Terms & Conditions – Seller

Terms & Conditions – Seller

1. These Terms and Conditions, together with any related Shibuya Hoppmann Proposal and all mutual written understandings, agreements, memoranda, letters, exhibits and other documents constituting the arrangements and executed by authorized representatives of the parties, form the entire agreement between Shibuya Hoppmann and Customer regarding Shibuya Hoppmann products and Equipment. Changes to these Terms and Conditions agreed to by Shibuya Hoppmann and Customer prior to release of the Purchase Order will be listed on the front of the Customer Purchase Order.
2. A new proposal or new “Terms and Conditions ” submitted as part of a Change Order (defined below), or as any submission, will not alter these Terms and Conditions unless all parties, fully authorized, have specifically and knowingly agreed to them in writing and have initialed each such provision. In the event of any conflict, the standard Shibuya Hoppmann Terms and Conditions will prevail. The Customer agrees that mere attachment of new or alternative “Terms and Conditions” to an otherwise accepted document does not constitute acceptance or amendment in whole or part or constitute an amendment of these Terms and Conditions.
3. The following will have the specific meanings and effect:
   1. Change Order ” shall mean a written instrument prepared by Shibuya Hoppmann and signed by the Customer, stating their mutual agreement on the change in the design, engineering, assembly, testing, debugging, acceptance, Delivery, shipment, or amount of adjustment in the prices as a result of the changes. In the event substantial changes in the Scope of Work are necessary, Shibuya Hoppmann will notify Customer or the Customer may request a Change Order. Shibuya Hoppmann may make minor changes if they do not involve adjustment in the price or extension of time for Delivery. Shibuya Hoppmann will promptly inform the Customer, in writing, of minor changes.
   2. Delivery” shall mean FOB Shibuya Hoppmann, unless otherwise provided in writing. If Customer has made payment of all amounts due, Delivery will occur promptly after acceptance of the Equipment at Shibuya Hoppmann. Shibuya Hoppmann may select the mode of shipment and carrier. Risk of loss passes to Customer at the time of Delivery, regardless of how the freight is paid. Customer will insure the Equipment against all risks, including damage and shipment, until final payment is made, with policies payable to Shibuya Hoppmann as a loss payee. Customer will be liable for any storage, warehouse or demurrage and any other charges caused by Customer’s failure to accept Delivery.
   3. Equipment” shall mean items set forth in the Proposal (as amended from time to time), which Shibuya Hoppmann agrees to sell to Customer. Acceptance of the Equipment will occur on Shibuya Hoppmann’s floor and will mean that the Equipment performs to a satisfactory level as required by the customer. Customer agrees that acceptance constitutes the successful completion of the Equipment and that the Shibuya Hoppmann warranty commences on such date as an independent obligation.
   4. License” shall mean a nonexclusive, nontransferable license to use the know-how, concepts and Trade Secrets comprising the products and Equipment. At acceptance of the Equipment, Shibuya Hoppmann will grant to Customer, a License limited to any ideas, concepts, forms, and uses of the Equipment (including, if applicable, forms of software, user manuals thereto, copies, modifications, enhancements, revisions, or updates) necessary to make the Equipment function according to its intended use. Except as provided herein, Customer acquires absolutely no right, title or interest in the Trade Secrets or confidential information of Shibuya Hoppmann.
   5. Scope of Work” shall mean the plans, specifications, directives and other documents that define the efforts of Shibuya Hoppmann and the Customer.
   6. Trade Secret ” shall mean any information, including but not limited to a formula, pattern, compilation, program, device, method, technique or process, regardless of whether it derives independent economic value, actual or potential, from not being generally known. “Shibuya Hoppmann Trade Secret” is a Trade Secret belonging to Shibuya Hoppmann. “Customer Trade Secret” is a Trade Secret belonging to Customer. Shibuya Hoppmann Trade Secrets and Customer Trade Secrets may not be copyrighted, trademarked or patented by the other nor may the other copy confidential information except for backup and archival purposes.
4. Shibuya Hoppmann may cancel Delivery of the Equipment, without penalty, if Shibuya Hoppmann suffers (i) limitations outside its control, (ii) force majored, (iii) strikes or other labor problems, (IV) fires, floods and natural disasters, or (V)) inability to obtain essential parts or raw materials.
5. Customer will provide and remains solely responsible for all necessary design, engineering, setup, test and debugging of the interface between the Equipment and Customer machinery, regardless of location, and Customer bears the sole responsibility for final installation of the Equipment in the Customer’s plant. Customer will submit a certified part print and will furnish a sufficient quantity of production grade samples for debugging and acceptance at no cost to Shibuya Hoppmann. Notwithstanding anything to the contrary, startup remains an independent arrangement and is specifically not included as part of the Equipment sale. If the Proposal includes startup service, it will be deemed a separate contract, without any effect on the sale of the Equipment. In such event the Customer will set the Equipment in place, level it, properly align it with any other interconnecting machinery, and make all basic mechanical, electrical, air and fluid power connections. All Customer machinery furnished for such startup will be provided at no cost to Shibuya Hoppmann, and Shibuya Hoppmann will not be liable for any damages or costs unless caused by the negligence of Shibuya Hoppmann. The Customer bears the responsibility for delays resulting from the lack of sample parts or product, interconnecting machinery or plant service problems, operators or mechanics not in attendance or any other problem not within the control of Shibuya Hoppmann. Further, Customer will be responsible at Shibuya Hoppmann’s current rate schedule for any additional service time required by such delays, or service requested after the startup period.
6. Customer may cancel the Equipment upon the payment of all amounts due. In the event no other specific provisions establish with reasonable certainty the amounts due, Customer will pay Shibuya Hoppmann an amount equal to the sum of all direct material costs (including restocking charges), all direct labor and related burden costs, along with a proportionate level of profit on all such costs associated with the Equipment (unless otherwise provided). The minimum cancellation fee due Shibuya Hoppmann will be an amount equal to thirty percent (30%) of the total Contract price.
7. Customer hereby grants Shibuya Hoppmann a security interest and lien in the Equipment to secure each and every payment of the purchase price of the Equipment. Customer will assist Shibuya Hoppmann in promptly executing and recording any document, notices, or security agreements, which Shibuya Hoppmann reasonably deems necessary to perfect the security interest and to publicly record its security interest. Shibuya Hoppmann will release its security interest upon receipt of all required payments. Shibuya Hoppmann will cooperate with Customer in promptly executing and recording any notices or documents, which Customer reasonably deems necessary to publicly record such release.
8. Customer will be in default if it (1) fails to make any payment or any other indebtedness or obligation hereunder within 15 days after it is due; (2) fails to perform or observe any other material covenant or agreement and such failure continues for 30 days after written notice from Shibuya Hoppmann; (3) makes any untrue material representation, warranty, certification or statement to Shibuya Hoppmann; or (4) makes an assignment for the benefit of creditors or bankruptcy, arrangement, reorganization, liquidation, insolvency, receivership or dissolution proceedings are instituted by or against Customer, and are not dismissed for a period of 30 days. Shibuya Hoppmann may, at its option and without further notice, declare the Customer in default and, without limitation, may exercise any or all of the following remedies: (a) terminate the contract upon written notice to Customer; (b) enter upon the premises where the Equipment is still subject to a security interest of Shibuya Hoppmann and, without notice to Customer and without full legal process, take immediate possession without liability and require Customer to disassemble and make the Equipment available to Shibuya Hoppmann; (d) have all other rights, privileges, powers and remedies provided by law and these Terms and Conditions, including the right to recover its Equipment, to sell the Equipment at auction, to apply any funds (under right of setoff or other) of Customer to the outstanding balances and those other remedies provided by Article 9 of the Uniform Commercial Code as enacted in the Commonwealth of Virginia or any other jurisdiction; (e) proceed without posting bond or other security by appropriate action either at law or in equity to enforce performance or any remedy and to recover damages and expenses for breach of contract. None of Shibuya Hoppmann’s remedies are intended to be exclusive, but each will be cumulative and in addition to any other remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO A JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY SHIBUYA HOPPMANN IN THE EVENT OF A DEFAULT HEREUNDER BY CUSTOMER. In all events, whether or not the contract is terminated, Customer will remain liable (i) for all damages provided by law, and (ii) for costs and expenses incurred by Shibuya Hoppmann arising from such default including, without limitation, reasonable attorney fees and expenses.
9. Shibuya Hoppmann will be in default if it fails to perform or observe any material covenant or agreement and the failure continues for 30 days after written notice. Delay in shipment is not a default if the delay is caused outside the control of Shibuya Hoppmann. When any default by Shibuya Hoppmann continues, Customer may, at its option and without further notice, declare the contract to be in default and (a) cancel or otherwise terminate the sale and (b) notify Shibuya Hoppmann to disassemble and restock the Equipment within 60 days. In the event that Shibuya Hoppmann has shipped the Equipment prior to Delivery and post-shipment performance is specifically made part of the contract (and not part of the warranty), but Shibuya Hoppmann has failed to perform after 60 days notice, Customer may take the least expensive (to Shibuya Hoppmann) of the following remedies: (1) obtain performance from someone other than Shibuya Hoppmann at Shibuya Hoppmann’s cost; (2) remove and sell the Equipment and recover from Shibuya Hoppmann the reasonable costs of such removal and sale less the proceeds of such sale, plus attorney fees not to exceed $2,000; or (3) accept from Shibuya Hoppmann the liquidated sum of the price of the post shipment startup cost. Customer will have no other remedies against Shibuya Hoppmann. In no event will Shibuya Hoppmann or its officers, directors, employees, agents, assigns or affiliates be liable for indirect, incidental, consequential or special damages, including but not limited to loss of use or anticipated profits, whether in an action in contract or tort. Shibuya Hoppmann will not be liable for delay or failure to carry out any of its obligations under these Terms and Conditions where such delay or failure is caused by Customer or any other cause beyond the reasonable control of Shibuya Hoppmann.
10. Shibuya Hoppmann warrants the Equipment as provided in its standard warranty. Shibuya Hoppmann does not promise or warrant uninterrupted or error free operation of the Equipment. SHIBUYA HOPPMANN SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR ANTICIPATED PROFITS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY, AS A RESULT OF THIS AGREEMENT OR ANY BREACH THEREOF.
11. If Shibuya Hoppmann is registered to collect sales or use taxes in the jurisdiction to which the Equipment is Delivered, any applicable taxes will be billed directly to the Customer subsequent to shipment. Should Shibuya Hoppmann not be registered in the jurisdiction of Delivery, the Customer will be responsible for remitting any applicable sales or use tax directly to the proper taxing authorities. The Customer will provide proof of payment to Shibuya Hoppmann upon its reasonable request. If a sale is exempt from taxation under any law, the Customer will provide a certificate of exemption to Shibuya Hoppmann.
12. These Terms and Conditions and all contractual relation will be governed by and construed in accordance with the laws of the Commonwealth of Virginia.
13. In the event an arbitration, suit or action is brought by any party to enforce any of these terms, or in any appeal therefrom, the prevailing party will be entitled to reasonable attorney fees.