Terms and Conditions
These Terms and Conditions set forth the terms and conditions pursuant to which a purchaser ("Purchaser") will purchase and Shima American Corporation ("Seller") will sell its products ("Products"). Unless other terms are specifically agreed to by Shima American in writing, these Terms and Conditions shall govern and apply to the sale of all Products by Seller, regardless of any terms and conditions appearing on any purchase order or other forms submitted by Purchaser to Seller, given verbally by Purchaser to Seller, or appearing on Purchaser's website. Seller rejects any and all other additional, contrary or inconsistent terms and conditions.
2. Web Site Disclaimer
This web site provides basic information relating to Shima American Corporation. The web site, including all information, charts, formulas, factors, accuracy standards, tolerances and applications recommendations contained herein, or accessible via a link is only a starting point for the customer's selection of appropriate products, and may not apply in all intended applications. The web site is not a substitute for a proper application analysis conducted by an experienced, knowledgeable design engineer. Product selection should be based upon your specific application needs and conditions, which will vary greatly depending on many factors. No specific product application should be based solely on the information contained on this web site. All purchases of Products from Seller are subject to the Shima American Corporation limited warranty, which supersedes and replaces any other warranties given by the manufacturer. Purchaser should confirm independently that a contemplated application is safe, appropriate, and effective.
All orders for Products shall be subject to acceptance by Seller at Seller's facilities. Purchaser shall not return any Products actually delivered to Purchaser without the written consent of, and upon terms agreed to by, Seller.
All prices for the Products are (a) F.O.B. Seller's designated shipping point or point of entry, duty paid; (b) exclusive of any and all taxes now or hereafter imposed, together with all penalties and expenses; and (c) exclusive of inland freight, insurance and other costs and expenses relating to the shipment of the Products to Purchaser. Purchaser shall be responsible for collecting and/or paying any and all such taxes, whether or not they are stated in any invoice. Purchaser shall indemnify Seller from and against the imposition and payment of such taxes. Seller may 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 taxing authorities. If Seller arranges inland transportation, all costs and expenses relating thereto shall be paid by Purchaser to Seller upon presentation of Seller's invoice therefor.
If delivery or installation of the Products is delayed due to the fault of Purchaser, all additional expenses incurred by Seller resulting from such delay shall be chargeable to and paid by Purchaser. Such expenses shall include charges for storage. Prices, specifications and materials are subject to change without notice, until Seller accepts Purchaser's purchase order subject to the Seller's Terms and Conditions. Seller will assign a shipment schedule when a purchase/sale is confirmed.
5. Delivery and Freight Charges
All delivery dates are approximate and based upon the prompt receipt of all necessary information from Purchaser. Unless otherwise instructed, Seller will ship Products to Purchaser via regular United Parcel Service (UPS) delivery or similar carrier, F.O.B. Seller's facility. Risk of loss shall pass to Purchaser at the F.O.B. point. Notwithstanding the provisions contained in these Terms and Conditions to the contrary, Seller shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from Seller's delayed performance in shipment or delivery of the Products for any reason whatsoever. All freight charges are stated on Seller's invoices and are part of Seller's payment terms.
(a) Warranty. Seller warrants that the Products sold hereunder will be free from defects in material and workmanship at the time of delivery. In the event that any defects in material or workmanship shall be discovered or become evident in the Products within ninety (90) days from the date the Products are delivered to Purchaser, Seller shall repair or replace any defective Products or part thereof, or refund the purchase price thereof, as set forth herein, at Seller's sole and exclusive election, subject to the limitations set forth in these Terms.
All parts and/or components of a Product(s) alleged to be defective shall at all times be subject to inspection by Seller and Purchaser shall not dispose of or otherwise modify or destroy the same before inspection by Seller. All such parts and/or components shall be returned by Purchaser to Seller upon Seller's request. Furthermore, all freight and related expenses for the return of any alleged defective parts/components and the shipment and delivery of replacement parts and components to Purchaser shall be for the account of Purchaser and Purchaser shall pay the same and/or reimburse Seller for the same to the extent paid/incurred by Seller.
(b) Limitations. SELLER'S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SELLER AND THE MANUFACTURER OF THE PRODUCTS (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 PARTIES BE LIABLE (AND PURCHASER SHALL NOT ASSERT ANY CLAIM) FOR SPECIAL, INCIDENTAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS.
IN ADDITION, THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCTS OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION, MAINTENANCE OR OPERATION (INCLUDING, BUT NOT LIMITED TO, THE MATTERS SET FORTH IN SUBPARAGRAPH 6 (c) HEREOF), ELECTRICAL FAILURE OR ABNORMAL CONDITIONS; AND TO PRODUCTS THAT HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, REPAIRED OR REWORKED BY ANYONE NOT APPROVED BY SELLER. THIS WARRANTY SHALL NOT APPLY TO THE PORTIONS OF THE PRODUCTS NOT MANUFACTURED BY SELLER AND ITS AFFILIATED COMPANIES.
PURCHASER'S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED, AT SELLER'S EXCLUSIVE DISCRETION, TO: (1) REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR PART THEREOF; OR (2) REPAIR OF ANY DEFECTIVE PRODUCTS OR PART THEREOF; OR (3) RETURN OF THE PURCHASE PRICE FOR ANY DEFECTIVE PRODUCT OR PART THEREOF. IN NO EVENT SHALL SELLER'S LIABILTY HEREUNDER OR OTHERWISE ARISING RELATIVE TO THE SALE OF THE PRODUCTS EXCEED IN ANY EVENT OR UNDER ANY THEORY OR CAUSE OF ACTION, THE PURCHASE PRICE PAID BY PURCHASER TO SELLER FOR THE DEFECTIVE PRODUCT(S).
The warranty and remedy set forth above are conditioned upon the proper storage, use and maintenance of the Products and conformance with all applicable recommendations of the Manufacturing and Selling Parties with respect to the Products. No agent, employee or representative of Seller (or any distributor, dealer or sales representative of Seller) has the authority to bind Seller to any affirmation, representation or warranty concerning the Products sold hereunder, and unless such affirmation, representation or warranty is specifically included in these Terms and Conditions, it will not form a part of the basis of these Terms and Conditions and shall in no way be binding upon the Seller or enforceable by Purchaser.
7. Patent Infringement
Seller warrants that the Products will not in and of themselves infringe any patent of the United States. 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 Products sold hereunder, when employed in the manner intended by Seller, con¬stitute an infringement of any patent of the United States. If Purchaser's use of the Products in the manner intended by Seller is finally enjoined, Seller shall, at its option, either procure for Purchaser the right to continue using the Products; replace the same with non-infringing Products; modify the Products so that they become non-infringing, but equivalent to the Products sold hereunder; or refund the purchase price (less allowance for use, damage or obsolescence).
In no event will Seller and/or Selling Companies be liable for any patent infringement based on the use of the Products for purposes other than those for which they are sold by Seller. Seller makes no warranty against patent infringement resulting from portions of the Products made to Purchaser's specifications or the use of Products in combination with any other Products or in the practice of any process and if a claim, suit or action against the Manufacturing or Selling Parties 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 there from.
8. 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 Products due to acts or circumstances beyond the control of Seller, including, but not limited to, labor difficulties, fires, casualties, accidents, acts of God, acts of terrorism, transportation difficulties, inability to obtain Products, materials or components or qualified labor sufficient to timely perform part or all of any obligation, or governmental regulations or actions. In the event of the occurrence of any of the foregoing, at the option of Seller, Seller shall be excused from the performance hereunder or the performance of the Seller shall be correspondingly extended.
9. Miscellaneous Provisions
a. These Terms and Conditions shall constitute the entire agreement between Seller and Purchaser as it relates to the purchase and sale of Products to Purchaser by Seller and the liability of the Manufacturing and Selling parties, and supersede any and all prior agreements, correspondence, quotations or understandings heretofore enforced between the parties relating to the subject matter hereof.
b. If any term or condition or part of these Terms and Conditions is held invalid, the remaining terms and conditions hereof shall not be affected thereby.
c. These Terms and Conditions may be modified, canceled or rescinded only by a written agreement by 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), are reserved to Seller as remedies available in the event of default or breach by Purchaser.
e. This agreement and any sale of Products to Purchaser shall be deemed to have been made in and governed by the substantive laws of the State of Illinois, without regard to choice of-law provisions.
f. Any claims relating to the sale or use of the Products and/or the relationship between Seller and Purchaser shall be asserted only in the state or federal Courts located in Cook County, Illinois. Purchaser hereby consents to the jurisdiction and venue of said courts.
g. 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 hereof.
h. These Terms and Conditions shall be binding upon the successors and legal representatives of Purchaser and Seller.
i. The Terms and Conditions and any agreement between the parties may not be assigned without the express written consent of the parties hereto. Any attempted assignment of rights or delegation of duties shall be void.
All drawings, designs, specifications, manuals and programs furnished to Purchaser by Seller shall remain the confidential and proprietary property of Seller. Purchaser hereby agrees that such information, except as may be found in the public domain, shall be held in strict confidence by Purchaser and shall not be disclosed or circulated by Purchaser to any third parties. Copyright in all materials made available by Seller shall remain in Seller at all times.
11. Safety Precautions
Purchaser shall require all employees to use all safety devices, guards, and proper safe operating procedures set forth in manuals and instructions furnished by Seller. Purchaser shall not remove or modify any such device, guard or sign. It is the Purchaser's responsibility to provide all the 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 or set-up or service of the Products. If Purchaser fails to comply with the provisions of this paragraph or any applicable standards or regulations, Purchaser shall indemnify Seller and the Selling Companies from and against all claims, losses or damages arising therefrom.
12. Not for Resale or Export
All Products (and all information, technology, hardware, firmware and/or software contained therein) sold by Seller are sold for use within the United States only and Purchaser shall not export the same. Purchaser acknowledges that in the event that Purchaser attempts to export any Products, any subsequent export, transfer, resale or other disposition of the Products from the United States must be made in accordance with applicable law. Diversion contrary to U.S. law is strictly prohibited. In furtherance hereof, in the event of any such export, Purchaser shall (a) comply with all applicable export/export control laws, rules and regulations of the United States and any other foreign countries, governments, agencies or authorities (collectively, the "Laws"); and (b) not export or re-export the Products in violation of any such Laws, or without all necessary authorizations/licenses. Purchaser agrees that the export of the Products may require export control licenses or approvals from the U.S. government or foreign governments/governmental agencies or authorities.
In cases where licenses or approvals are required, Seller has not authorized such export(s) and as such, Purchaser shall be solely responsible for obtaining such required licenses or approvals from the appropriate governmental agencies or authorities. Purchaser shall indemnify, defend and hold harmless Seller from and against any and all losses, damages, cost and expenses (including reasonable attorney's fees) sustained or incurred by Seller by reason of any failure of Purchaser to comply with any such Laws. Purchaser shall bear all expenses relating to obtaining any necessary licenses and/or exemptions required under the Laws with respect to any export of the Products from the United States.
Notwithstanding the above, neither the Products nor the underlying information, technology, hardware, firmware or software, may be exported or re-exported to (a) Cuba, Iran, Iraq, North Korea, Sudan, Syria, or any other country subject to U.S. trade sanctions applicable to the Products; (b) individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (c) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) Specially Designated Nationals List, or on the U.S. Department of Commerce, Bureau of Export Administration Denied Persons List or Entity List, or to any other party or individual subject to other government lists applicable to the Products (or any other similar lists that may be promulgated or maintained by the United States government from time to time hereafter).
Upon request by Seller, Purchaser shall provide Seller with all customer information and documentary and other assistance required to maintain strict compliance with the Laws. Purchaser shall take all actions as may be necessary to assure that no customer contravenes any Laws or the provisions of any such approvals/licenses or exemptions. Seller shall be relieved of all obligations to provide any Products, spare parts or technical data to Purchaser (or its customer(s)) if Purchaser (or such customer) violates any Laws, or if any approvals/licenses are suspended or revoked.
If you have any questions regarding this policy, please contact:
Shima American Corporation
Attn : Human Resource Dept
1005 N. Commons Drive
Aurora, Illinois 60504 USA
Phone : 630-405-0589
Email : firstname.lastname@example.org
These Terms and Conditions were last revised and made effective as of November 01, 2010.