TOSOH SMD, INC.
STANDARD TERMS AND CONDITIONS OF SALE
IF TOSOH SMD, INC. HAS SIGNED A SUPPLY OR CONSIGNMENT AGREEMENT WITH THE BUYER, THE TERMS AND PROVISIONS OF THAT SIGNED SUPPLY OR CONSIGNMENT AGREEMENT SHALL SUPERSEDE THE TERMS AND CONDITIONS STATED BELOW.
1. Acceptance. BY ORDERING, PAYING FOR OR ACCEPTING ANY PRODUCT SOLD BY TOSOH SMD, INC. (“TOSOH”), BUYER AGREES TO ALL THE TERMS AND CONDITIONS STATED BELOW. Acknowledgement or receipt by any employee or agent of Tosoh of Buyer’s purchase order or other document containing additional or different provisions, or conflicting oral representations by an employee or agent of Tosoh, shall not vary this Agreement and any such additional or different provisions or representations are rejected. This Agreement may be changed only by a writing signed by an authorized representative of Tosoh stating that it is modifying this Agreement.
2. Quotation; Pricing; Order Acceptance. Tosoh may withdraw its quotation at any time and all purchase orders issued by Buyer, whether they are preceded by Tosoh’s quotation or not, are subject to Tosoh’s acceptance. Pricing for the Products shall be as stated on Tosoh’s order acknowledgement and invoice.
3. Taxes/Customs; Shipping Charges. Buyer shall reimburse Tosoh for all taxes, customs, duties, excises, or other charges hereafter imposed which Tosoh may be required to pay to any government (foreign, national or local) and which are levied directly upon, or measured directly by, the sale, production, import or transportation of the Products. Insurance and shipping charges shall be detailed on Tosoh’s invoice and shall be paid for by Buyer.
4. Title, Risk of Loss, Payment Terms. Unless specified otherwise on Tosoh’s quotation or order acknowledgement, Tosoh shall arrange for shipment of Products by common carrier to Buyer’s facilities, and shipment shall be F.O.B. Tosoh’s designated shipping point (located in Grove City, Ohio). Title and risk of loss on the Products shall pass to Buyer upon Tosoh’s tender of delivery of Products to the common carrier at Tosoh’s designated shipping point. Tosoh shall invoice Buyer on or after the date of each shipment hereunder. Unless specified otherwise on Tosoh’s quotation or order acknowledgement, terms of payment shall be net thirty (30) days and any delinquent payment shall bear interest at the rate of one percent (1%) per month, up to the maximum rate of interest permitted by applicable law. Delivery of the Products shall be subject to receipt of cash or credit arrangements made by Buyer for the purchase price. If payment is not made in accordance with the applicable payment terms, or if Buyer’s credit standing has been impaired at any time, Tosoh may withhold delivery of any Products until satisfactory cash or credit arrangements have been made, and may demand in writing that Buyer provides adequate assurances of its ability to make payments under such terms. In addition, Tosoh shall have the right to cease any further delivery should Buyer voluntarily declares or places itself into, or is involuntarily placed into, bankruptcy or other similar insolvency proceedings. Buyer shall pay all costs (including reasonable attorneys’ fees) incurred by Tosoh to collect amounts due under this Agreement.
5. Inspection. Buyer shall be responsible for inspection of the Products upon arrival at Buyer’s designated location. All claims relating to quantity delivered, damage to or condition of the Products included in a shipment will be deemed waived by Buyer unless written notice thereof shall be given to Tosoh within fifteen (15) days after arrival at Buyer’s designated location.
6. Force Majeure. Tosoh shall not have any liability for its failure to make any delivery hereunder (or portion thereof) when due, if the failure is due to: (i) an act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riot, sabotage, accident, embargo, epidemic, pandemic; (ii) interruption of or delay in transportation, inadequacy or shortage or failure of normal sources of supply of materials or equipment, equipment or facility breakdowns, or labor strike or trouble; (iii) compliance by Tosoh with any direction, order or request of any governmental agency or authority; or (iv) any circumstance, without limiting the foregoing circumstances, of like or different character beyond the reasonable control of Tosoh.
7. Allocation. If, for reasons of Force Majeure or otherwise, Tosoh is unable to supply contracted quantities of Products to all its customers, Tosoh may satisfy its obligations under this Agreement by allocating to Buyer in any commercially reasonable manner a share of Tosoh’s available supply of Products.
8. Delivery Date. Tosoh shall not be obligated to deliver a Product earlier than the lead time period stated by Tosoh from time to time to Buyer for the Product. If Tosoh expects a delay in the delivery of the Products (for reasons other than Force Majeure) for more than fifteen (15) days beyond Tosoh’s lead time period for the Product, Tosoh shall immediately inform Buyer and Buyer will make a decision within two (2) days of receipt of such notice from Tosoh on whether to accept the delay or cancel this Agreement or portion of this Agreement concerning the delayed items. This will be Buyer’s sole remedy for any delay in delivery. There will be no penalty against Tosoh or right for Buyer to cancel should the delay be less than fifteen (15) days. Tosoh may deliver all or any partial quantity of the Products before any stated delivery date, provided Tosoh shall provide advance notice to Buyer.
9. Warranty/Remedies. Tosoh warrants that all Products sold under this Agreement meet the specifications that have been agreed between Buyer and Tosoh in writing and are free of defects in material and workmanship for a period of one (1) year following delivery of the Products to Buyer’s facility. If the foregoing warranty is breached, Buyer will return the applicable Products pursuant to a Tosoh Return Material Authorization at Tosoh’s risk and expense. At Tosoh’s option, Tosoh shall (i) promptly repair or replace at no cost to Buyer or (ii) refund to Buyer the appropriate amount not to exceed the purchase price of such non-conforming Products. If Tosoh finds that returned Products are conforming and without defects, Buyer shall bear all return shipping cost and the Products will be returned to Buyer, or otherwise disposed pursuant to Buyer’s instructions, at Buyer’s cost. THE FOREGOING WARRANTY APPLIES ONLY IF NONCONFORMING PRODUCTS HAVE BEEN PROPERLY HANDLED, STORED, INSTALLED AND MAINTAINED, AS THE CASE MAY BE. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. TOSOH MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. IN THE EVENT THE PRODUCTS FAIL TO CONFORM TO THE FOREGOING WARRANTY, BUYER’S SOLE AND EXCLUSIVE REMEDY IS, AT TOSOH’S OPTION, THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR REFUND OF THE PURCHASE PRICE.
10. Patents. In the event a third party brings a lawsuit or claim against the Buyer due to the infringement or alleged infringement by Products sold under this Agreement of (i) a U.S. issued patent, or (ii) a trademark, copyright or other intellectual right, Buyer will give prompt notice of such lawsuit or claim to Tosoh. Tosoh shall defend Buyer in such lawsuit or claim and Tosoh shall be responsible for the legal and related costs and expenses of such defense as well as the costs and expenses of any settlement or compromise of such lawsuit or claim, provided Tosoh shall be given full and complete authority, information and assistance (at Tosoh’s expense) for such defense and provided no settlement or compromise shall be made without Tosoh’s prior written consent. Concurrent with defending the lawsuit or claim and/or in the event a Product sold under this Agreement are held to constitute infringement, Tosoh, at its option in its sole discretion, shall have the right to do any one or more of the following: (i) retain the right for Buyer to continue using the Product; (ii) modify the Product so that it becomes non-infringing; or (iii) remove it and grant Buyer a credit for the purchase price of thereof, and cease further supply of like Products. Tosoh’s obligations do not extend to claims of infringement arising from Tosoh’s compliance with Buyer’s design, specifications or instructions, or use of any Product in combination with other items or products or in connection with a manufacturing or other process. The foregoing remedy is exclusive and constitutes Tosoh’s sole obligation for any claims of intellectual property rights infringement.
11. Limitation of Remedies. TO THE EXTENT TOSOH IS HELD LEGALLY LIABLE TO BUYER UNDER THIS AGREEMENT, TOSOH’S MAXIMUM LIABILITY IS LIMITED TO THE ACTUAL PURCHASE PRICE OF THE PRODUCTS AT ISSUE. SUBJECT TO THE PRECEDING SENTENCE, IN NO EVENT WILL TOSOH OR ITS AFFILIATES, SUBCONTRACTORS AND SUPPLIERS BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DOWNTIME COSTS AND LOST PROFITS OR REVENUES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM TORT (INCLUDING NEGLIGENCE, AND STRICT LIABILITY)).
12. Export Controls. By accepting delivery of the Products, Buyer warrants and represents that Products sold under this Agreement are for ultimate use in the country of destination (ship to location) identified on Tosoh’s quotation or order acknowledgement, and Buyer will not export the Products outside of such country of destination without first consulting with Tosoh regarding any export control laws that may be applicable to such export. If Tosoh determines in its reasonable judgment that export outside of the country of destination identified on Tosoh’s quotation or order acknowledgement requires a license or other clearance from a governmental agency with authority over the export, Buyer shall not make the export without first obtaining such required license or other clearance.
13. Governing Law. This Agreement shall be governed by the laws of the State of Ohio (without regard to principles of conflict of laws). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the transactions covered by this Agreement.
14. Assignability. Neither party may assign this Agreement without the consent of the other, which consent shall not be unreasonably withheld; provided Tosoh shall retain the right to use subcontractors to perform work on the Products.
15. Entire Contract/Amendment. These Terms and Conditions together with Tosoh’s quotation, order acknowledgment and invoice to Buyer constitute the Agreement, and the Agreement reflect the entire agreement between the parties with respect to the subject matter hereof and there are no understandings or warranties, express or implied, except as set forth herein.
16. Separability/Waivers. The provisions of this Agreement shall be deemed to be separable; if any part thereof is held to be invalid for any reason, the other terms and conditions hereunder shall remain in full force and effect. A party’s waiver of any breach or failure to enforce any of the provisions contained herein shall not be deemed to affect, limit or waive such party’s right thereafter to require compliance with the provisions contained herein.