Service Terms and Conditions
1. GENERAL. This sets forth the terms and conditions of sale for this sale (“Sale”) pursuant to which the purchaser (the “Purchaser”) will purchase and Shibaura Machine Company. America (“Seller”) will sell the product, and any accessories and attachments (collectively, the “Product”). These Terms and Conditions shall govern and apply to the Sale of the Product to Purchaser, regardless of any terms and conditions appearing on any purchase order or other forms submitted by Purchaser to Seller.
2. CANCELLATION. Purchaser may not cancel or countermand any Sale and shall be liable to Seller for the entire Sale unless otherwise agreed to in writing by Seller.
This Sale can be cancelled by either party, subject to the following restrictions; (1) if the Product sold hereunder is specially manufactured or nonstandard then this Sale may not be cancelled by Purchaser unless agreed to by a signed agreement between the parties; and (2) in the event that the Purchaser cancels this Sale of standard product, Purchaser agrees to reimburse Seller in an amount equal to 20% of the Sale as a restocking fee.
3. PRICE. All prices set forth are F.O.B. Seller’s place of business, unless otherwise agreed. All prices are exclusive of any and all taxes, including, but not limited to, excise, sales, use, property or transportation taxes related to the sale or use of the Product, now or hereafter imposed, together with all penalties and expenses. Purchaser shall be responsible for collecting and/or paying any and all such taxes, whether or not they are stated in any invoice for the Product. Purchaser shall indemnify and hold Seller harmless from and against imposition and payment of such taxes. Seller, at its option, may at any time separately bill the Purchaser for any taxes not included in Seller’s invoice and Purchaser shall pay said taxes, or in lieu thereof, shall provide Seller with a tax exemption certificate acceptable to taxing authorities. Unless otherwise specified herein, all prices are exclusive of inland transportation, freight, insurance and other costs and expenses relating to the shipment of Product from the F.O.B. point to Purchaser’s facility. Any repayment by Seller of freight insurance and other costs shall be for the account of Purchaser and shall be repaid to Seller.
4. PAYMENT, DELINQUENCY CHARGE. Unless otherwise agreed, all sums due Seller shall be net 30 days after delivery of the Product to Purchaser. Purchaser shall be assessed a late charge of 5%, plus interest of 1.5% per month will be charged on any past due amount. Additionally, a service fee that will not exceed 9% of the original total invoice price will be charged if Seller is required to utilize a collection service to collect any delinquent account. Seller reserves the right to revoke any credit extended to Purchaser because of Purchaser’s failure to pay for any goods when due or for any other reason deemed to be good and sufficient by Seller. Seller shall have no obligation to make, sell or ship any products to Purchaser if at any time the Seller has reason to believe that the financial responsibility of the Purchaser is impaired or unsatisfactory to the Seller, or if at the time of such sale or shipment, be in default of any terms and conditions hereof, or becomes insolvent or proceedings are instituted to declare Purchaser held by Seller immediately due and payable, together with any and all attorneys fees and costs incurred by Seller in enforcing its rights hereunder, all which Seller may sue for and recover from Purchaser.
5. DELIVERY. Seller shall exert reasonable efforts to cause the Product to be shipped and delivered in accordance with the terms and conditions of sale. Notwithstanding the provisions by Seller to the contrary, Seller shall not be responsible or liable for any loss or damages resulting from Seller’s delayed performance in shipment and delivery of the Product for any reason whatsoever. All shipments shall be F.O.B. Seller’s place of business, unless otherwise agreed, at which time all loss or damage to the Product shall be Purchaser’s sole responsibility.
6. INSTALLMENT AND FIELD SERVICE. Purchaser shall make, at its own expense, preparations necessary for operating the Product such as, but not limited to, electricity, water, steam and air. Seller shall assist in the standard erection and installation of the Product at no additional cost to the Purchaser. Unless otherwise covered under Seller’s warranty, all subsequent service will be at Seller’s current standard rates of service, unless otherwise agreed.
7. WARRANTY. Seller warrants that the Product sold hereunder will be free from defects in material and workmanship for a period of ninety (90) days from the date of delivery unless otherwise specified by Purchaser and Seller in writing and signed by both parties. SELLER’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SELLER AND THE MANURACTURER OF THE PRODUCT (COLLECTIVELY, “MANUFACTURING AND SELLING PARTIES”), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, IN NO EVENT SHALL SELLER OR THE MANUFACTURING AND SELLING PARTIES BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, WHETHER OR NOT CAUSE BY OR RESULTING FROM THE NEGLIGENCE OF SELLER AND/OR THE MANUFACTURING AND SELLING COMPANIES, UNLESS SPECIFICALLY PROVIDED HEREIN. IN ADDITION, THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCT OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION OR MAINTENANCE OR OPERATION, ELECTRICAL FAILURE OR ABNORMAL CONDITIONS, AND TO PRODUCT WHICH HAS BEEN TAMPERED WITH, ALTERED, MOTIFIED, REPAIRED, OR REWORKED BY ANYONE NOT APPROVED BY SELLER. PURCHASER’S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED AT SELLER’S EXCLUSIVE DISCRETION, TO (1) REPLACEMENT OF ANY DEFECTIVE PRODUCT OR PART THERE OF;(2) REPAIR OF ANY DEFECTIVE PRODUCT OR PART THEREOF; (3) RETURN OF THE PURCHASE PRICE IN EXCHANGE FOR RETURN OF THE PRODUCT. No agent, employee or representative of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Product sold hereunder. This warranty is not assignable or otherwise transferable to any subsequent purchaser or user of the Product and any sale or other void Seller’s warranty and Seller shall thereafter have no further obligation or liability with regard thereto.
8. SECURITY INTEREST. Purchaser grants to Seller and Seller retains a continuing purchase money security interest in the Product and equipment sold and delivered by Seller to Purchaser, whether presently in possession of Purchaser or hereafter acquired, and all spare parts and components, together with any and all proceeds of sale or other disposition of Product, including, but not limited to, cash, accounts, contract rights and chattel paper. As a condition to the sale of the Product, upon request of Seller, Purchaser shall as necessary join with Seller in executing one or more financing statements pursuant to the Seller to evidence Seller’s security interest in the Product. Purchaser shall keep the Product free from any adverse lien, security interest or encumbrance. In the event Purchaser shall be in default under this Sale, Seller shall have the remedies of a secured party under the Uniform Commercial Code in force in the state or province as provided for in these terms and conditions and where the Product is located and Seller may enter the Purchaser’s premises and remove the Product.
9. RETURN OF GOODS. Purchaser shall not return the Product sold hereunder unless it first obtains written authorization from Seller. Seller does not guarantee that it will accept returned products. Purchaser shall bear all return shipping costs and risk of loss F.O.B. Seller’s place of business.
10. PATENT INFRINGEMENT. Seller’s liability for patent infringement (and the liability of the Manufacturing and Selling Parties) is limited to Seller’s defense of any suit or proceeding brought against Purchaser based on a claim that the Product sold hereunder, when employed in the manner intended by Seller, constitutes an infringement of any patent of the United States. If Purchaser’s use of the Product in the manner intended by the Seller is finally enjoined, Seller shall at its option, procure for Purchaser the right to continue using the Product, replace the same with non-infringing product, modify the Product so that it becomes non-infringing, but equivalent to the Product sold hereunder, or refund the purchase price(less allowance for use, damage or obsolescence). Seller makes no warranty against patent infringement resulting from portions of the Product made to Purchaser’s specifications or the use of Product in combination with any other Product or in the practice of any process and if a claim, suit or action is based thereon, Purchaser or in the practice of any process and if a claim, suit or action is based thereon, Purchaser shall defend, indemnify and save Seller and the Manufacturing and Selling Parties harmless from and against any and all claims, losses or damages arising therefrom.
11. CONFIDENTIALITY. All drawings, designs, specifications, manuals and programs furnished to Purchaser by Seller shall remain confidential land Seller’s proprietary property. All such information, except as may be found in the public domain, shall be held in strict confidence by Purchaser and shall not be reproduced nor disclosed by Purchaser to any third parties. Copyright in all materials made available by Seller remain in Seller at all times.
12. SAFTY PRECAUTIONS. Purchaser shall require employees and user to use all safety devices, guards, and proper and safe operating procedures as set forth in manuals and instructions furnished by Seller or as required by law. Purchaser shall not remove or modify any such device, guard or sign. Purchaser is responsible to provide all means necessary to effectively protect all employees from serious bodily injury, which otherwise may result from the method of particular use, operation or set-up or service of the Product. If Purchaser fails to comply with such provisions of this paragraph or the applicable standards or regulations aforementioned. Purchaser shall indemnify and save Seller harmless from and against any and all claims, losses or damages, including but not limited to special, incidental, consequential and lost profits arising therefrom.
13. FORCE MAJEURE. Seller’s obligations hereunder are subject to, and Seller shall not be held responsible for, any delay or failure to make delivery of all or any part of the Product due to labor difficulties, fires, casualties, accidents, acts of the elements, acts of God, transportation difficulties, delays by a common carrier, inability to obtain Product, materials or components or qualified labor sufficient to timely perform part of or all of this Sale, governmental regulations or actions, strikes, damage to or destruction in whole or part of or any other causes, contingencies, or circumstances within or outside the United States not subject to the Seller’s control which prevent or hinder the manufacture or delivery of the Product. In the event of the occurrence of any of the foregoing, at the option of Seller, Seller shall be excused from performance of this Sale, or the time performance for Seller shall be extended.
14. GOVERNING LAW, JURISDICTION, VENUE AND WAIVER. Except for the perfection of any security interest or lien in any other state, and as otherwise provided herein, these terms and conditions will be governed and construed in all respects by the internal laws and decisions, other than any conflict of provisions, of the State of Illinois, including, without limitation, all matters of construction, validity, enforceability, and performance. PURCHASER (I) CONSENTS AT SELLER’S ELECTION AND WITHOUT LIMITING SELLER’S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT (FEDERAL or STATE) SITUATED IN THE STATE OF ILLINOIS; (II) WAIVES ANY OBJECTION TO IMPROPER VENUE AND INCONVENIENT FORUM; AND (III) CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED TO PURCHASER AT ITS ADDRESS AS SET FORTH HEREIN. PURCHASER HEREBY WAIVES TRIAL BY JURY OR PUNITIVE DAMAGES FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS OR THE RELATIONSHIP OF THE PARTIES HERETO UNLESS OTHERWISE AGREED TO IN WRITING BY THE PARTIES. Purchaser shall bring any action arising out of these terms and conditions only in the federal or state courts in the State of Illinois in the event Purchaser shall assume all of Seller’s costs in transferring said proceeding to a court located in the State of Illinois, including, without limitation, reasonable attorneys fees.
15. MISCELLANEOUS PROVISIONS.
(a) These terms and conditions constitute the terms and conditions between the parties and supersede any and all prior oral or written agreements, correspondence, quotations or understandings heretofore in force between Seller and Purchaser with respect to the Product herein except those specifically set forth in and made part of this these terms and conditions. Any additional terms, and/or prices are rejected by Seller.
(b) If any term or condition or part of these terms and conditions is held invalid, the remaining terms and conditions of these terms and conditions shall not be affected thereby.
(c) These terms and conditions may be modified, canceled or rescinded only by a written agreement of both parties executed by their duly authorized agents.
(d) All rights available to Seller under the Uniform Commercial Code except as specifically limited or excluded herein (even though not specifically enumerated), ate reserved to Seller as remedies available in the event of default of Purchaser.
(e) Any failure by either party to enforce at any time any term or condition hereof shall not be considered a waiver of such party’s right thereafter to enforce the same or any other term or condition.
(f) No cause of action arising out of or relating to the Product or any claimed breach of these terms and conditions may be asserted by Purchaser, whether in contract tort or otherwise, more than one (1) year after the date on which such cause of action first accrued.