All orders for machines and other products (herein referred to as “Products”) sold by SHIBAURA MACHINE COMPANY, AMERICA, located at 755 Greenleaf Avenue, Elk Grove Village, IL 60007 (herein referred to as “Seller”) to Purchaser (herein referred to as “Purchaser”) are governed by and sold exclusively under the following terms and conditions of sale:
Seller shall not be liable for delay in delivery caused by fires, floods, accidents, hazards of transportation, strikes, labor conditions, material shortages, including delay of material from Seller’s usual sources of supply, Federal and State legislation, and all other causes beyond Seller’s control. All risk of damage to and/or loss of the machine transfer to Purchaser at the time the machine ships from Seller’s factory or warehouse. No damage or loss of any kind shall, in any way, release Purchaser from any of its obligations. Shipping dates are approximate and are subject to prompt receipt of information. Even though every effort will be made to ship within the time estimated, due to the nature of Seller’s undertakings, notice is given that Seller shall have no liability for loss or damage (including incidental and consequential damages) resulting from Seller’s delayed performance or shipment, for any reason whatsoever.
All prices are exclusive of Federal, State, local and other excise, sales, use, property, transportation, occupational and other taxes relating to the sale, now or hereafter imposed, together with penalties and expenses, all of which shall be paid by Purchaser. Purchaser shall be responsible for collecting and/or paying any and all such taxes whether or not they are stated in any invoice for Products shipped and shall
indemnify Seller with respect thereto. Seller, at its option, may, at any time separately bill 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 the taxing
3. TERMS OF SALE & DELINQUENCY CHARGE
Unless otherwise indicated herein all sums due Seller shall be due 30 days after delivery of goods to the Purchaser. Seller reserves the right to charge interest at a rate of one and one-half percent (1.5%) per month interest charge plus an administrative late fee of five percent (5%) per month (but no more than the maximum percentage permitted by law) on all balances not paid by Purchaser within the designated net
terms. Seller reserves the right at any time 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 good and sufficient by Seller. Seller shall make no sale or shipment of any Products to Purchaser on open account or in any manner if at any time and in the sole discretion of Seller, the financial condition of the Purchaser becomes impaired
or unsatisfactory to Seller, or if at any time during such sale or shipment, Purchaser is delinquent in the payment of any account to Seller. In the event Purchaser shall (a) be in default of any of the terms and conditions hereof; or (b) become insolvent or proceedings are instituted to
declare Purchaser bankrupt; or (c) have a receiver appointed for Purchaser by any court, Seller may, at its option, terminate the sale and all associated contracts. Upon such termination by Seller, any and all claims or demands against Purchaser held by Seller shall immediately become due and payable.
4. SECURITY INTEREST
Purchaser hereby grants to Seller and Seller hereby retains a first priority security interest in all of the Products, and accessories or additions thereto, as listed in said agreement, whether presently upon Purchaser’s premises or after acquired, sold by Seller and held by Purchaser, and all spare parts and components therefore, all proceeds of their sale or other disposition, including but not limited to cash, accounts, contract rights, instruments and chattel paper. Purchaser hereby authorizes Seller to execute one or more financing statements pursuant to the Uniform Commercial Code in a form satisfactory to Seller to evidence Seller’s security interest in the Products until Seller is paid in full for said products. Purchaser shall
keep the Products free from adverse lien, security interest or encumbrance and will not waste or destroy the Products or any part thereof or use the Products in violation of any statute or ordinance. In the event Purchaser shall be in default under this Agreement; (a) Seller shall have the remedies of a secured party under the Uniform Commercial Code in force in the state of Illinois, in the state of Purchaser’s incorporation as well as in the state where the Products are physically located; and (b) Seller may enter the premises of Purchaser and remove the Products. Purchaser agrees to pay Seller’s attorney’s fees and costs incurred for the collection of any amounts due hereunder including any court associated costs used for
5. ADDITIONAL CHARGES
Except as otherwise specifically provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or any other similar charges.
6. LIMITATION OF WARRANTY
The warranty herein contained is in lieu of and excludes all other warranties, expressed, implied or statutory. Unless otherwise stated on the face hereof: All molding machines sold by Shibaura Machine Company, America has limited warranties by Seller, hydraulic machines have a period of four (4) years on Shibaura mfg. parts, three (3) years on printed circuit boards, and one (1) year on screw, barrel, non-return valve, heater
bands, hydraulic components, labor and non-Shibaura mfg. parts. Electric machines have a period of four (4) years on Shibaura mfg. parts, three (3) years on AC servo motors, amplifiers & printed circuit boards and one (1) year on screw, barrel, non-return valve, heater bands, labor and non-Shibaura mfg. parts commencing on the date of delivery of the machine to the original End User, to be free from defects in materials and workmanship. Liability under this warranty shall be limited to the replacement or repair at its factory (but not the installation) of any defective Product at Seller’s option. Parts claimed to be defective under warranty and for which repair or replacement is desired shall be, if requested by Seller, returned transportation prepaid to Seller’s plant for inspection. Results of; (a) ordinary wear and tear; (b) improper operation or maintenance; or (c) use of corrosive or abrasive materials shall not be considered a defect in material or workmanship. Any part manufactured by another is not covered by Seller’s warranty, but only by such warranty as its manufacturer gives. Concerning the repair or replacement of a defective part, Seller’s warranty will continue for the repaired or placement part for the remainder of the above stated period
for the original part.
7. LIMITATION OF REMEDY
If any portion of the Products delivered to Purchaser is defective, Seller shall have the right in its sole discretion to either replace any defective part, or supply without charge, FOB, its portion of the purchase price applicable thereto. Seller shall have the option of requiring the return of these defective materials, transportation prepaid, to establish any claim. Seller and Purchaser acknowledge the Purchaser’s sole and
exclusive remedy against Seller shall be for the repair and replacement of defective parts as provided herein. In no event nor for any reason whatsoever shall Seller be obligated or liable to Purchaser in any manner for consequential or incidental damages, including, but not limited to, lost profits, plant down time, or suits by third parties.
8. INSTALLATION AND FIELD SERVICE
Purchaser is to make, at his expense, all service connections necessary for operating the machine such as electricity, water, steam and air. Seller will furnish a field serviceman, for the purpose of checking final erection, instructing operators and starting the machine. Such service includes one (1) round trip from such base point as the Seller may determine, and includes traveling, and living expenses covering this specific period of service.
9. CANCELLATION OF ORDERS
Purchaser shall not countermand or cancel any order or cause the work or shipment to be delayed, except with the written consent of and upon terms agreed to by Seller and with full compensation to Seller for any and all loss sustained by reason of cancellation.
10. SAFETY PRECAUTIONS
Purchaser shall require its employees to use all safety devices, guards, and proper safe operating procedures as set forth in manuals and instruction sheets furnished by Seller. Purchaser shall not remove or modify any such device, guard or warning sign. It is the user’s responsibility to provide all means that may be necessary to effectively protect all employees from serious bodily injury which otherwise may result from the method of particular use, operation, set up or service of the Products. The operators or machine manual, ANSI safety
standards, OSHA regulations and other sources should be consulted. If Purchaser fails to comply with provision of this paragraph or the applicable standards and regulations aforementioned, and a person is injured as a result thereof, Purchaser agrees to indemnify and save Seller harmless from any liability or obligation incurred by Seller.
11. WAIVER OF JURY TRIAL
SELLER AND PURCHASER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION BASED UPON THIS AGREEMENT.
12. MISCELLANEOUS PROVISIONS
(a) The foregoing comprises the Seller’s and Purchaser’s entire agreement, and constitutes the final expression of all terms of the agreement between the Seller and Purchaser and is a complete and exclusive statement of those terms. The provisions contained herein entirely supersede any and all prior oral or written correspondence, quotation, or agreement. There are no agreements between Seller and Purchaser
with respect to the Product herein except as set forth in writing and expressly made part of this Agreement. Acceptance of this Agreement is limited to the terms, conditions; specifications and prices set forth herein or attached hereto and any additional terms, conditions, specifications and/or prices are rejected by Seller unless expressly agreed to in writing by Seller and made a part of this Agreement.
(b) Any provision of this Agreement which is unenforceable shall not effect the enforceability of the remaining provisions hereof.
(c) Purchaser represents, warrants and covenants with Seller that this Agreement has been duly executed and authorized and requires no further approval of any kind or nature whatsoever and constitutes a legal and binding obligation of Purchaser enforceable in accordance with its terms.
(d) This Agreement may be modified or rescinded only in writing signed by both parties or their duly authorized agent.
(e) No claim or right arising out of a breach of this contract may be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is in writing, signed by the aggrieved party.
(f) No delegation of any obligation owed, nor performance of any obligation, by Purchaser shall be made without the written permission of Seller. Any attempted assignment or delegation shall be wholly void.
(g) All rights available to Seller under the Uniform Commercial Code, even though not specifically enumerated herein, are expressly reserved to Seller as remedies available to it in case of Purchaser’s breach.
(h) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. At Seller’s election and without limiting Seller’s right to commence an action in any other jurisdiction, PURCHASER HEREBY CONSENTS TO THE
JURISDICTION AND VENUE OF ANY COURT (FEDERAL, STATE OR LOCAL) SITUATED IN THE COUNTY OF COOK, STATE OF ILLINOIS AND HEREBY WAIVES ANY OBJECTION BASED UPON IMPROPER VENUE AND/OR FORUM NON CONVENIENS.
(i) All notices and demands required or permitted under this Agreement shall be in writing, which shall be deemed completed when deposited in the United States mail with postage prepaid to the last know address of Purchaser.
(j) The parties acknowledge that this agreement has multiple copies and that one copy has been signed in the original and the others bear carbon copies of said original signature. The parties further agree that each carbon signature is intended to authenticate this writing and that each carbon signature is to be considered and deemed to be an original.