Terms and Conditions of Sale
All proposals, quotations and orders for the sale of MAZAK OPTONICS CORPORATION (“MAZAK”) products, or for the rendering of services by MAZAK, are subject to the following terms and conditions.
1. DEFINITIONS. For purposes hereof; (i) The term “BUYER” means the person or company purchasing as indicated on the front hereof or otherwise on the Agreement; (ii) The term “Products” means MAZAK machine tools or related equipment, parts or accessories or combinations or components thereof specified on the front hereof or otherwise; (iii) The term “Non-Customized Products” shall mean those Products that MAZAK determines, in its sole discretion, to be of a standard type routinely manufactured by MAZAK and for which there is relatively continuous purchaser demand; (iv) The term “Customized Products” shall mean those Products that MAZAK determines, in its sole discretion, to be of a non-standard type specially manufactured for a specific number of orders and for which there is not relatively continuous purchaser demand; and (v) The term “Agreement” means these terms and conditions and those expressly referenced herein and (a) any MAZAK proposal, bid or similar document setting forth the prices of any Products and (b) any MAZAK Sales Order Confirmation, Acknowledgment or Installation Form provided by MAZAK and relating to the Products, and (c) any document evidencing or relating to the purchase of any Product.
2. ACCEPTANCE OF AGREEMENT. ACCEPTANCE BY MAZAK OF BUYER’S ORDER OR BUYER’S ACCEPTANCE OF MAZAK’S PROPOSAL OR AGREEMENT, IS EXPRESSLY LIMITED TO AND CONDITIONED UPON BUYER’S ACCEPTANCE OF AND ASSENT TO, THESE TERMS AND CONDITIONS AND THOSE REFERRED TO HEREIN. ANY ADDITIONAL, INCONSISTENT OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENTS SUBMITTED BY BUYER TO MAZAK AT ANY TIME, WHETHER BEFORE OR AFTER THE DATE HEREOF, ARE HEREBY EXPRESSLY REJECTED BY MAZAK. BUYER ACKNOWLEDGES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ITS PURCHASE ORDER OR OTHER DOCUMENTS, RECEIPT AND ACCEPTANCE BY BUYER OF MAZAK PRODUCTS SHALL CONSTITUTE ACCEPTANCE BY BUYER OF THESE TERMS AND CONDITIONS. ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY MAZAK AT ITS OFFICE AT 2725 GALVIN COURT, ELGIN, ILLINOIS. MAZAK SALES PERSONNEL AND DISTRIBUTORS ARE NOT AUTHORIZED TO ACCEPT ORDERS ON BEHALF OF MAZAK
3. PRICES; TAXES; DELIVERY. Prices are subject to change by MAZAK without notice to Buyer for reasons including, but not limited to: (1) alterations in specifications, quantities, designs or delivery schedules; and (2) increases in the cost of fuel, power, material supplied or labor. . Prices do not include taxes, which are separately itemized, including, but not limited to, excise, sales, use, property or transportation taxes relating to the sale of the Products.. BUYER shall be responsible for collecting and/or paying any and all such taxes, levies, governmental charges or surcharges applicable to the Products, or the sale or use thereof, whether now in effect or hereafter imposed. BUYER shall indemnify and hold MAZAK harmless from and against the imposition and payment of such taxes. Unless otherwise mutually agreed upon in writing, all Products shall be shipped F.O.B. point of origin, except that (i) Products shipped from outside the continental United States shall be shipped F.O.B. Port of Entry.
4. PAYMENT. Unless otherwise agreed in writing, BUYER shall pay MAZAK 100% of the invoice within 30 days from the date of invoice. BUYER shall be assessed a late charge of 5%, plus interest of 1.5% per month will be charged on any past due amount. Additionally, a service fee that will not exceed 9% of the total invoice price will be charged if MAZAK is required to utilize a collection service to collect any delinquent account. MAZAK reserves the right to revoke any credit extended to BUYER because of BUYER’s failure to pay for any Products when due or any other reason deemed to be good and sufficient by MAZAK. MAZAK shall have no obligation to make, sell or ship any Products to BUYER if at any time MAZAK has reason to believe that the financial responsibility of BUYER is impaired or unsatisfactory to MAZAK, or if at the time of such sale or shipment, BUYER is delinquent in the payment of any account to MAZAK. In the event that BUYER shall be in default of any terms and conditions hereof, or becomes insolvent or proceedings are instituted do declare BUYER bankrupt, or a receiver is appointed for BUYER in any court, MAZAK may at its option terminate or suspend its obligations hereunder and/or declare any and all amounts due and owing to MAZAK to be immediately due and payable, together with any and all attorneys fees and costs incurred by MAZAK in enforcing its rights hereunder, all of which MAZAK may sue for and recover from BUYER.
5. RETURN OF PRODUCTS. BUYER may not return the Products sold hereunder unless it first obtains written authorization from MAZAK. MAZAK does not guarantee that it will accept returned Products. BUYER shall bear all return shipping costs and risk of loss F.O.B. MAZAK’s place of business.
6. RISK OF LOSS. Notwithstanding Section 3 hereof, all risk of loss or damage shall pass to BUYER, and delivery shall be deemed to be completed, upon delivery of the Products to the carrier, its agent or designee, or upon moving the Products into storage, whichever shall occur first, at the point of shipment.
7. SECURITY INTEREST. MAZAK reserves, and BUYER hereby expressly grants to MAZAK, a continuing purchase money security interest in the Products sold and delivered to BUYER, whether presently in the possession of the BUYER or hereafter acquired, together with any and all proceeds of sale or other disposition of the Products, including, but not limited to, cash, accounts, contract rights and chattel paper. As a condition precedent to the sale of the Product, BUYER agrees to execute, and hereby appoints MAZAK as its attorney-in-fact to execute on BUYER’s behalf, any documents requested by MAZAK which are necessary for attachment and perfection of its security interest. BUYER shall keep the Products free from any adverse lien, security interest or encumbrance. If BUYER defaults, MAZAK will have all the rights of a secured creditor under the Uniform Commercial Code in force in the state where the Products are located and MAZAK may enter the BUYER’s premises to remove the Products. If any Products are placed on any real property subject to any mortgage, lien or encumbrance, BUYER shall ensure that the Products shall be expressly excluded from the terms of such mortgage, lien or encumbrance.
8. SHIPMENT AND PRODUCTION ESTIMATES. The shipping date is estimated upon the basis of immediate receipt by MAZAK of BUYER’s acceptance of the Agreement or of MAZAK’s acceptance of BUYER’s purchase order and all information required to be furnished by BUYER. MAZAK shall, in good faith, endeavor to ship by the estimated shipping date but reserves the right to vary such date free of any liability to BUYER, notwithstanding any commitment or representation to the contrary. Notwithstanding any provisions by MAZAK to the contrary, MAZAK shall not be responsible or liable for any loss or damage whatsoever incurred by BUYER, including loss of income, profits, incidental, special or consequential damages resulting from MAZAK’s delayed performance in shipment and/or delivery of the Products for any reason whatsoever. Production data, where given, is estimated only based upon the Products being maintained and operated under normal working conditions with competent, trained operators and maintenance personnel and upon MAZAK’s analysis and understanding of the limits of accuracy, machinability and stability of materials, amount of material to be removed, suitability of designated locating points and handling facilities provided. PRODUCTION ESTIMATES ARE APPROXIMATIONS AND ARE NOT GUARANTEED OR WARRANTED unless otherwise expressly provided in the Agreement. Unless expressly provided by this Agreement, MAZAK makes no warranty or representation regarding part accuracies, which are the responsibility of BUYER.
9. PHOTOGRAPHS. Photographs, illustrations, brochures, manuals or advertising materials represent in general the Products offered, but are not binding in detail. Only written detailed specifications shall be binding.
10. WEIGHTS AND SPECIFICATIONS. All weights, measurements and powers given by MAZAK are estimates stated as correctly as practicable. Any minor deviations shall not invalidate the sale of the Products or entitle BUYER to any price adjustment. Only the written detailed specifications shall be binding.
11. INSTALLATION AND ACCEPTANCE. Installation by MAZAK shall be deemed to have occurred upon the execution of the Mazak Installation Form by a Mazak Service Engineer. Except as otherwise set forth in this Section 8 or in MAZAK’s Installation Form, MAZAK shall have no obligation to provide any erection or installation services in respect of the Products. BUYER shall be solely responsible for timely site preparation for any erection, installation, warranty or other services that MAZAK may provide. Unless BUYER provides MAZAK with written notice, within forty- five (45) days after the date of shipment, of (i) any incomplete item with respect to the order of the Products or (ii) any defect in the Products, then BUYER’s acceptance of the Products shall be deemed to have occurred on the earlier of BUYER’s written acceptance to MAZAK or on the forty-fifth (45th) day after the date of shipment. In the case of proper and timely written notice to MAZAK from BUYER, then BUYER’s acceptance shall be deemed to have occurred on the date MAZAK reasonably corrects such incomplete order or defect. Notwithstanding the foregoing, any assignment of the Products by Buyer to a bank or other financing company for the purpose of an equipment lease or other financing transaction shall be deemed to be an acceptance of the Products.
12. CANCELLATION BY MAZAK; REMEDIES FOR BREACH. MAZAK may, by written notice to BUYER and without any liability, cancel BUYER’S order if BUYER (i) fails to perform any of the terms and conditions hereof and does not cure such failure within a period of ten (10) days after receipt of written notice from MAZAK specifying such failure, provided that, no such cure period shall apply to BUYER’s failure to pay in a timely manner; (ii) in MAZAK’s opinion, has not established or maintained credit to meet promptly the payment terms of MAZAK’s Standard Terms of Payment or has defaulted on the payment terms of any other transaction with MAZAK; (iii) becomes insolvent, makes an assignment in favor of creditors, or becomes subject to any bankruptcy, dissolution or similar proceedings; or (iv) is merged into, or all or a substantial part of its assets are sold to, another company. Upon any such cancellation, BUYER shall be liable to MAZAK for a cancellation charge in accordance with Section 10 below. As a non-exclusive alternative to cancellation, MAZAK may, for any reason referenced in subsections (i)-(iv) of this Section 11, without any liability, (a) suspend any of its obligations hereunder (including MAZAK’s warranty obligations), (b) physically render the Product unusable and/or (c) exercise any and all of its rights as a secured creditor under the Uniform Commercial Code.
13. CANCELLATION BY BUYER. (a) Non-Customized Products. BUYER may, by prior written notice to MAZAK, (i) if within thirty (30) days of MAZAK’s acceptance of BUYER’s order, cancel an order for Non-Customized Products, subject to a cancellation charge to be paid to MAZAK equal to ten percent (10%) of the purchase price of such Products or (ii) if more than thirty (30) days has elapsed from the date of MAZAK’s acceptance of BUYER’s order, cancel an order for Non-Customized Products, subject to a cancellation charge to be paid to MAZAK equal to fifteen percent (15%) of the purchase price of such Products plus payment of any costs incurred by MAZAK in performing its obligations hereunder. (b) Customized Products. BUYER shall not cancel any order with MAZAK for Customized Products (or any order for Non-Customized Products which includes any customized or specialized modifications, tooling, options, parts or accessories or added services or runoff that MAZAK has agreed to provide) without MAZAK’s prior written consent. If MAZAK authorizes the cancellation of any such order, then BUYER shall be liable to MAZAK as follows: (i) for cancellation of an order for such Products for which MAZAK’s production is within thirty (30) days of the scheduled completion date, MAZAK shall complete such production and hold such Products for BUYER’s disposition, with BUYER liable to MAZAK for full payment within thirty (30) days after completion, or (ii) for cancellation of an order for such Products for which MAZAK’s production is not within thirty (30) days of the scheduled completion date, BUYER shall pay MAZAK (A) the actual costs and overhead expenses, determined in accordance with generally accepted accounting principles, for work in progress, order entry expenses, engineering process expenses and costs of materials and supplies procured or for which definite commitments have been made by MAZAK in connection with BUYER’s order and (B) fifteen percent (15%) of the contract price of the order. Unless otherwise agreed by MAZAK in writing, under no circumstances shall BUYER have the right to delay shipment, delivery or acceptance of Products hereunder.
14. LIMITED WARRANTY; REPAIR/REPLACEMENT REMEDY. MAZAK warrants Part purchases installed by Mazak or Authorized Service Affiliates for a period of 90 days. MAZAK will repair or, if determined appropriate by MAZAK, replace any Part which is (i) determined by MAZAK to be defective and (ii) is returned within said 90 day period to MAZAK at its factory at 2725 Galvin Court, Elgin, Illinois, or such other place as MAZAK may designate in writing, with all transportation charges prepaid by BUYER. MAZAK’s repair/replacement costs are limited only to repair or replacement (at MAZAK’s option) at MAZAK’s designated location. Return of any repaired or replaced Part to BUYER shall be at BUYER’s risk and expense. This repair/replacement remedy also is conditioned upon BUYER furnishing satisfactory evidence that the Part alleged to be defective has been properly maintained and correctly operated under normal conditions with competent supervision and within the operating limits for which such Part is offered and sold. This remedy shall not apply to any Part that has been subjected to misuse, abuse, neglect, or improper storage, handling, maintenance or operation. BUYER shall be solely responsible for proper training of all persons operating, maintaining or programming the Product which the Part is used. Should the services of a field service technician be required, MAZAK shall make every reasonable effort to send a technician as soon as practicable. Without liability, MAZAK shall have the right to withhold repair or replacement service on any Product in the event that BUYER’s accounts with MAZAK are not current. MAZAK’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF MAZAK (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 FOR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL MAZAK OR THE MANUFACTURING AND SELLING PARTIES BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOST SALES OR LOSS OF USE OF ANY PRODUCT WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF THE SELLER AND/OR THE MANUFACTURING AND SELLING PARTIES. IN ADDITION, THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCTS OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, UNINTENDED USE, IMPROPER STORAGE AND TO PRODUCTS WHICH HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, OR REWORKED BY ANYONE NOT APPROVED BY MAZAK. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION 13, BUYER’S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED, AT THE SELLER’S EXCLUSIVE DISCRETION TO (1) REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCTS OR PART THEREOF; OR (2) RETURN OF THE PURCHASE PRICE PAID IN EXCHANGE FOR RETURN OF THE PRODUCTS. No agent, employee or representative of MAZAK has the authority to bind MAZAK to any affirmation, representation, or warranty concerning the Products sold hereunder. The sole purpose of the stipulated exclusive remedy provided for herein shall be to provide BUYER with repair or replacement of defective Parts in the manner provided for herein. Such remedy shall not be deemed to have failed of its essential purpose so long as MAZAK is willing and able to repair or replace defective Parts in the prescribed manner. Any claim or action by BUYER arising out of or in connection this Agreement or the Part, whether in contract, tort or otherwise, must be commenced within 90 days after the cause of action has accrued or be barred.
15. NO RIGHT OF SET OFF. BUYER has no right to deduct or set off from the purchase price of the Product any damages or costs incurred by BUYER as a result of any action on the part of MAZAK or otherwise.
16. PROPRIETARY INFORMATION. This Agreement and all notes, brochures, technical information concerning processes, devices, machines, marketing strategies and techniques, catalogs, listings, sales forecasts, agreements, know-how, designs, drawings, specifications, data sheets, memoranda, correspondence or special purpose manufacturing prototypes or samples (“Proprietary Information”) supplied to BUYER by MAZAK are, and shall remain, the property of MAZAK and may be covered by one or more MAZAK patents, patent applications or copyrights. BUYER shall not at any time disclose or make available to any person, firm or corporation, other than MAZAK, Proprietary Information or use such information for any purpose other than the purposes for which supplied hereunder, and shall provide effective security measures to prevent unauthorized persons from obtaining Proprietary Information. All technical, industrial and commercial information and material that BUYER discloses heretofore and hereafter to MAZAK is on a non-confidential basis. MAZAK grants no rights to BUYER under any MAZAK patent, design patent, copyright, trademark or know-how, except as may be necessary to fulfill MAZAK’s obligations under BUYER’s order.
17. INDEMNIFICATION. BUYER agrees to indemnify, defend and hold MAZAK harmless from and against all judgments, decrees and costs (including attorneys’ fees) resulting from BUYER’s use and/or resale of the goods delivered hereunder. Further, without limiting the generality of the foregoing, if the goods delivered hereunder are to be prepared for manufacture according to BUYER’s specifications, BUYER shall indemnify, defend and hold MAZAK harmless against any claims or liability for patent or trademark infringement on account of such preparation or manufacture.
18. FORCE MAJEURE. Except with respect to the payment of monies due hereunder and BUYER’s obligations under Sections 16 and 17 hereof, neither party hereto shall be responsible for failure to perform hereunder or for any loss or damage due to causes beyond its reasonable control, including but not limited to acts of God, fires, civil disobedience, war, acts of terrorism, riots, strikes, work stoppages, floods, water/elements, changes in governmental requirements or inability to secure equipment, raw materials or transport. Notice to this effect (“Notice of Force Majeure”) shall be given at once to the other party. Performance shall be resumed as soon as practicable after the cessation of the cause of a delay.
19. HIGH VOLTAGE GOODS. Sales of Products that consist of replacement components for high-voltage enclosure areas of MAZAK laser machines (“High-Voltage Components”) are expressly conditioned on the BUYER’s agreement that the sale is made in conjunction with a service call performed by a MAZAK certified and authorized technician. In no event should BUYER attempt to access high voltage enclosures on MAZAK laser machines other than through a MAZAK certified and authorized service technician. MAZAK’s issuance of an invoice for the sale of High-Voltage Components prior to the service call by the MAZAK certified and authorized technician in no way constitutes a waiver of this provision.
20. EXPORT CONTROL LAW. The Products, commodities, materials and related information covered by this order are subject to the export control laws of the U.S. The BUYER shall not knowingly sell, export, transfer, or dispose of, whether directly or indirectly, the Products, commodities, materials, and related information covered by this order to, destinations, third-parties, or end-users that are prohibited under U.S. law. If U.S. Government authorization is required for any sale, export, or transfer of the commodities, materials, and related information, the BUYER shall notify MAZAK and obtain the appropriate authorization from the U.S. Government prior to any sale, export, or transfer.
21. GOVERNING LAW, JURISDICTION, VENUE and WAIVER. Except for the perfection of any security interest or lien in any other state and as otherwise provided herein, the Agreement, and BUYER’s purchase of the Products, shall be governed and construed in all respects of the internal laws and decisions, other than conflict of law provisions, of the State of Illinois, including, without limitation, all matters of construction, validity, enforceability, and performance. In no event do the parties intend that the United Nations convention for the international sale of goods apply to any dispute arising out of, or related to, this agreement or the relationship governing the parties hereto. BUYER (I) CONSENTS AT MAZAK’S ELECTION AND WITHOUT LIMITING MAZAK’S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT (FEDERAL OR STATE) SITUATED IN THE COUNTY OF COOK AND STATE OF ILLINOIS; (II) WAIVES ANY OBJECTION TO IMPROPER VENUE AND INCONVENIENT FORUM; AND (III) CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED TO BUYER AT ITS ADDRESS. BUYER HEREBY WAIVES TRIAL BY JURY. BUYER FURTHER WAIVES ANY PUNITIVE DAMAGES FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE SALE OF PRODUCTS OR THE RELATIONSHIP OF THE PARTIES HERETO UNLESS OTHERWISE AGREED IN WRITING BY THE PARTIES. BUYER shall bring any action arising out of these terms and conditions only in the federal or state courts in the County of Cook, State of Illinois. In the event BUYER institutes any action in any court other than a court located in the County of Cook, State of Illinois, BUYER shall assume all of MAZAK’s costs in transferring said proceeding to a court located within the County of Cook, State of Illinois, including, without limitation, reasonable attorneys fees.
22. ARBITRATION OPTION. AT THE SOLE OPTION OF MAZAK, ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT MAY BE REFERRED TO BINDING ARBITRATION, WHICH SHALL BE ADMINISTERED BY, AND CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL RULES OF, THE AMERICAN ARBITRATION ASSOCIATION, WITH THE HEARING THEREIN TO BE HELD IN THE COUNTY OF COOK, STATE OF ILLINOIS..
23. MISCELLANEOUS PROVISIONS.
a. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior oral or written agreements, quotations or understandings heretofore in force between the parties relating to the subject matter hereof. There are no agreements between MAZAK and BUYER with respect to the Products except those specifically set forth in and mad e part of this Agreement. Any additional terms, conditions and/or prices are rejected by MAZAK.
b. If any term of condition or part of these terms and conditions is held invalid, the remaining terms and conditions of this Agreement shall not be affected thereby.
c. These terms and conditions may be modified, cancelled or rescinded only by written agreement of both parties executed by their duly authorized agents.
d. Notwithstanding any expiration or cancellation of BUYER’s order, BUYER shall remain obligated under all those provisions of the Agreement which expressly or by their nature extend beyond and survive such expiration or cancellation.
e. The Agreement shall not be assigned, subcontracted or delegated, in whole or in part, without MAZAK’s prior written consent.
f. All rights available to MAZAK under the Uniform Commercial Code except as specifically limited or excluded hereunder (even though not specifically enumerated), are reserved to MAZAK as remedies available in the event of a default by BUYER.
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.
h. No cause of action arising out of or relating to the Products or any claimed breach of these terms and conditions may be asserted by the BUYER, whether in contract, tort or otherwise, more than one (1) year after the date on which such cause of action first accrued.
i. In the event of any litigation or collection action arising out of BUYER’s purchase of Products, MAZAK shall be entitled to reimbursement from BUYER for its reasonable attorneys’ fees and costs.
© MAZAK OPTONICS CORPORATION, 2005 SF-1000-2 (12/03/07)