TSURUMI (AMERICA), INC. – TERMS & CONDITIONS OF SALE
1. SCOPE – The general Terms and Conditions of Sale of products (“Products”) set forth herein apply to any purchase order based upon the proposal accepted or acknowledged by Tsurumi (America), Inc. (“Seller”) and shall prevail over any additional or inconsistent terms and conditions of any order for the Products submitted by the Purchaser. To the extent that this writing might be construed as acceptance of the Purchaser's offer, such acceptance is made strictly conditioned to assent by Purchaser to the terms of these Terms and Conditions of Sale only. Such assent may be conclusively presumed from Purchaser's receipt of the Products. Purchaser may not cancel or modify such order, in whole or in part, without the express written permission of Seller.
2. PRICE AND PAYMENT – Unless otherwise agreed in writing by Seller, Seller’s published sales prices current at the time of Seller’s acceptance of the order are applicable, (a) subject to change without notice, (b) subject to price adjustment for cost escalation for deliveries beyond standard delivery schedules and (c) F.O.B. Seller’s or its supplier’s plant.
All invoices are due and payable net 30 days from date of shipment or notification of readiness to ship by Seller, whichever is earlier, unless otherwise agreed in writing by Seller, and a service charge of 1.5% per month (annual percentage rate of 18%) or the highest rate permitted by law, whichever is lower, will be charged on all invoices overdue.
If Purchaser defaults in any payment when due, or otherwise defaults in any obligation to Seller, Seller, without incurring any liability to Purchaser or its customers, may, at its option, and in addition to its remedies under the Uniform Commercial Code, declare all amounts for work completed immediately due and payable with the service charge as set forth herein, stop all further work and shipments until all past due payments have been made, and/or require that any further deliveries be paid for prior to shipments. If requested by Seller, Purchaser shall obtain a bond or irrevocable Letter of Credit to provide guarantees of payment for the Products. In addition, Seller shall be entitled to recovery of its costs and reasonable attorneys’ fees arising out of Purchaser’s default.
3. CREDIT TERMS - All orders are subject to Seller’s acceptance and to the approval of Seller’s Credit Department. Seller reserves the privilege of declining to make deliveries when, in Seller’s opinion and for any reason, there is a doubt as to Purchaser’s financial responsibility, and Seller shall not in such event be liable for non-delivery in whole or part.
4. PRODUCTS INCLUDED – These Terms and Conditions of Sale are applicable only to the Products specified herein and, unless otherwise agreed in writing by the parties, do not include installation other than mechanical checkout or accessory or associate materials not specifically listed herein.
5. TAXES, DUTIES AND LICENSES – Any federal, state or local sales, use or other taxes applicable to this transaction, and imposed on or required to be collected by Seller, if not stated herein as included in Seller’s price, shall be added to the sale price for the Purchaser’s account. Unless otherwise stated, Purchaser shall pay all duties and tolls and provide necessary licenses and extensions thereof applicable to this transaction.
6. SECURITY INTEREST – Purchaser, as security for payment of the purchase price, hereby grants to Seller and Seller shall retain a security interest in all Products sold by Seller to Purchaser, and all proceeds arising from the sale or other disposition of the foregoing, including, but not limited to, cash, accounts, contract rights, accounts receivable, instruments and chattel paper. Purchaser shall keep the Products free from any adverse lien, security interest or encumbrance and will not store the Products or any part thereof or use the Products in violation of any statute or ordinance. Seller shall also retain the rights and remedies of a secured party under the Uniform Commercial Code in force in the state where Purchaser is organized.
Seller may retain as liquidated damages any partial payments made and may peaceably repossess the Products from the Purchaser’s premises without prejudice to any further claims. In the event legal action is necessary to enforce the rights of Seller as a secured party, Seller shall be entitled to recover its court costs and reasonable attorney’s fees, if it prevails.
7. INSURANCE –Purchaser agrees to provide and maintain at its expense for Seller’s benefit, insurance adequate to fully protect Seller’s interest in the Products against any loss of or damage to the Products for any nature whatsoever.
8. SHIPMENTS AND DELIVERY – Seller shall use its reasonable efforts to meet all shipment or delivery dates stated herein or in Purchaser’s order but any such dates are estimates only and cannot be guaranteed. Seller shall have no liability to Purchaser for damages or penalties, direct or indirect, of any delay in shipment or delivery, whether such delay is minor or substantial, nor shall Purchaser have the right to declare a breach of contract because of any such delay. Delivery schedules are subject to prompt receipt by Seller of any necessary information and instructions for Purchaser, including any required approval of drawings.
Unless otherwise agreed in writing by Seller, Seller shall have the right to make partial shipments.
Unless otherwise agreed in writing by Seller, all shipments are F.O.B. Seller’s or supplier’s plant and risk of loss or damage is on Purchaser upon delivery to a carrier. All claims for damages, delay or shortage arising from any shipment shall be made directly against the carrier by Purchaser. When shipments are specified F.O.B. destination, Purchaser shall inspect the Products shipped and notify Seller of any damage or shortage within 24 hours of receipt. Failure to notify Seller shall constitute acceptance by Purchaser relieving Seller of any liability for shipments.
If Purchaser refuses to take delivery at the F.O.B. point of shipment for reason of delay or any other reason other than permitted herein, Seller may store the Products at Purchaser’s expense and risk. Such tender shall constitute delivery and the full purchase price for the Products tendered shall be due and payable pursuant to the payment term herein.
9. CANCELLATION, SUSPENSION OR DELAY – In the event Purchaser requests or causes a cancellation, suspension or delay in any of Seller’s work under these Terms and Conditions of Sale or order based thereon, Purchaser shall pay to Seller all appropriate charges, including but not limited to any costs, expenses and commitments incurred by Seller up to the date or receipt of notice of such cancellation, suspension or delay, plus Seller’s overhead and reasonable profit if shipment is delayed on account of Purchaser. The purchase price shall be due and payable as if delivery had been made. Additionally, all charges related to storage, disposition and/or resumption of work, at Seller’s plant or elsewhere, shall be for Purchaser’s sole account and all risks incidental thereto shall be assumed by Purchaser.
10. LIMITATION OF LIABILITY – SELLER SHALL NOT BE LIABLE TO PURCHASER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, INCLUDING BUT WITHOUT LIMITATION, DAMAGES IN THE CHARACTER OF (A) LOSS OF PROFITS OR REVENUE RESULTING FROM THE FAILURE OF THE PRODUCTS, (B) DAMAGES SUFFERED BY PURCHASER AS A RESULT OF LOSS OF PRODUCTION FACILITIES OR THE PRODUCTS, (C) COST OF REPLACED PRODUCTS OTHER THAN THE PRODUCTS SOLD BY SELLER, (D) DAMAGES SUFFERED BY CUSTOMERS OF PURCHASER, AND (E) ANY FINES OR PENALTIES ASSESSED FOR FAILURE TO COMPLY WITH ANY LAW OR GOVERNMENTAL REGULATIONS.
Purchaser expressly assumes all liability whether based upon contract warranty, negligence or strict liability in tort, or otherwise, and will indemnify Seller for all claims arising there from or out of Purchaser’s negligence, gross negligence, willful misconduct or abusive operation of the Products, including the failure to follow operation instructions and warnings relating to the Products.
11. FORCE MAJEURE – Seller shall not be liable for any failure to perform or delay in performance, caused by circumstances beyond its reasonable control which make such performance commercially impracticable, including, but not limited to, fire, storm, flood, earthquake, explosion, acts of a public enemy, war, insurrection, sabotage, epidemic, quarantine restrictions, terrorist acts, labor disputes, labor shortages, embargoes, or failure or delays in transportation, inability to secure raw materials or machinery, acts of God, acts of government authority, whether or not valid, or judicial action, whether or not valid. In the event of shortage, unavailability, or significant increase in the price of commodities, materials or components, Seller may, at its sole option, increase the price of the Products for which the order had already been accepted by Seller to compensate for the changes in these conditions.
12. CHANGES – Any changes in or additions to the scope of work or alterations to the order which are initiated by Purchaser or result from and circumstance beyond Seller’s control and which result in additional engineering and/or production costs shall be for the account of Purchaser and subject to additional charge.
13. PROPRIETARY INFORMATION – All information by Seller is submitted solely for Purchaser’s consideration and shall not be used by Purchaser nor disclosed to any third party without Seller’s prior written consent.
14. REMEDIES OF SELLER – In addition to any other remedies of Seller provided hereby or by law, in the event Purchaser becomes bankrupt or insolvent, or assigns assets to the benefit of creditors or undergoes a substantial deterioration of its financial condition, Seller may, at its sole option, declare breach of contract, stop all work hereunder, or demand payments in advance as security for its performance hereunder.
15. ASSIGNMENT – Purchaser shall not assign this contract nor any interest herein or rights hereunder without the prior written consent of Seller, and any attempted assignments shall be invalid at Seller’s sole option.
16. BACKCHARGES – Seller will not approve or accept returns or back charges for labor, materials or other costs incurred by Purchaser or others in modification, adjustment, service or repair of the Products furnished by Seller unless such returns or back charges have been previously approved in writing by an authorized employee of Seller.
17. LIMITED WARRANTY – The Seller warrants products of its own or its affiliate’s manufacture to be free from defects in material and workmanship under normal use and service for a period of one year after date of shipment. The Seller’s obligation under this warranty is limited to repairing or replacing the defective parts without charge, F.O.B. its plant, another location designated by it, or, at its sole option, returning the purchase price to the Purchaser by crediting the Purchaser’s account or otherwise. In no event shall the remedy for alleged damage or defective goods, irrespective of whether such defects are discoverable or latent, exceed the purchase price of the particular goods with respect to which losses or damages are claimed. THE FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE NO OTHER WARRANTIES INCLUDING SPECIFICALLY BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The Seller’s warranty shall not apply to: (a) normal wear and tear, (b) Products or parts thereof which have been altered or repaired except by Seller or those authorized by Seller, or damaged by improper installation or application, or subjected to misuse, abuse, neglect, or accident, (c) Products incorporating replacement parts not manufactured by Seller or its affiliate and not under the strict engineering and product quality control standards. Seller disclaims product liability or otherwise for any Products in which such parts described under (c) herein are used, and Purchaser shall indemnify Seller for any claim brought by any third party arising out of damages caused by such parts.
Immediately upon receipt of the Products, Purchaser shall inspect the same. All claims, including claims for alleged defective goods, whether discoverable upon inspection or undiscoverable until use, MUST BE MADE IN WRITING AND RECEIVED BY SELLER WITHIN FIFTEEN (15) DAYS AFTER PURCHASER LEARNS OF THE FACT UPON WHICH SUCH CLAIM IS BASED, BUT IN NO EVENT LATER THAN THE WARRANTY PERIOD PROVIDED HEREIN. All claims not made in writing and received by the Seller within the time period specified herein shall be deemed waived. The Seller reserves the option of requiring the return of alleged defective parts (transportation prepaid) if necessary to establish the validity of a claim.
18. APPLICABLE LAW AND JURISDICTION – These Terms and Conditions of Sale shall be governed by the law of the State of Illinois, without reference to its conflicts of law principles. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that all disputes arising out of these Terms and Conditions of Sale, the purchase or sale of Products and/or the relationship of the parties shall be settled by submission to arbitration to the American Arbitration Association ("AAA") with such arbitration to take place in Chicago, Illinois under the Commercial Rules of Arbitration of the AAA. If any suit or proceeding shall be brought in any court, the court shall, on application of one of the parties, stay the action until such arbitration has been had in accordance with the terms of these Terms and Conditions of Sale, unless otherwise set forth herein. Notwithstanding the foregoing to the contrary, Seller reserves the right to bring an action for equitable relief or replevin (or enforcement of a security interest) in an appropriate case, and the parties' agreement to arbitrate hereunder shall not stay or otherwise affect Seller's right to petition a court of competent jurisdiction for equitable relief in appropriate circumstances, or for the purpose of repossessing or replevining Products.
19. GENERAL PROVISIONS. These Terms and Conditions of Sale express the entire agreement between the parties hereto with respect to the sale and purchase of the Products and supersede any previous communications, representations or agreements, whether oral or written. If any term or condition of these Terms and Conditions of Sale is held invalid, the remaining terms and conditions of these Terms and Conditions of Sale shall not be affected thereby. Any failure by either party hereto to enforce at any time any term or condition of these Terms and Conditions of Sale shall not constitute a waiver of same or any subsequent default. No addition to, or modification of, any of the foregoing terms and conditions shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.