, floors, ceilings, permanently installed fixtures, snow/ice covered areas, flooded areas, or private property. In the event it is necessary to open walls, or ceilings, or to move such fixtures, or private property to perform a diagnosis or Service, Shibaura Machine is not responsible for restoring such openings, items, or property. This Agreement does not cover any costs associated to gain access or allow serviceability of Machines including, but not limited to, the placement and/or removal of scaffolding.
    • This Agreement does not cover added charges to access or transport materials, supplies, or service technicians to Customer’s facility due to lack of or inhibited serviceability, such as but not limited to, tolls, required use of ferries or barges and/or remote locations.
    • In no event shall Shibaura Machine be liable for any direct, indirect, incidental, consequential, special, and/or punitive damages, loss of income, additional technician expenses, and/or any other loss, damage, cost or expense to the extent directly or indirectly arising out of or resulting from and/or related to Customer’s: (i) improper operation of the Machine; (ii) improper maintenance of the Machine; or (iii) modifications to the Machine which result in damage to the Machine.
    • This Agreement does not cover any claimed failure when the covered Machine has been repaired, changed, disabled, or adjusted in any way which prevents Shibaura Machine’s service technician from inspecting, diagnosing, and/or repairing the failure. This Agreement does not cover any mechanical failure to any covered Machine or system that has been improperly altered, repaired, changed, or damaged during a repair conducted without Shibaura Machine’s authorization.
    • This Agreement does not cover the performance of routine maintenance. Customer is responsible for performing all routine maintenance and cleaning for all covered Machines and systems as specified and recommended by the manufacturer. If Shibaura Machine denies a request to perform Services due to lack of maintenance, then Shibaura Machine has the right to request Machine maintenance records from Customer. Shibaura Machine will not be responsible or liable to pay for repairs or failures that result from Customer’s failure to perform normal or routine maintenance. Shibaura Machine may provide a certain level of routine maintenance as part of the Services set forth in an applicable SOW, but Customer is solely responsible for daily routine maintenance.
    • Shibaura Machine is not liable for any damage resulting from Services performed by an independent third-party service provider. Shibaura Machine is not liable for any indirect, incidental, consequential, special, and/or punitive damages arising from, resulting from or related to any independent third-party service providers, or delay in providing Services or failure to provide Service, including, but not limited to, delays in securing parts and/or labor, the failure of any equipment used by an independent third-party service provider, secondary failures, labor difficulties, and/or the negligent, tortuous and/or unlawful acts or omissions of any independent third-party service providers.
    • Shibaura Machine has the right to decide, in its sole discretion, whether to repair a covered Machine. Shibaura Machine is responsible for evaluation and repair only. Shibaura Machine is not responsible for upgrades, components, parts, or equipment needed due to the incompatibility of the existing equipment. Shibaura Machine is not liable for replacement of Machines due to the obsolescence, discontinuation or unavailability of one or more integral parts.
  2. Fees and Payment.
    • Fees. Customer shall pay Shibaura Machine the Services fee amount (“Fees”) set forth in the applicable SOW without offset or deduction. Customer shall make all payments in U.S. dollars either within thirty (30) days of the date of Shibaura Machine’s invoice or before the due date set forth in the applicable SOW, if applicable. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Shibaura Machine may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Shibaura Machine for all costs incurred by Shibaura Machine in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. Shibaura Machine reserves the right to suspend performance under this Agreement for late payment or non-payment of Fees, until such time as all Fees are paid in full; provided, however that any Service Package contract period will not be extended.
    • Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Shibaura Machine’s income.
  3. Confidential Information. From time to time during the Term, Shibaura Machine may disclose or make available to Customer information including, but not limited to information about its business affairs, products and services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, “Confidential Information”). Confidential Information does not include information that, as proven by documentary evidence, at the time of disclosure is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) independently developed by Customer without use of or reference to Confidential Information. Customer shall not disclose Shibaura Machine’s Confidential Information to any person or entity, except to Customer’s employees who have a need to know the Confidential Information for Customer to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to Shibaura Machine and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, Customer shall promptly return to Shibaura Machine all copies, whether in written, electronic, or other form or media, of Shibaura Machine’s Confidential Information, or destroy all such copies and certify in writing to Shibaura Machine that such Confidential Information has been destroyed. Customer’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and shall survive the termination of this Agreement.
  4. Intellectual Property Ownership. Customer acknowledges that, as between Customer and Shibaura Machine, Shibaura Machine and/or its licensors exclusively own all right, title, and interest, including all intellectual property rights, in and to the Services.
  5. Limited Warranty/Disclaimer. SHIBAURA MACHINE WILL PERFORM THE SERVICES IN A PROFESSIONAL, WORKMANLIKE MANNER IN ACCORDANCE WITH APPLICABLE INDUSTRY STANDARDS. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, THE SERVICES ARE PROVIDED “AS IS” AND SHIBAURA MACHINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SHIBAURA MACHINE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
  6. Indemnification. Customer shall indemnify, hold harmless, and, at Shibaura Machine’s option, defend Shibaura Machine, its affiliates, officers, directors, employees, agents and contractors (collectively, “Indemnified Party”) from and against any and all losses, damages, liabilities, and costs (including attorneys' fees) incurred by Indemnified Party resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) arising out of or relating to Customer’s, or any of Customer’s employees’: (i) negligence or willful misconduct; (ii) breach of the terms of this Agreement; or (iii) violation of applicable law; provided, that Customer may not settle any Third-Party Claim against Shibaura Machine unless such settlement completely and forever releases Shibaura Machine from all liability with respect to such Third-Party Claim or unless Shibaura Machine consents to such settlement, and further provided that Shibaura Machine will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  7. Limitations of Liability. IN NO EVENT SHALL SHIBAURA MACHINE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW ENTERED INTO HEREUNDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT PRODUCTS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SHIBAURA MACHINE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL SHIBAURA MACHINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR ANY SOW ENTERED INTO HEREUNDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SHIBAURA MACHINE FOR SERVICES PROVIDED BY SHIBAURA MACHINE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  8. Termination.
    • Termination. In addition to any other express termination right set forth in this Agreement:
      • Shibaura Machine may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Shibaura Machine’s delivery of written notice thereof;
      • either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      • either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Termination. Upon termination of this Agreement, Customer shall delete, destroy, or return all copies of Shibaura Machine’s Confidential Information in Customer’s possession. No termination will affect Customer's obligation to pay all Fees that may have become due before such termination, or entitle Customer to any refund.
    • Survival. This Section 12(c) and Sections 1 (Definitions), 6 (Fees and Payment), 7 (Confidential Information), 8 (Intellectual Property Ownership), 9 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitations of Liability), and 13 (Miscellaneous) shall survive the termination of this Agreement.
  9. Miscellaneous.
    • Entire Agreement. The MSA and these General Terms and Conditions, together with any other documents incorporated herein by reference and all related SOWs and/or other attachments, exhibits or appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the MSA (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid).
    • Force Majeure. In no event shall Shibaura Machine be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Shibaura Machine’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) shortage of adequate power, communications or transportation facilities.
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    • Governing Law; Jurisdiction.
      • This Agreement and any matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois.
      • Any suit, action or proceeding arising out of or relating to this Agreement, the purchase and sale of the Services, and the relationship of the Parties shall be instituted in a state or federal court located in the County of Cook, State of Illinois, and Customer irrevocably consents and waives all objections to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. In the event Shibaura Machine brings any proceeding to enforce its rights hereunder including for any breach of any of the provisions of this Agreement, Shibaura Machine will be entitled in such proceeding to recover its reasonable attorneys' fees together with the costs and expenses of such proceeding. CUSTOMER AND SHIBAURA MACHINE HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE CONCERNING THIS AGREEMENT AND/OR THE SERVICES.
      • Any dispute or other action arising out of or relating to this Agreement must be brought by Customer within one (1) year of the date the event giving rise to the cause of action occurred or it shall be forever barred.
    • Assignment; Subcontractors. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Shibaura Machine. Shibaura Machine may assign this Agreement to any of its affiliates without Customer’s consent. Shibaura Machine may freely engage subcontractors to provide all or part of the Servies without Customer’s consent. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
    • Equitable Relief. Notwithstanding Section 13(f)(ii) herein, Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 7 would cause Shibaura Machine irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Shibaura Machine will be entitled to equitable relief from any court with jurisdiction, without any requirement to post a bond or other security, or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.